text:
    No. 13,404.
    Succession of Mrs. C. A. Lanphier.
    Syllabus.

      1. where a mother and tutrix in anticipation of her second marriage has made through their und^rtulor a settlement, or dation cn pavement with her children, in the form of a donation, the parties have the right, on finding the form of the act an obstacle in the way of the sale of the property, to set aside the donation, sell the property and apply the price to the payment of the children. The children of the second marriage have no right under these circumstances to force a collation from those of the first by reason of this donation. (Howe vs. Scudder).
    2. The plