text:
    No. 9466.
    The State of Louisiana vs. Richard Johnson.
    Tlie rules which regulate tho confection of transcripts of appeal in civil cases, apply alike in criminal cases.
    A transcript of appeal in a criminal case, which contains no other matters bnt the record of defendant’s motion for a new trial, and which purports to ho such under the certificate of the clerk, is utterly insufficient and cannot sustain an appeal.
    A PPEAL from the Ninth District Court, Parish of Concordia. xX Young, J.

      M. J. Onmiingham, Attorney General, for tho State, Appellee:
    ON MOTION TO DISMISS.
    1. The filing of a transcript of appeal, only purporting to be a transcript of certain parts of tlio trial, and not a record of all of the judicial proceedings absolutely necessary to the validity of a criminal prosecution, is a fault imputablo to appellant, and the appeal will he dismissed. The appellant must bring up a complete transcript of the entire proceedings.
    OH MERITS.
    2. Should tho jury, in a criminal trial, be attended by an unsworn officer during a recess of the court, the verdict will not he set aside, if it affirmatively appears that they were not infitíenced by the inadvertence. 38 111. 514; 72 111. 468; 11 Humph. 169; 4 How. (Miss ) 187; 16 Wis. 333 ; 18 Grat, 933; Wharton Cr. P. and P. § 728.
    3. The mere presence of an unsworn person in the room with the jury, while it is in charge of a sworn officer, will not vitiate the verdict.

      G, F. Boivles for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The attorney general’s motion to dismiss this appeal must prevail.

The transcript which the appellant has filed in this Court, does nob contain a copy of the record in the case of the State vs. Richard Johnson, but it is precisely what it purports to be, a copy of the repord of defendant’s motion for a new trial in that case, and the clerk so certifies.

Hence as a transcript it lacks the most essential requisites of such a document. Besides its absolute insufficiency, it bears evidence on its face that it was made, as it is, under the directions of appellant’s counsel. Hence the fault- is clearly imputable to the appellant himself.

The transcript was filed here on the 28th of April last, a timely motion to dismiss was filed, pointing out its fatal defects; appellant’s brief on the merits was filed on May 16, and yet appellant’s counsel has taken no steps looking to the completion of his transcript.

The rules of practice which regulate the confection of transcripts of appeal in civil cases apply alike to transcripts in criminal causes.

Tested under elementary rules of practice, this transcript is too defective to sustain an appeal. Heirs of Hoover vs. York, 33 Ann. 652.

It is, therefore, ordered, that the present appeal be dismissed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1120.
    The State of Louisiana vs. W. W. Bradley et al.
    A married woman cannot bind herself as surety for her husband.
    A sheriff and ex-officio tax collector is not entitled to deduct from amounts due the State for taxes and licenses and collected by him, the cost of deeds and copies charged to the State, in cases of purchases of lands sold for taxes and bought by the State. In the absence of any law on the subject, the court cannot permit the deduction or charge or direct the allowance. Such a demand is reconventional in character and is not plead-able against the State.
    The conclusions of a district judge in the adjustment of claims between litigants involving accounts running through several years, will not be disturbed on appeal, where the same appear to be correct on their face and the aggrieved party has failed clearly to show error and injury.
    APPEAL from the Twenty-seventh District Court Parish of West Carroll. Williams, J.

      Jf. J. Cunningham, Attorney General, and P. H. Toler, District Attorney, for Plaintiff and Appellee.

      II. F. Wells for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action against the sureties of a defaulting sheriff, as tax collector, to recover $7635.34 with interest; restricting the liability of each to the amount for which the bond was signed by him.

The defense implies an acknowledgment of the claim, but sets up, for the main portion of it, payment, purchases of lands by the State, the return of blank licenses and of delinquent lists, also counter claims. It besides sets forth error in the accounts sued on by the State, which cover the space of five years.

There was judgment for the State to the extent of about $3700 with interest as specified, limiting the liability of the sureties, to the amount for which they respectively bound themselves in the bond. The demand of the State was rejected, as regards the widow of the delinquent tax collector, who had also signed the bond.

The sureties condemned have appealed and the State has asked an amendment of the judgment so as to recover the full amount claimed.

The judgment relieving the wife as surety of her husband, is fully sustained by the law, which prohibits sucli suretyships. The acceptance of such bond is censurable.

The appellants specially complain that the lower court made no allowance for anitem of $748.15, which the tax collector was entitled to recover from the State, for deeds and copies to property sold for taxes and bought in for the State.

We have been referred to no authority which authorizes such a charge and we know of none, which can justify its deduction from the revenues of the State, at the time of payment into the treasury.

The claim is in the nature of a reconventional demand, which is not pleadable against the State and cannot be sustained.

In the case of State vs. Barrow, Manning’s Unrep. Cases, p. 332, this Court has had occasion to consider and determine an analogous question, involving the’right to fees of an attorney employed for the State,

It then held that, where the law has not fixed the rate of an attorney’s commission and no rate has been agreed on with the auditor, under a law authorizing that officer to fix the rate, the court would not make the allowance, which was within the provision of the legislature.

■ So say we, in the present controversy. If the defendants, in the name of their defaulting principal, are entitled to a credit for the cost of the deeds and copies issued to the State, they must address them selves to another department of the State government.

A part of the matters of fact involved in this litigation, was referred to experts whose report is in the transcript.

The district judge, before whom the case was developed and who passed upon it, took particular pains to examine critically the claims and counter ¡claims of the litigants and, in a written opinion which commands itself to approval, has reached the conclusion that the State was entitled to recover in part.

We have followed him in his operations and are satisfied that his allowances and disallowances are correct and have done substantial justice between the parties.

Wo deem unnecessary to consider expressly the various bills of exceptions taken by the State, further than to say that we have given them full attention and find that they present no merit. Even if well founded, the State would not be materially benefitted thereby.

Judgment affirmed with costs.

Fenner, J., absent during the argument, takes no part.


author: Poché, J.

text:
    No. 1121.
    Henrietta Glass and Husband vs. Axie E. Meredith and Husband.
    A married woman cannot legally be held i esponsible as a negotiorum gestor, during tbo existence of the community, even under a showing that she had made use of funds received by her husband for the account of a minor, either as an intermeddler or as the tutor of said minor.
    In a suit'againstXnuu'iied tornan duly separated in property from her husband, no judgment can be rendered against the latter, who is only a nominal party to assist his wife.
    APPEAL from the Fourth District Court, Parish of Caldwell. Bridger, J.

      Wear & Barry for Plaintiffs and Appellees.

      Boatner & Boatner for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Henrietta Glassl,is]the^niece of A. E. Meredith, the defendant, by whom she was 'taken at the age of two years, after the death of her father and mother, raised and educated and with whom she lived until the year 1882, when she married at the age of twenty-five years.

The defendant is the wife of Iverson A. Meredith, from whom she was judicially separated in property in the year 1872.

Together, and by act in due form, they adopted plaintiff as their child in the year 1872, having had no issue of their marriage.

The object of plaintiff in this suit is to obtain a judgment against defendant, her aunt, for certain movable property consisting of cattle and of a horse, alleged to have been received for her by the defendant; for the recovery of a sum of $886 69 alleged to have been received for her from the succession of her maternal grandfather; for the additional sum of $1325 as proceeds from the sale of some of her cattle, and for revenues derived from the others; for $225 for the use of her horse, and finally for the sum of $600 as compensation for household work, which she performed during a series of years at defendant’s house.

In her answer, the defendant denies that she has received any property or money for account of plaintiff, but avers that her inheritance, consisting of cattle and of money, was received by her husband, I. A. Meredith, who had been appointed tutor to plaintiff, and who alone is accountable therefor. She also reconvened for all sums disbursed by her for the maintenance and education of plaintiff.

The district court rendered judgment in favor of plaintiff in the sum of $830 00 and interests, subject to a credit of $300 00 allowed to defendant on her reconventional demand; the judgment was also in favor of plaintiff, recognizing her ownership of one horse and of 51 head of cattle, condemning defendant in default of due delivery of the same, to pay to plaintiff, as the estimated value thereof, the sum of $483 00 and legal interests.

Defendant appeals, and plaintiff prays for an amendment of the judgment, with a view to an increase of the amount allowed her, and to the entire rejection of the reconventional demand.

The record shows that plaintiff did inherit the sum of $830 00, some 20 head of cattle and one horse from the succession of her grandfather, and that all her inheritance went into the possession and control of either defendant or of her husband.

Plaintiff contends for the theory that all of it went into the hands of her aunt, the defendant; and the latter holds that it went into the possession of her husband.

A careful examination of the voluminous record in the case, and a patient analysis of the evidence, have led us to the conclusion that the preponderance of the proof in the case, both documentary and parol, is in favor of defendant’s theory.

It may be, as contended for by plaintiff, that some of the funds accruing to her from the succession of her grandfather were used in the payment by defendant of a part of the purchase price of a plantation which she acquired after her separation of property from her husband; but the record shows to our entire satisfaction that the funds were not paid over to her by the administrator, but that they were paid to the husband, whose receipt for the same, in his capacity of tutor, is in the record. This is corroborated by the testimony of the administrator and by other satisfactory testimony. We note plaintiff’s contention that Meredith had not heen legally qualified as tutor; but we are not concerned with that question, under the simple issue which we are called on to determine under the pleadings.

Plaintiff’s right of recovery depends upon proof that her funds and other property had been received and appropriated by the defendant after her capacity to contract such an indebtedness had been restored to her under the effect of. her separation of property.

The record is absolutely barren of any such proof. We note that defendant does not formally set up title in herself to the undivided half of the cattle which plaintiff claims and which she had caused to be sequestered in this suit. In a proper litigation with Meredith, in whose possession the cattle were found, plaintiff may recover her alleged interest therein, but surely not in the present litigation, in which Meredith is only a nominal party for the purpose of assisting his wife, and in which no judgment is sought against him.

Were it not for his alleged insolvency, we are quite certain that this suit would not have been brought against his wife. •

In disposing of the claim in reconvention we adopt the suggestion of defendant in her testimony, wherein she says that during the time that plaintiff was living with her, it never entered into the mind of either to make claims and counter claims for expenses of education andjmaintenance or for services.

Our conclusion is that the judgment is erroneous on both demands.

Under these views, we obviate the necessity of discussing several exceptions which had been interposed by the defendant, and several bills of exception which contribute to swell the dimensions of the record.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; that the demands of both plaintiff and defendant be rejected—and that plaintiff’s action be dismissed at her costs in both courts.


author: Manning, J.

text:
    No. 1135.
    Narcissa J. Baker vs. J. E. McGuire, Sheriff, et al.
    It is not against good morals and public policy for a plaintiff to allege that she confessed judgment in favour of one to whom she owed nothing for the purpose of erecting a scarecrow to frighten away, not her own creditors, but the creditors of another who had no claim upon her or her property. An exception of no cause of action based on this ground will nob be sustained.
    APPEAL from, the Fifth District Court, Parish of Ouachita. Biehardson, J.

      Potts & Hudson and T. 0. Benton for Plaintiff and Appellant:
    1.On trial of an exception of no cause of action all plaintiff’s allegations must be taken as true.
    2.One seeking to enforce and profit by what he terms an immoral agreement cannot invoke the rule “ Nemo allegans suam turpitudinem audiendus est” against one socking to protect himself from its effects. O. P. Art, 19; 0. 0,1893, In the instant case the defendant pleads this rule to enable him to enforce what he dawns to be an immoral contract!

    3.It is not immoral to desire freedom from litigation. As to immortality of purpose, see 6 . Martin, 542, par. 2, 3 and 4, It is not immoral for the wife to protect her property against the claims of her deceased husband’s x>roperty.
    4.An attempt to prevent or avoid litigation, with a view of saving attorney’s fees, where that litigation must result in injury to all parties, the attacking and the attacked, should he encouraged.
    5.The creditors of the husband have no claims nor rights upon the paraphernal property of the wife, and a desire to avoid attacks from them is not immoral.

      Boatner & Boatner for Defeudants and Appellees:
    Plaintiff demands the nullity of a judgment upon the ground that it is a simulation, represents no debt and was compassed for the purpose of imposing an apparent judicial mortgage upon property, and to protect the property from pursuit of creditors.
    Such an action is contrary to good morals and public policy, and cannot he heard in a court of justice. 1 Ann. p. 69; 2 Ann. 60; 31 Ann. 571. “Nemo allegans suam turpitudinem est a/adundum.”
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is the widow of W. J. Q. Baker. In January 1882 she signed a confession of judgment in favour of Tobias Purcell and the judgment was rendered on proof of her confession and was recorded. The amount was twenty-five hundred dollars. Purcell died and his executor issued execution upon this judgment and the sheriff seized a tract of land of the plaintiff and advertised it for sale in June 1883. Mrs. Baker injoined the sale by this suit.

■ Her allegations are that her late husband was greatly involved and that she had acquired a home through the generosity of her aunt, that Purcell was her friend and confidential adviser in business and that he told her there was great danger that her husband’s creditors v ould try to make their money out of her land and would subject her to harassing and expensive litigation—that the best way to prevent that was to confess a judgment in his favour for a sum large enough to protect her property which being recorded would serve as a legal scarecrow to the threatening creditors—that she owed Purcell only “ a trifling amount” and signed the confession in error having been induced thereto by the fears implanted in her mind by the representations of Purcell of impending danger—that a counter-letter setting out the simulation of the affair was signed by Purcell and delivered to her and remained in her possession some months but was handed back to Purcell to have a slight error corrected and he died without returning it, and that she has sought to have search made among his papers for it but it has not been found.

The defendant executor peremptorily excepted that the petition discloses no cause of action, that the acts and doings therein alleged are contrary to good morals and public policy and cannot be considered by a court of justice. The lower court sustained the exception, dismissed the suit, and dissolved the injunction. The plaintiff appealed.

The ruling is error. The allegation is not that she apprehended pursuit by her own creditors and interposed this seeming obstacle to them, or that she contrived or assented to a scheme the object of which was to deceive any person who had a legitimate claim upon her property. The only fear alleged is that the creditors of another might attempt to pursue her and might attempt to subject her property to the payment of debts not her own. There is therefore no allegation of an act of her own or a combination of herself and a confederate to perpetrate a fraud to the prejudice of any one, but merely the adoption by her of a device that was to enable her to hold what was her own against the assault of those who had no right to it, and there is an allegation that the truth of the whole matter is set out in a counter-letter which she and the only other person concerned signed.

The bare question is whether it is against decency and good morals to allege that one adopted a certain method to screen her property from the attack of another who had no claims upon it, and when no fraudulent intent is averred and no act is alleged to have been done of a fraudulent character.

The counsel for the defendant invokes the rule that a confession of judgment cannot be avoided by an allegation of error of law though it may be by an error of fact. Rev. Civ. Code art. 1846. But we have not reached a stage of the case when that can be considered. The sole question now is, must the plaintiff be turned out of court because she has alleged what good morals and public policy does not permit her to allege, and upon that question we differ from the court below.

It is therefore ordered and decreed that the judgment of the lower court is reversed and the cause is remanded for further proceedings the costs of appeal to be paid by the appellee.


author: Fenner, J.

text:
    No. 1129.
    Beverley Towns and Wife vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    The doctrine of non-liability of master to servant for iüjury resulting from fault of fellow-servant applies only when the fellow-servant’s fault is the sole cause; but where the injury is attributable only partly to the fellow-servant’s negligence and partly to the failure of the company to provide proper and suitable apparatus, the negligence will not exonerate the compauy from liability for its own fault.
    While a railroad company is not the insurer of its employés and is not bound to provide the best possible means and appliances, it is bound to exercise reasonable and ordinary care to provide such suitable and safe apparatus as common experience shows to be proper in order to avoid exposing their employés to unnecessary danger.
    A principal, if not the main, object of the buffers or draw-heads, usually attached to cars, is to prevent collision of cars in coupling and thereby to protect the brakeraen who are compelled to stand between the cars in coupling.
    Such provision is so ordinary and essentia] that their omission would be inexcusable negligence. Yet the use of cars of such unequal height that the buffers are inoperative, is more dangerous, because the defect is less observable.
    In general freight trains, where the cars of many different companies are congregated under the necessities of through freight, it may be that, as there is no law compelling all companies to use cars of the same height and construction, the company might be excusable for using cars of unequal height; but in a construction train and where the cars all bolong to the company itself and where the above excuse is inoperative, the construction and use of such cars is certainly negligence.
    The death of the decedent in this case was caused by the failure of the company to place on its oars buffers, which, would accomplish the purpose for which they were designed; and, there being no fault on decedent’s part and no assumption of such a risk, and no valid excuse for the company’s negligence, the company is liable.
    APPEAL from the Fifth District Court Parish of Ouachita. Bichardson, J.

      Boatner & Boatner for Plaintiffs and Appellees.

      A. B. Pittman and Ludeling é Stillman for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The present action is brought by a father and mother for damages for an injury to their son, James Towns, inflicted by the cars of the defendant company and resulting in his death.

The facts are substantially as follows :

James Towns was in the employ of the defendant company as brakesman, on a construction train. At a certain point known as Russtou Station, there were certain idle cars on the track which the conductor had received orders to remove to a side-track in order to make room for an approaching passenger train. At about dark in the evening, the conductor gave orders to the engineer and brakeman to effect the removal. To do this, it was necessary to run the train down to the stationary cars in order to couple with and draw them away.

The brakesman, Towns, in the performance of his duty and in obedience to tlie orders of his superiors, stood by to effect the coupling. He had placed the coupling pin in .the hind-most car of the train, and then taking his position by the car which was to be attached, to be ready to make the coupling, gave the signal with his lantern for the engineer to back his train. The engineer obeyed the order. The train approached, and on reaching the car the coupling pin struck the draw-head and broke. The two meeting cars being of unequal height, the buffers or draw-heads did not meet, but one being elevated above the other, they passed each other, and the cars themselves came into collision, mashing the body of the unfortunate brakesman and inflicting upon him fatal injury.

, The plaintiffs charge that the defendant is responsible on the grounds that the injury was attributable to the combined causes of, first, the reckless carelessness of the engineer in throwing'back his engine with heavily loaded cars attached, against the stationary car with unusual and excessive speed; and, second, the insufficient and unsafe appliances which were provided for the coupling of the cars.

The company defends on the following grounds: •'

1. Contributory negligence of Towns.

2. That che company is not responsible for the negligence and carelessness of the engineer, who was the fellow-servant of Towns in a common employment.

3. That the inequality in the height of the cars and the consequent inefficiency of the buffers is not such a defect in the appliances and apparatus furnished by the company as constitutes legal negligence.

So far as the charge of contributory negligence is concerned, it has not the slightest foundation. The brakeman was where he was in the performance of his duty and in obedience to orders. There was ho call for him to jump out of the way, because his duty required him ordinarily to remain; and the evidence is that his position 'did not enable him to judge of the speed at which the train was thrown back or to anticipate that he would not, in any event, be protected by the buffers.

If the accident had been occasioned exclusively by the negligence and carelessness of the engineer, perhaps the defense of common employment might prevail. That doctrine has not had extensive application in this State, but it lias nevertheless been recognized. Hubgh vs. Railroad.

There is a tendency in modem jurisprudence and legislation to limit the extreme operation which has been given to it by the courts of this country and of England. In the latter country the Parliament has intervened by the legislation known as the “Employers’ Liability Act ”

And here the Supreme Court of the United States has, in a very recent decision, placed a very important limitation upon it, by holding that the conductor of a train, who has the right to command and control the train and the employees, does not bear the relation of fellow-servant to the latter, and that the company is responsible to them for injuries resulting from his neglect of duty. R. R. Co. vs. Ross, 112 U. S. 377.

No doubt this principle might receive extension to other relations between officers having the right to command and subordinates subject to such command.

However, in the particular operation of coupling trains, doubtless the relations between engineer and brakeman have all the features of fellow-service; and, as already intimated, if the engineer’s negligence were the sole cause of the injury, the overwhelming weight oí authority would exempt the company from liability.

But it is now settled upon the very highest authority that where the injury is caused partly by the negligence of a fellow-servant and partly by the failure of the company to provide proper and suitable apparatus, the negligence of the co-servant will not exonerate the company from the consequences of its own default. Grand Trunk R. R. Co. vs. Cummings, 106 U. S. 700; Ellis vs. R. R. Co., 95 N. Y. 546.

In this case the evidence is conflicting as to whether the engineer was, in fact, guilty of any negligence or of backing with undue speed, and we might say that the evidence against it preponderates. It is, at all events, sufficiently established that the speed was not such as to have inflicted any injury upon the brakesman, had the buffers of the cars been in such position as to operate.

The question then remains whether the use of cars of such unequal height as to render their buffers useless, and the ordering of the coupling of such cars at night and without any particular warning,' was, under the circumstances of this case, a violation of the company’s duty to furnish means and appliance reasonably suitable and safe for the servant’s use in the performance of his duty.

It will not be disputed that a principal, if not the main, object of buffers is to prevent the collision of cars in coupling and thereby to protect the brakemen whose duty requires them to stand between the cars in performing that operation.

The provision of such buffers is so ordinary and essential as to make their omission inexcusable.

Now the use in the same train of cars of such unequal height that the buffers pass by instead of meeting each other, is the entire equivalent of omitting them altogether; or, rather, is a much more aggravated fault, because their total absence would be a noticeable warning of the consequent danger, while their presence in a condition of complete inefficiency is equally dangerous and less observable.

There are, doubtless, cases in which railroad companies may use cars of such unequal height and subject their brakemen to the peril of coupling them without being guilty of negligence. Thus, there is no mode oi compelling all companies to use cars of like height and construction, and, in point of fact, they do not do so. Yet the necessities of commerce and, in some cases, the law of certain States, require companies to interchange and transport the cars of each other in carrying out contracts for through freight. Such interchange is essential to the cheap, speedy and convenient transportation of goods, and nearly every ordinary freight train is made up of cars belonging to a number of different companies.

If such cars are found of unequal height and with buffers not cooperative in coupling, the company using them may well repudiate all blame or fault for resulting injuries to its employes, as to whom its duty only requires proper and practicable care in furnishing safe and suitable apparatus. .

We have no doubt that the foregoing considerations had their weight in those decisions which are quoted, holding that the use of such cars is not negligence per se on the part of a company. Indeed, in some of the cases, those considerations are specially referred to.

But they are entirely inapplicable to the case in hand.' The train on which this accident occurred was not a general freight train.

It was a construction train, and there is no showing or pretense that the cars therein or the cars to be coupled thereto, did not all belong to the company itself.

The question, therefore, is: whether it is negligence for a company to construct and use its own cars of such unequal height as to render their buffers useless, and thus to imperil the lives of their brakemen.

In matters of this kind, when one enters upon the study of the infinite number of adjudications which have been rendered by a multitude of courts, he encounters a maze of contradictory decisions and an infinite variety of qualifications of even generally accepted principles, which stupefy the mind and render it impossible to reach a conclusion consistent with them all.

But we think we may safely say that this principle is consecrated by a controlling weight of authority, viz: that while the railroad company is not the insurer of its employés and is not necessarily bound to employ the best possible means and appliances, it is bound to exercise reasonable and ordinary care to provide such suitable and safe apparatus as common experience shows to be proper in order to avoid exposing the lives of their employees to unnecessary danger in the discharge of their hazardous duties.

Certainly, the provisions of cars with buffers is a precaution of such accepted necessity and universal use as to place it within the requirements of the most ordinary reasonable care. If such care requires such provision, it equally requires.that they should be provided in such manner as to effect the purposes for which they are designed; and a neglect to make such provision is unquestionably a fault rendering it responsible for resulting injuries, unless, at least, it were clearly shown that the employee, fully cognizant of the defect, had voluntarily and intelligently accepted the hazard.

There is no sufficient evidence that such was the case here. The coupling took place at night. It was in a train of cars belonging to the company and, as to which, there was no reason to suspect such a defect. There was no time or opportunity to measure the height of the cars to be connected, and even though the use of the “goose-neck” link might have suggested some difference, it did not at all follow that the difference was such as would permit the buffers to pass each other without sufficient contact to prevent collision.

We find it impossible to say that the brakemen knew or accepted the risk of so great a defect.

We find this case to be completely covered by a recent decision of the Court of Appeals of New York analagous to this in every essential respect. The party injured was a brakeman ; the injury resulted from a like defect in the cars; the defense was the same as in this case. The court said: It is no doubt settled in this State that an employé of a railroad company takes the natural risks of his employment and among others the risk of injury resulting from the negligence of his fellow-servants.

This rule, however, has no application, if the company has at the same time disregarded its obligation to provide suitable cars or other necessary apparatus, so that the injury is not entirely caused by the negligence of the fellow-servant, but, in part at least,'is the result of that omission of duty. In such a case the negligence of the co-servant will not exonerate the company from the consequences of its own default. Here it was the duty of defendant to provide a car properly fitted, not only with the running apparatus, as wheels, stopping apparatus, as a brake, but witli buffers of some kind to protect the car and its servants necessarily orl lawfully thereon from the effect of a collision. Ordinary and usual care in the equipment and running of a road requires this last appliance or some equivalent contrivance as much as it does neither of the others. There was, in effect, no buffer or anything to take its place on the cars upon which the intestate was employed. * * * The death of the decedent was, therefore, caused by the omission of the defendant to place buffers where they belonged. For any useful or usual purpose, the ones in question might as well have been placed on the top or at the side of the car as where they were.” The statement of facts shows that the cars were provided with buffing apparatus, but at such different elevations that, instead of meeting to receive the concussion, they were ineffectual for any useful or designed purpose.” The court held the company liable. Ellis vs. Railway Co., 95 N. Y. 546.

It is not to be denied that the learned counsel for defendant has referred to decisions opposed to the above; but the latter commends itself equally to our reason and sense of humanity.

The vast development of railroads, the immense army of servants whom they employ and who adopt such service as their exclusive avocation, with many other considerations, emphasize the duty of the companies to provide all reasonable safeguards for their protection in their hazardous employment and not to oppress them with the hard option of either exposing their lives to risk or of abandoning their means of livelihood.

II.

The defense based on Art.- of the Code is disposed of by the decision in Van Ambergh vs. same defendant, just decided.

III.

As to the quantum of damages, we feel bound to reduce it.

The plaintiffs are only entitled to such damages as the deceased himself could have claimed had he recovered at the moment when he died; that is compensation for the suffering endured by him between the accident and death. This was about four hours.

In the Yredemburg case, where the decedent suffered torture during twenty-eight days, we reduced the verdict from $15,000 to $7,500.

In the Poirier case, (35 Ann. 699), where the scalded victim was in agony for twenty-four hours, we reduced the allowance from $12,000 to $2,500.

While we do not pretend to lay down any exact arithmetical rule of proportion in*!the estimate of such damages, yet they must bear some kind of reasonable relation to each other in different cases—with the reserve, however, that the damages should always be substantial.

We think, in this case, the amount allowed should be reduced to one thousand dollars.

It is, therefore, ordered, that the verdict and judgment appealed from be amended by reducing the same to one thousand dollars, and that, as thus amended, the same be affirmed, appellees to pay costs of the appeal.


author: Bermudez, C. J. Manning, J.

text:
    No. 1136.
    Ed. Wentz vs. G. F. Bernhardt.
    As a rule, an action .in damages for false arrest and imprisonment is premature, unless llie suit in which the writ issued has terminated. This is not so, however, where the order dissolving the arrpst, has, before final judgment on the merits, been affirmed on appeal and the judgment thus rendered has become final. '
    A party illegally arrested, even without malice and with probable cause, is entitled to recover actual damages.
    A PPEAL from the Fifth District Court, Parish of Ouachita. ,/_jL Richardson, J.

      T. O. Benton for Plaintiff and Appellant.

      Franlelin Gta/rrett aud Botts & Hudson for Defendant and Appellee:
    1. In suits for malicious prosecutions, it must to alleged and proved tliat tlie prosecution complained of was at an end, otherwise the petition discloses no cause of action. 33 Ann, 222, Lawler vs. Levy.
    2. To establish a claim for malicious prosecution, it must he proved by plain tiff—
    First—That he has been prosecuted and that the prosecution is at an end.
    Second—That it was instituted by defendant maliciously and without probable cause.

      Third—That he has been damaged. 15 Ann. 421, Blass vs. Gregor & Wilson; Greenleaf on Ev„ vol. 2, §§ 453, 454, 449; , 11 Ann. 289, Gould vs. Gardner ,’Sager & Co,; 10 Ann. 537, Talbot va. Stone; 12 Ann. 332; 8 Ann. 12; 9 R. 387.
    3. Where the party causing the arrest acts under the advice of .learnedjcounsel, he',has probable cause. 2 Green., § 459; 11 Ann. 289; 10 Ann. 537.
    4. Attorney’s fees for bringing a suit for damages cannot be allowed." .Only such damages as had been incurred previous to the institution of the suit can be considered."^.35 Ann. 697, Day vs. R. R.; 35 Ann, 465. Campbell va. Short.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action in damages.

The plaintiff avers that, under false and malicious allegations, duly sworn to by the defendant, he was arrested and falsely imprisoned and taken into the custody of the sheriff, and there remained until he was released by order of the court. He sets forth damages and prays for recovery.

The defendant excepted that there was no averment that the suit in which the writ of arrest issued has been finally determined.

This exception was referred to the merits.

By his answer, the defendant resists plaintiff’s pretensions, avers probable causo, absence of malice, action under advice of counsel and bona fieles.

The case was tried by a jury who, after receiving a charge from the judge, returned a verdict against plaintiff, which was confirmed and made the judgment of the court.

The plaintiff contends in this court that the case was once tried by a jury, who returned a verdict in his favor for $4500, which became final at the close of the term, owing to the absence of action of the district judge, on a motion for a new trial taken previously and which was subsequently granted.

It is a part of the history of this case that an application for a mandamus to this Court was refused to compel the district judge to sign a judgment which lie had not rendered. 35 Ann. 873,

There is nothing to show that, after the new trial was granted and the case was called for trial, the plaintiff in any manner objected to the new trial. By his voluntary submission to such trial, he has waived what right he might have had, if any, to the verdict of which he now claims the benefit.

But we are at a loss to perceive how he can aspire after any advantage from that véfdict, for it is quite clear that, by the granting of the new trial, the previous verdict and trial were set aside and the case put in a condition to be determined as though it had never been passed upon.

We think the exception should have been formally sustained.

The suit in which the writ of arrest issued-is still pending, and when decided, may be taken on appeal for review. It may well be that the appellate court may reverse the decree discharging the defendant from arrest. Greeuleaf, 2, § 452; 15 Ann. 421; 16 Ann. 3; 33 Ann. 220.

The action is therefore premature.

Although the judgment appealed from may perhaps he considered as one on the merits, we treat it as one sustaining the exceptions and dismissing the suit.

Viewed as such, it is affirmed with costs.

On Rehearing-.

Manning, J.

In our opinion on the first hearing we held that the proceedings for the arrest must have terminated before an action for damages therefor could be instituted. It appears that the arrest was sot aside by judgment of the district judge and on appeal to the circuit court that judgment was affirmed, and therefore the suit so far as it affected the arrest was ended before this action was instituted, although the main action on the debt is still pending. The suit therefore is not premature.

The jury found for the defendant. The testimony establishes that the plaintiff jiaid fifty Dollars to a lawyer for procuring his release from arrest and he is entitled to recover it. He was not imprisoned and was held in custody about two hours. He lost two months’ employment in consequence of the arrest aud had been receiving $3.50 a day or ninety dollars a month. We shall give $180 for this cause of damage.

Upon a review of the whole testimony we are not satisfied that the plaintiff has any other cause of damage, even if it enabled us to estimate intelligently the amount at which the damage should he assessed.

It is therefore ordered and decreed that our former judgment is set aside, the verdict of the jury is aunulled and the judgment thereon is avoided, and that the plaintiff now have and recover of the defendant Gr. F. Burnhardt two hundred and thirty dollars as damages and the costs of both courts.


author: Pochr, J.

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    No. 1125.
    Heirs of Mary Gryder vs. Hiram Gryder et als.
    In an aotion by tbe joint owners of property, held in nsnfrnct by their father, for the pur pose of destituting him of the usufruct, on the grounds of acts of abuse and waste, it is not sufficient to show tfiafctfie father fias parted witfi or spent some or all of the funds originally belonging to tfie community, and that fie fias made donations of a portion of tfie lands belonging to tfie community.
    Money is tfie subject of imperfect usufruct, and tfie usufructuary is authorized to spend it subject to an accounting at tfie end of tfie usufruct.
    If tfie lands donated by tfie father exceed in quantity or in value fiis legal interest, tfie donation will bo reduced or annulled at tfie final liquidation of tfie community, but tfie donation cannot give rise to a judicial destitution of tfie usufruct.
    A PPEAL from the Third District Court, Parish of Claiborne. I. A. JSgan, Special Judge.

      N. L. Scott and J. M. Richardson for Plaintiffs and Appellants.

      J. W. Holbert for Defendants and Appellees:
    Tfie surviving spouse holding tfie usufruct of one-fialf of tfie community property, under Act ITo. 152 of 1844, during his natural life or until second marriage, cannot be destituted of that usufructuary right by suit, except for second marriage. Act 1844, p. 99, sec, 2 s C. C. 915 and 916*; 19 Ann. p. 14; 11 Ann. 297; 31 Ann. 752; 29 Ann. 520; 3 Ann. 489; 22 Ann. 446 and 499; 5 Ann. 588.
    Tfie omission to inventory tfie community property will not affect tfie usufruct established in favor of tfie surviving spouse, by Act 25 March, 1844. 11 Ann. 297.
    Neither can the surviving spouse, holding tfie usufruct of one-fialf of the oomluunity property, be requirod to give security. 19 Ann. 14; 31 Ann. 752; 32 A. 1267.
    The usufruct conferred by Act of 1844, p. 99. sec. 2, is not governed by tfie law of usufruct as contained in tfie Code under the chapter of usufruct; tfie distinctions are plain and palpable. 31 Ann. 752.
   The opinion of the Court was delivered by

Pochr, J.

Mary Gryder, wife of the defendant, Hiram Gryder, died in November, 1882, leaving seven heirs, issue of her marriage with the defendant, and movable and immovable property belonging to the community, which remained in the possession of the surviving husband as usufructuary.

This suit was brought in August., 1883, by three of the heirs, and its object is to destitute the father of the usufructuary and to obtain a partition by sale of all the property belonging to the community.

The grounds of this action are substantially the acts of abuse of the property committed by the father and waste of the same by means of donations of a portion of the immovable property and a sale of some of the movables.

The defense is a general denial, and the judgment below was in favor of the defendants.

In this Court their counsel submits two points of resistance:

1. The insufficiency of the proof to justify a decree destituting the father of his'usufruct.

2. That the provisions of the civil code touching the judicial extinction of the usufruct for reason of abuse and waste do not apply to the legal usufruct created by Act 152 of 1844, which restricts the extinction of the usufruct to the death or to the second marriage of the usufructuary.

I.

The first charge .submitted by plaintiffs against their father is his neglect or failure to have an inventory made of the community property immediately after the death of his wife.

It was the legal duty of the father to have provokedjsueh an inventory, but the omission of the act cannot be construed as an act of waste of abuse as contemplated under the provisions of the Code, as a ground to destitute Mm of his right of usufruct. The identical point was made in the case of the Succession of Yiand, 11 Ann. 297, and disposed of in favor of the usufructuary.

Plaintiffs next complain of donations to two of their co-heirs by the father of two portions of the land belonging to the community. The record shows that the father intended by those donations to dispose of Ms share in the lands.

It is plain that he has not effectively transferred more than Ms real and legal interest in the lanfis. If, at the end of the usufruct and at the final settlement between the parties, it should appear that the lands donated exceed in quantity or in value the father’s interest in the same, his acts of donation will be reduced, restricted or annulled, as the case may be, with a view to an equal partition of the property.

Hence, plaintiffs and their co-heirs cannot be injured by the donations, and, therefore, the transaction does not amount to an act of abuse or waste necessary in law to warrant a judgment destituting the father of his usufruct. Art. 555 Civil Code provides “that the usufructuary may enjoy by himself or lease to another, or even sell or give away Ms right; but all the contracts or agreements which he may make in this respect, whatever duration he may have intended to give them, cease of right at the expiration of the usufruct.”

' This is the extent of the legal rights which the donees have acquired under the obnoxious donation, and the time of complaining on the part of plaintiffs on that score has not yet arrived.

The complaint of the sale of some cattle and movables by the father is answered by the record, which shows that the sales thus made by him were soon after cancelled, and that the things having thus, been returned, were found in his possession at the time of the institution of this suit.

Under an agreement between the parties, these things were sold by the sheriff who now has possession of the funds realized by the sale.

The complaint that the father lias spent, used or otherwise disposed of certain moneys which belonged to tlie community, and that, this is an abuse or waste within tlie meaning of the law, is absolutely groundless. Money cannot be used or enjoyed by being kept in possession; its use necessarily implies a spending of the same—and the usufructuary has the undoubted right to thus use it, under the obligation of returning the same at the expiration of the usufruct. C. C. Arts. 534, 549; Succession of Hayes, 33 Ann. 1143.

An inspection of the record fails to disclose any act of the father which could make him amenable to the penalty of destitution of his usufruct under the provisions of the law invoked against him by his own children.

These views obviate a discussion of the second point raised by defendant’s counsel.

Judgment affirmed.


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    No. 1123.
    Uriah Millsaps, President of Police Jury of Ouachita, vs. Mayor and Council of Monroe.

      A town counoil and mayor cannot lease from the parish a ferry and bind the corporation to pay the price they have bid for it unless the town-charter specifically authorizes its authorities to do that act. Municipal corporations cannot legally contract debts for imaginary necessities or real conveniences. They are not permitted to exercise power* not specially delegated to them in their charters unless such powers are incident to those expressly granted or flow from them by necessary implication. A debt contracted by a town illegally is not enforceable.
    ■Where a town has been exempted by the legislature from parochial taxation and instead has assumed the payment of a fixed portion of certain detailed expenses of the parish to be furnished the town by the parish officers at stated periods, the right of action of tlie latter against the former accrues upon the expiration of the delay granted by the Act.
    A PPEAL from the Fifth District Court, Parish of Ouachita. /~"\ liidhardson, J.

      F. G. Hudson, District Attorney, for Plaintiff and Appellee:
    Municipal corporations are subject to be sued upon their contracts and in tort. Dillon on Municipal Corporations, pp. 749, 750.
    They have a right of action to enforce contracts made within the scope of their authority.
    An agent contracting without authority binds himself. Hewitt vs. Rondebush, 24 Ann» 254; Richie vs. Boss, 15 Ann. 668; Cooley & Phillips vs. Eatebau ot als., 26 Ann. 515.

      XToristhe rulo changed where the agent acta for liis principal bona fide, believing that he has duo authority, Story on Agency, p. 264, ot seq.
    Ülio rulo exempting officers ot government from the principio of lawmaking agents who exceed their authority personally responsible, does not apply to officers of a municipal corporation capable of making contracts for itself and are liable to bo'sued thereon. 23 Pick. 120; 28 Ala. 507; 11 B. S. 272.

      T. Stillman, City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The police jury of Ouachita-parish sues the corporation of Monroe for one-fourth of certain expenses of the parish, and for the price of a ferry-lease adjudicated to the mayor of the town for 1882-5 inclusive.

The ferry connects Monroe with the opposite bank of the river. The bid for four years was twenty three hundred dollars—$575 per annum. Payment is resisted on the ground that the corporation of Monroe was and is without authority to lease a ferry and to incur any obligation therefor.

The powers of the corporation arc specifically enumerated in its charter. Act 102 of 1871. They are those usually contained in such charters and do not include the power to lease a ferry either expressly •or by implication, nor is that power incident to those expressly granted. It follows that the council cannot bind the town to the payment of a •debt it had no authority to contract, and those who deal with a municipal corporation must know at their peril whether it can legally contract or not. Dillon Munic. Cerp. 54 372, 381; Lisso vs. Red River, 29 Ann. 492. Courts have uniformly held such bodies within the orbits marked for them in their legislative charts and no imaginary necessities nor real conveniences are permitted to be supplied by the public purse. They fulfill the purposes of their creation when they exercise the powers conferred upon them and nothing beyond is permitted unless it comes within the limitations that jurisprudence has attached ■to those powers.

The judgment below was for the plaintiff on this lease and must be reversed.

The plaintiff prays a judgment against the mayor personally in the event we refuse it against the corporation. He assumed no personal •obligation—did not pretend to buy the lease for himself or to act in any other capacity than as representative of the town, nor did the plaintiff accept Ms bid and execute the lease to him personally and therefore cannot recover of Mm.

On the other branch of the case it appears that by the amended ■charter of the town, Sess. Acts 1873 No. 81, all property in Monroe and all persons and occupations therein were exempted from parochial taxation and instead assumed the payment ot all criminal expenses in ■cases originating in it. This proved unsatisfactory and in 1876 was changed so as to put on the town one-fourth of the parish expenses for “drawing and summoning jurors, per diem and mileage of jurors, for summoning witnesses before grand juries, for repairs on public buildings for parish, for books for parish officers, for registration and elee tion, and for salary of tire district attorney pro tern."

The Act then provides, No. 57 of 1876, sec 2. “That it shall be the duty of the President and Clerk of the Police Jury of Ouachita parish, semi-annually and within ten days after the first of January and July of each year, to make out and certify under oath a statement in detail of all expenses on account of the items stated in the foregoing section, and which have been settled and liquidated by the parish within the six months next immediately preceding the said statement, which said detailed statement shall by tiie said President and clerk be delivered to the Mayor of Monroe.”

“Sec. 3. That it shall be the duty of the Mayor and Council of Monroe, and they are hereby required to pay over to the Parish Treasurer for the Parish of Ouachita, in currency or certificate of indebtness of the parish, one-fourth in amount of the expenses liquidated and shown by the said statement required by this act; and for any delay after the thirty days shall have expired the Parish shall have the right to demand and recover interest on the sum shown to be due by the City of Monroe at the rate of eight per cent per annum, as well as tlio principal sum,” etc.

The president and clerk of the police jury made and certified under oath the statements required by this Act for the last half of 1882 and the whole of 1883 amounting to $1,101.81 and presented them to the town authorities in January and July for payment. Payment was not made nor was it refused. There was no money in the treasury, and that was the reason given for non-payment on the instant, but no item was disputed and no objection was made to the charges either for their objects or amounts. Payments had been made semi annually up to this tim.e. The parish waited until July 1884 and then brought this suit for the three semi-annual statements already mentioned and for $107.55, interest upon a statement for 1881 which had been paid in principal in March 1884.

Disposing of this last item at once the evidence shews that the payment was made and receipt in full given without any charge or mention of interest. None was demanded at the time the principal was. paid and it seems to be an afterthought 10 demand it now. It was improperly allowed.

•Varions objections to *ho items of the detailed statements aro made in this suit for the first time. It may be doubted whether the acceptance of the statements without objection on their presentation within the time fixed'by the Act did not preclude any subsequent objection. However this may be, we find they are untenable. For example, the court-house had burnt and a building had been rented for that purpose. Repairs of it had been made and the objection to that item was that it was not a public building of the. parish. It was a public building hac vice. So again, the item for attendance of the sheriff upon the courts. It is said his attendance may have been on a civil term and the petition bases the right of recovery upon the obligation to pay a certain proportion of the criminal expenses of the parish. The draughtsman of the petition misconceived the purport and terms of the statute. Several expenses are therein provided for that are in no sense criminal expenses, but the statement of tlie sums demanded item by item cures any defect in that allegation if it was of sufficient moment to prevent recovery without it. There was ho need to make any further demand than that made or implied by the delivery of the detailed statements at the time and in the mamier set forth in the Act.

The lower court gave judgment for the three semi-annual statements with interest upon each and we shall affirm it.

It is therefore ordered and decreed that the judgment below is amended in this wise, that the part of it in which judgment is given for tlie amount of the three statements of parochial expenses with interest is affirmed and the residue is reversed and judgment is now rendered in favor of the defendant on the other items, the plaintiff and appellee paying the costs of appeal.

Fenner, J, not being present at tlie argument takes no part.


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    No. 1122.
    The State of Louisiana vs. Robert Janvier.
    In absence of proof of some overt act or hostile demonstration by deceased at time of killing, evidence of prior threats and dangerous character is irrelevant and inadmissible. Although some testimony may have been given tending to show a hostile demonstration, yet, if it is improbable, inconsistent with all the proven facts and circumstances of the caso and considered by tho judge as totally unworthy of credence, be is not bound to accept it as establishing the necessary foundation for the introduction of ovidence of prior threats and character. He is tho judge of whether such foundation has heon laid and is necessarily vested with the discretion to ignore testimony which his reason refuses to'boliove. State vs. TTord, recently decided.
    A PPEAL from the Twenty-second District Court Parish of St, f\ James. Duffel, J.

      M. J. Cunningham, Attorney General, and J. L. Gaudet, District Attorney for the State, Appellee :
    'Testimony to establish that threats were made, is inadmissible, where it is not proved that they were communicated to the accused. State vs. Cluvallier, 36 Ann. 81; 33 Ann. 1344.
    Evidence of the vicious or dangerous character ot tho deceased, is not admissible unless the proof previously administered, has laid the legal foundation for tho admission thereof. State vs. Claude, et al. 35 Ann. 71; 35 Ann. 770; State vs. Jackson, 33 Ann. 1087; Stato vs. Bird well, 36 Ann. 859.

      Jiobt. G. Dugué for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The appeal comes upon throe hills of exceptions level-led at rulings of the judge excluding evidence of threats and of tho •dangerous character of the deceased. ,

The judge annexed a statement as part of each of the bills, by which we must bo guided in determining Uie points involved. He says: ■“no overt act, no act of aggression, no hostile demonstration was proven to have boon made by deceased against accused at the time of the killing.”

From his careful statement of tho facts and testimony in the case, we are satisfied his conclusion, as above stated, was well founded.

The mere fact that two witnesses had given testimony of an indefinite hostile demonstration, improbable in itself, inconsistent with all the proven facts and circumstances of tho case, and which the judge, •considered entirely unworthy of belief, did not constitute such proof as bouud the judge to admit tire testimony. lie was the proper judge of whether the essential foundation for the admission of such testimony had been laid and, as we have lately said in the case of Stato vs. Ford, “'that authority necessarily includes the discretion to ignore and not consider testimony which his roason refuses to believe.”

It is elementary that, in absence of proof of some overt act or hostile demonstration, evidence of prior threats and of dangerous character of deceased, is irrelevant and inadmissible. State vs. Henderson, 33 Ann. 1087; State vs. Labuzan, recently decided.

Judgment affirmed.


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    No. 1131.
    W. B. Thompson & Co. vs. S. M. Lowery.
    A discrepancy between notes sued on and notea desciibod in an act of mortgage, consisting-merely in the name of the month "July” instead of "June,” is insufficient to defeat a-claim for the enforcement of payment with mortgage on the property described in the act and in the petition, particularly where there is no pretence that the mortgageor has issued notes identical with those described in the act and which aro outstanding, and where there is no proof in support of such objection. »
    In order to be able to determine whether an act offered is or not that mentioned in the petition, the same should first he offered and received. The objection to its reception goes-to the effect and not to the admissibility.
    Attorney’s fees stipulated in sun-h act as to he paid by the mortgageor in case of suit on the notes, and fixed at five per cent, payment thereof being secured like the notes by mortgage on the property hypothecated, are recoverable and must ho allowed.
    APPEAL from the Seventh District Court Parish of Franklin. Bilis, Judge ad hoe.

      A. W. Moore for Plaintiffs and Appellants.

      Gorham (& Berry for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is' a suit to enforce payment of two notesaud of attorney’s fees represented as secured by special mortgage on real estate described in the petition.

The defense is a general denial. On the trial, the plaintiffs offered to introduce in evidence a copy of the act, by which it is claimed that payment was secured by mortgage.

The defendant objected to tbe introduction on the ground that the act of which copy was offered was not that declared in the petition, in as much as the notes sued on are dated July 2, 1881, while those described in the act are stated to be dated June 2 of the same year.

The lower court properly overruled the objection and received the act.

Tile objection went to the effect and not to the admissibility of the act. The court could uot determine whether the act offered was that alluded to in ihe petition, un-less it was first offered and received.

Tiie court, however, on the merits considered that the notes sued on had not been shown to be identically those described in the act of mortgage and secured thereby, aud gave judgment for the notes with interest and costs, rejecting the claim for attorney’s fees and the special mortgage said to have been consented to secure the notes and fees.

The notes sued on are each for $3819 09, both dated Winsboro, July 2, 1881, payable on the first day of April 1882, drawn by S. M. Lowery to his own order, payable at the office of W. B. Thompson & Co., New Orleans, La., for value received, with interest at the rate of eight per cent interest per annum after maturity until paid.

They are paraphed ne varietur on the 2d of July, 1881, by H. T, Eade, clerk and ex officio parish recoi’der and notary public.

The act of mortgage executed before that officer, and copy of which1 was introduced, declares that the mortgage is consented in favor of W. B. Thompson & Co., of New Orleans, La. to secure payment of three notes which were all delivered to the mortgagees, and two of which are described precisely as are those sued on, with the only difference that instead of being declared as dated July 2, 1881, they are stated as dated June 2, 1881.

There is no allegation or pretence that the defendant has issued other notes answering those described in the act of mortgage and which are outstanding.

The burden was on him to plead and prove.

The mis-description, as to the name of the month “June” instead of “July”, is clearly a clerical error, of which, in the absence of plea or proof, the defendant cannot be permitted to take advantage to the injury of plaintiffs.

The notes are sufficiently identified. 16 L. 163; 5 Ann. 524; 4 Ann. 303; 19 Ann. 141.

Neither is there any charge that the plaintiffs are not the owners of the notes or have no right to sue on them as is sought to be done.

By the act in question, it is specially stipulated that, in ease of nonpayment of the notes and of suit to enforce payment, the defendant shall pay the fees of the attorney employed to collect them, the same being iixecl at five per cent on the amount sued for. 26 Ann. 500. And that the mortgage is consented to secure the payment of the notes in cajntal and interest, as well as the attorney’s fees thus fixed.

The district court erred in rejecting the prayer for a recognition of the mortgage and in denying the allowance of the fees claimed.

Counsel for defendant argue that it is incumbent on a plaintiff to establish his claim legally. No proposition of law is bétter established as a rule of practice.

There is, however, another rule of law which the defense has overlooked, and it is that, in a case like the present one, where the proof is sufficient to establish the identity of the notes sued on with those described in the act of mortgage, although there may exist a slight discrepancy, the burden is upon the defendant to show that ho has issued outstanding notes, such as are described in the act.

We think the plaintiffs have fully established their claim and that the defendant has not, by plea and proof, relieved himself from the liability which he has saddled upon himself.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed, as far as it condemns the defendant to pay to the plaintiffs the notes sued on in capital and interest, and that in other respects it be reversed.

It is now ordered and adjudged that the plaintiffs recover in addition from the defendant five per cent for attorney’s fees on the amount sued for and costs of suit, the whole, with special mortgage securing both the notes in capital and interest and the fees and costs on the property described in the act of mortgage and in the petition, and that defendant and appellee pay costs in both courts.


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    No. 1133.
    Mrs. Sarah P. Turner vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    It ia negligence in a railroad company to liave a station platform higher than the steps of passenger coaches* and to require in consequence, that passengers should enter from the platform into a baggage oar, and thence to proceed to the coach or coaches assigned to passengers. The company is liable in damages for injuries received by passengers while they are seeking to hoard a train in that manner at the request of the conductor.
    PPEAL from the Fifth District Court, Parish of Ouachita. Micliardson, J.

      JBoatner & Boatner for Plaintiff and Appellee.

      A. B. Pittman aud Ludeling <& Stillman for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff claims damages in the sum of seven thousand five hundred dollars, for injuries received by her through the alleged carelessness and negligence of the defendant company and of its em ployees, when she was boarding one of its passenger trains at one of its stations.

The defense is a general denial, coupled with the special averment that as the wife of one of the company’s employees, travelling free of ■ charge, plaintiff cannot recover damages for injuries received under isucli circumstances.

The defendant appeals from a verdict and judgment against it in the .■sum of one thousand dollars, and plaintiff prays for an increase of the allowance.

The record shows that plaintiff was not a freo passenger, and that .she had paid her fare; hence that element of the defense is virtually abandoned on appeal.

Concerning the manner in which the accident occurred, the testimony •is considerably conflicting, but the preponderance of the evidence •establishes to our entire satisfaction the following state of facts:

When the train, which was a mixed one, freight and passenger, was •stopped at the platform of the station, the passenger coaches did not •reach the platform which iu height was nearly even with the floor of ■•the ordinary railroad coaches; whereupon the conductor requested splaintiff to enter in the baggage car, which stood against the platform, and from there to walk to the rear end of the train to the ladies’ ear, which was the second from the baggage coach.

After assisting her from tho platform, and she had begun to walk to •the rear, the conductor gave the usual signal to start tho train. At the •moment that she was stepping from that car to the next, unassisted by anyone, the train moved with a jerk, causing her a mis-step, in conse■quenee of-which she lost her balance and fell to the ground between ••the platforms of the adjoiuiug oars, and received serious injuries, breaking two ribs of her body,-from which injuries she was confined • to a hod of suffering for a considerable length of time, and from the ••effects of which she had not yet recovered when the case was tried -below.

From that statement we conceive that it would be difficult to present ;a case of greater negligeuce and of more wanton indifference, to the .-safety of its passengers on the part of any common carrier.

No principle finds more solemn sanction iu jurisprudence and even an the sense of humanity than that which imposes on railway companies “the legal obligation to furnish safe and proper means of ingress .and egress to and from trains, platforms, station approaches, etc.” Courts have imposed that obligation ou railroad companies for the protection oven of persons who go to the depots and stations only ou business.

But it is easy to conceive that the duty is still more imperativo and sacred in the case of passengers who desire to enter on or leave a train after paying therefor, and thus entering into a contract which makes ••• the obligation to provide for their safety, absolutely binding and perfect..

Hence we have no hesitation in holding that a railroad company which affords no greater facilities to passengers in hoarding their trains than the alternative to step down to the ground from a platform, and thence to climb up the car steps into the proper passenger coach,, or to step into a baggage car and thence to walls to the rear, crossing over car platforms while the train is in motion, is guilty of gross negligence, and is responsible in damages for injuries received by its passengers in their attempt to perform this unjustly imposed feat.

In the case of Peniston vs. Railroad Company, 34 Ann. 778, wo had-occasion to make an extended review of jurisprudence in its exposition of the principle which underlies the present case, and we need not. re- ■ peat here the satisfactory result of our researches. Suffice it to sq,y that the degree of negligence which we have to deprecate in the caso - at bar, is much greater than that iuvolved in the case referred to.

We note the forcible argument made by plaintiff’s counsel for an in- - crease of the damages allowed her by the lower court. The increase-asked is predicated on prospective damages growing out of the helpless condition ol' their client, who is now a widow, unable to labor for • her livelihood; hut the record shows that her husband, who was tully able to support her, has died since the occurrence, and hence her helpless condition is-duo to the loss of her husband, and not to the fault. of the defendant.

Courts must be very cautious in dealing with elements of prospective damages, which should never he allowed but in clear cases, supported by tangible proof, and in a measure independent of expert testimony..

We think that the verdict of the jury has done full justice in the. premises, and we do not feel warranted to disturb it.

Judgment affirmed.


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    No. 1128.
    Melinda Van Amburg vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Recovery of damages for the death of a freeman, caused by an accident occurring before the passage of the Act of July L0, 1884, cannot bo bud in the face of the uniform jurisprudence forbidding it.
    A railway company is responsible in damages for an accident caused by an imperfect and» unsafo bridge to an engineer of the company, although tho road wa‘s in course of construction and not yet open for traffic or travel and although the bridges while the road' is constructing are not required to be as porfect as wben finished for traffic and travel. They must bo sufficient not to needlessly endanger the lives or limbs of the employees' while the road is in its unfinished state.
    The defence that a railway company is not responsible for accidents occurring in the absence of its governing officers cannot be listened to. Such doctrine would be tantamount to relieving the company of all responsibility. The company is present in the person of the conductor of the train, or such employee as is operating it.
    The doctrine of fellow-service releasing a railway company from liability for injaries, because the servant injured is fellow with the servant through whose fault the injury was suffered, is modified, and it is now established that a conductor of a train represents the company for the time and is the master of the engineer who is obliged to obey his orders.
    It is error to charge the jury that although damages for the death of a person cansed by a railroad before July 10,1884 are not recoverable, yet they are recoverable for the loss of support by the deceased, because that is the direct consequence of the death.
    A PPEAL from the Fifth District Court, Parish of Ouachita. xA Richardson, J.

      Boatner & Boatner for Plaintiff and Appellee.

      A. B. Pittman and Budding & Stillman for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sues for the recovery of damages sustained by the death of her son caused by the breaking of a bridge on the defendant railway at Alligator bayou in Bossier parish. The damages are laid at five thousand dollars for agony and suffering bodily and mental endured by the victim of .the disaster, and a like sum for-the loss of his support and the deprivation of his society, care, and affection.

The defence is a general denial and a plea of contributory negligence. The verdict was for one half the sum claimed, viz five thousand dollars.

The second item of damage cannot be considered. Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than, the Roman Digest, reproduced therein, and echoed by thé courts of all countries from then till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains and refusing them for a long-life sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort and even the necessary stays of life. Legislation has at last come to the relief off future sufferers. The Act of 1884 applies the remedy that the public conscience has long demanded, but it has missed application to this casé only by a few days. That Act was apjiroved July 10th and took effect in Bossier on the 30th. Tlie accident and death occurred on the '25th of that month.

It was ingeniously argued to us that this statute merely provided a remedy for a previously-existing obligation—that in morals and eon-science he who caused the death of another should make reparation to the survivors as in law he who caused damage by a fault wTas legally obliged to repair it—and therefore that the remedy provided by the -statute could be and ought to be applied to injuries inflicted before its passage. ' This would open the door to a multitude of suitors and therefore courts would bo cautions in making suck interpretation, but iu truth tho argument is not sound, for it is based on the assumption that this is a remedial statute and on the principle that such statutes are construed liberally, but our late statute is not remedial in the sense of supplying a remedy. It creates an obligation by expressly declaring the existence of a liability where there was none before and opens the way to a recovery for its violation.

The son who was killed, James Van Amburg, was a locomotive-engineer on the defendant railway and was running a construction train over the bridge across Alligator bayou when the bridge broke, the engine was hurled a depth of ninety feet into tho bayou, and the engineer was killed. The road was not open for traffic or travel. The train was composed of two flat-cars in front of the engine and one box-car in rear. Tlie conductor and some of the labourers were in the front car. The bridge was notin the condition that was intended to be permanent, that is it was not finished in the manner it was intended to he for permanent use, but it was completed as far as it was intended to bo for construction purposes. The foundation and skeleton of the bridge was complete. One cap was on each of the piles and the stringers were laid on those caps. When construction was completed another cap would ■have been placed on and thicker stringers and tiiese would bring tho bridge to a level with the road-bed. The stringers were made of round logs hewed to a flat surface, were of gum, ash, pine and some oak and cypress, were twelve inches thick aud fifteen feet long, and had been cut from the forest about six months before tho accident. They wore green when laid down.

In its then condition the bridge was lower than the road-bed. There was consequently an incline at each end, the road-bed sloping down to the bridge which therefore formed a sort of concavity.

The party was late getting out to work on that day and the train was moving fast, too fast say the conductor and another for safety. Van Amburg was prone to run fast. That was characteristic of him. He was singularly exemplary in his habits—did not drink spirituous liquors, was active, intelligent, knew his business well and attended to it. punctually and methodically.

This driving the engine is the contributory negligence pleaded. The conductor testifies that six miles an hour was fast enough to run over ■ this bridge—ten miles the maximum of speed, and the chief engineer of the company says “the condition prevailing there at that time could, not have permitted a higher rate of speed than ejglit miles an hour.” ' The concurrent testimony is that the train was running at not less than fifteen miles an hour.

The bridge is thus shewn to have been unsafe and its unsafety was. known to the chief engineer who had authority to have it made safe and to the conductor who had control of that train and could have made the locomotive-engineer slack to a snail’s pace if lie liad been then as alive to the danger as he was on the trial. His neglect to per-, emptorily order the crossing this bridge at this time and at all times at ■ not greater speed than ten miles, which he says was the maximum permissible, is little short of criminal. On this particular occasion it was more than ever his duty to do it. He knew Van Amburg was prone to-drive fast, and that he was energetically devoted to the interests of his. employers. On that day the gang of labourers was late and though it was no fault of Van Amburg’s, bis concern for the work would inevitably induce him to make up for lost time and not time he liad lost himself. The conductor only a few minutes before had flagged him down, according to his expression, and lie had crossed Red Chute bridge. safely. He might have saved the engineer’s life if he had appreciated, the situation as vividly as lie did while on the witness-stand.

The insecurity of the bridge *and the failure of the conductor to command and compel the engineer to always cross it at a safe speed!, were the combined causes of the aceideut. The company is responsible for both - for the imperfect bridge, for although a bridge for construction-purposes is not required to be as solid and complete as for.traffic when heavy trains must pass over it, it is necessary that it. should be solid and complete enough to make it safe. No company-has any right to trifle with the lives of its employees, nor to put them-i in greater peril than is incident to the nature of their employment. It, cannot for the sake of economy or other cause fail to make even its. temporary structures sufficiently safe for the contingencies of its spe- • eial work. No inflexible rule can be laid down on such matters. A. scaffolding around a building two storeys high upon which one workman is to stand need not be as solid and compactly put together as one around a tower of several hundred feet in height upon which a half-dozen woikmen must stand. Each guild or branch of industry knows its own special needs. A railroad company knows, or it is its duty to know at its peril, what is a safe bridge, and there is no sort of doubt they did know this bridge was not safe.

The company is responsible for the other cause, for the conductor was the company on that day and {or that occasion. He had exclusive •command of that train—was to the engineer his master for the time and did not so much represent the company as personate it. He was the company in bodily form with authority to command and power to enforce. The pretention that no responsibility can attach to the company except when it is present through its chief officers would practically relieve it from all responsibility. With its president in New York and its directors equally remote no possibility of fastening upon it any liability whatever would exist. No other doctrine than that it is present in the person of those of its employees who for the time operate it would-give the smallest modicum of protection to the public.

The defence that no recovery can be had because, even admitting that the fault lies with the conductor, his act was that of a fellow-servant, is no longer tenable to the extent formerly admitted. The case •of Chicago, Milwaukee, & St. Paul R. Co. v. Ross, 112 U. S. Rep. 377 has made an inroad on jurisprudence in the right direction, and we have applied the new principle there established at the present term. The reasons therefor have been or will bo elaborated in our opinion in ‘Towns v. the same defendant and it would be superfluous to repeat them.

Among the numerous instructions excepted to by the defendant is the following;—that while the plaintiff could not recover damages for the death of her son, the jury may assess them in her favour- for loss of his society and services and for support to such extent as it appears .he would have given her had he not been killed.

That charge is error and misled tho jury. The loss of his society and of his aid in her support is the direct consequence of his death, and damages given therefor are damages for his death. Under the law as it existed when he was killed such damages are not recoverable. Tho verdict lamps the damages and we cannot know what portion was given for the recoverable cause and what for tho unrecoverable, and we must therefore assess them ourselves.

The death, was immediate if not instantaneous. The unfortunate •'man was precipitated with the engine ninety feet. His forehead was cut and if he survived the blow upon his head, death by drowning followed quickly. No arithmetical calculation can compute the intensity of that agony that overwhelms the victim of such an accident when he confronts death, but a sum has tobe adopted and its apportionment to tho duration and intensity of the suffering is not determinable by fixed ■.rules. What was endured is unknown and unknowable, but it is safe •to conclude that the jury gave the larger part of their verdict for the -loss of support and the laceration of the mother’s' heart by the horrible death of her young and only son. Those elements of damage must be ■eliminated and we shall reduce the judgment.

It is therefore ordered and decreed that the judgment of the lower 'court is amended by reducing the sum therein mentioned to one thou- - sand dollars, and as thus amended it is affirmed, the plaintiff and appellee paying costs of appeal.


text:
    No. 1138.
    S. Marx vs. L. D. Allen, Jr. and G. A. Singer.
    A verdict of a jury on questions of fact as to which the testimony is directly conflicting will nob be disturbed unless manifestly insupportable.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      R. G. Gobh and R, Richardson for Plaintiff and Appellant.

      T. Stillman and Boatner <& Boatner for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The action is one for $10,000 damages alleged to have been caused to plaintiff by the act of defendants in sending an unauthorized telegram in tho name of plaintiff to the officers of the steamer Hanna, then on her way to New- Orleans and having on board fourteen bales of cotton shipped by plaintiff under bill of lading to Gumbel Bros. & Meyer, of New Orleans, said telegram directing the boat to "ignore the bill of lading and to deliver the cotton to Lehman, Abraham .■& Co., in obedience to which the officers of tho boat actually diverted the cotton as directed.

The charge is a serious one, being tantamount to forgery, and if su»‘■tained, established a wanton and outrageous interference with plain- - tiff’s business, which would certainly entitle him to damages.

Plaintiff’s counsel pithily says: “There is but one question to bodetermined: Was Singer authorized by Marx to send the telegram ?■ If he was, of course plaintiff is entitled to no damages. If unauthorized, plaintiff is clearly entitled to a judgment for some amount.”

The case was submitted to a jury at the prayer of plaintiff.

The jury returned a verdict for defendants. It was approved by the-district judge, who overruled a motion for a new trial.

The evidence is diametrically conflicting, defendant Singer positively swearing that Marx distinctly authorized and directed him to send the dispatch in his name, while Marx and his son as positively swear to-the contrary,

There are circumstances tending to confirm the truth of Singer’s testimony, besides the presumption of innocence, which is powerful against the probability of a man filling the responsible position of' cashier and partner in the leading banking firm of the place, committing such an act.

The jury evidently believed Singer, and we may suppose the judge-did not consider their action unreasonable.

We can discover nothing to justify us overturning their conclusion..

Judgment affirmed.


author: Bermudez,'C. J.

text:
    No. 1124.
    John Chaffe, Adm’r, vs. F. P. Stubbs et als.
    Although the burden may be on defendant who avers a compromise, a case will be remanded' for further ovidenco where, the ends of justice requiring it, the proof is seemingly incomplete, and plaintiff has offered to disprove authority claimed to have been by him* delegated.
    APPEAL from the Fifth District Court, Parish of Ouachita. . Riehardson, J.

      M. L. Liddell for Plaintiff and Appellant:
    The burden of proof is on the defendant who avers a settlement in full. 22 Ann. 106.
    Under our law replications to an answer are unnecessary, as the law raises for the plaintiff' every defense >f law and fact, and ho is to be considered as denying any now matter setnp by the defendant. 13 Ann. 412; 5 Ann. 294.
    So the defendant who pleads a discharge or settlement with an agent must: prove his authorization. 29 Ann. 363.
    It is no part of the professional duties of an attorney to compromise litigations. Such authority must be express and special. G. G. 2966 ; 16 Ann. 51; 18 Arm. 54.
    The denial of an attorney’s authority to compromise a pending litigation does not have to< be under oath. Such oath is only required when he acts within the scope of duties imposed on him by his profession in judicial proceedings. 10 M, 639 5, 9.-M». 95?.10 Ann.. 350, 669.

      Franklin Garrett and Stubbs <& Bussell for Defendants and Appellants.
    1. “All persons have the capacity to contract, except those whose incapacity is specially doelarod by law. Tliese are persons of insane mind, those who are interdicted, minors, and married women.” O. C., 1782.
    2. “A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a law-suit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be reduced into writing.’ C. G., 3071; 23 Ann. 696.
    3. All persons not excepted by 0. C. 1782, may undertake the contract of compromise; but tutors of minors and curators of absentees and of interdicts must be specially authorized by the judge. C. C. 3072.
    4. “Transactions have, between the interested parties, a force equal to the authority of the thing adjudged. They cannot be attacked on account of any error in law or any lesion (otherwise in partitions, C. C. 1398; 13 Ann. 338). But an error in calculation may always be corrected.” C. C. 3078; 3 Ann. 95; Rabun v-i. Pierson, 23 Ann. 697-8.
    5. Transactions cannot be changed but may be rescinded when there exists error in the person or matter in dispute, fraud or violence, null title, unless the compromise was on the nullity, false documents, and a suit terminated by definitive judgment without knowledge of parties. C. C. 3079, 3080, 3031, 30S2; 13 Ann. 62; 16 Ann. 344.
    6. Boatner acted as attorney and agent of plaintiff in the transaction. As attorney, he cannot plead ignorance of the legal effects of signing the transaction; “no one can allege ignorance of the law.” G. C. 7. What cannot be alleged cannot be proved. As agent lie cannot question his own authority. Dunn vs. Brannér, 13 Ann. 455.
    7. Tlie act of compromise was admitted in evidence without objection. Nobody has attacked the authority of either Boatner representing plaintiff, or Stubbs representing defendants, to make and to sign the transaction. There was, then, no error in the persons. The matter in dispute was the liability of the defendants under the judgment and bond sued on which is fully set forth in the act of compromise. There is no pretense of fraud, or of any legal requirement necessacy to rescind a transaction. To change the transaction would be “to substitute another in its place. The agreement was entire; it has long since been executed by both parties; no rocision is claimed on the ground of error, fraud, or breach of condition. We think the caséis with the de fendants.” Robertson vs. Wilcox. 3 Ann. 96.
    8. The plaintiff lias received a large sum of money; “he cannot be permitted to enjoy the fruits of the compromise, and at the same time to repudiate the corresponding obligagation imposed'on him by it.” Stewart vs. Haas, 23 Ann. 784. If a transaction be rescinded, “the effect of tho annulment is to restore things to the condition they were in previous to the compromise.” 26 Ann. 434. Is the restoration possible in this easel
   Tlie opinion of tlie Court was delivered by

Bermudez,'C. J.

This is an action by a succession representative against the sureties on the official bond of Ms removed predecessor, who died thoroughly insolvent.

The suit was originally for some $45,101 40, being the amount of the judgment obtained against the succession of the deceased administrator, but, owing to credits subsequently acknowledged, tlie claim is reduced to $10,609 36.

Tlie sureties do not contest their liability to a certain extent. They rely on a compromise alleged to have been entered into, since suit, under which they claim that the only judgment which can be rendered against seven of them is one for $10,500 m solido; judgment, however, to go against the succession of one of them, T. Purcell, for $1500, independently.

From a judgment of non suit both parties have appealed.

On the trial the defendants introduced in evidence the act of compromise asserted by them. In rebuttal the plaintiff offered to prove that the person representing himself therein as agent had not been clothed with the power of entering into suoh a. contract and had exceeded what authority had been conferred on him. The evidence having been excluded, bills were reserved to the rulings of the district judge.

However much it may be claimed as a legal proposition, that the acts of the agent bind the principal, this can only be truly said when the former acts within the scope of his mandate.

Where the power is not exhibited at the time of the contract with the agent and does not form part of it, it is cle.ar that the acts of the latter cannot conclude his constituent, who at all times enjoys the privilege of showing by competent evidence, either that nis instructions were not carried out or have been transgressed.

Whoever deals with an agent is put on his guard by the very fact and does so at his risk. It is his right and duty to inquire into and ascertain Ihe nature and extent of the powers of the agent and to determine whether the act or contract about to be consummated comes within the province of the agency and will or not bind the principal.

If the power exhibited is sufficient, the principal will not be permitted to gainsay the acts of his representative, but if it is not, he is warranted in repudiating them.

In the present instance, the written instrument termed the “compromise” does not show on its face that Mr. C. J. Boatner, who therein represented the plaintiff, acted in his professional capacity. So that the question of presumptive authority to compromise does not arise and cannot be determined. He there appears to have acted in his in dividual capacity only and as an ordinary agent usually does.

The law requires that the power to compromise be conferred by specially delegated authority. R. C. C. 2966.

Strictly, the defendants should have themselves established the authority of the agent; but as the plaintiff does not deny an agency and proposes to prove that the powers which he delegated have not been followed, but, on the contrary, were departed from, it is nothing but just to permit him to do so.

We think the rejected evidence should have been allowed.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered that the case be remanded to the lower court with directions to receive the excluded evidence, and to be further proceeded with as the law provides,—the costs of appeal to be paid by the defendants and appellants, those of the lower court to abide the final determination of the suit.

Fenner, J. takes no part, not having heard argument.

On Rehearing.

Considering that the proceedings herein, including and subsequent to the filing of the amended petition, are evidently based on the written compromise, which is either valid as a whole or not at all, we will not hold the defendants subject to harm from their neglect to prove authority, but adhere to our original decree herein, which we think is conducive to justice and remains undisturbed.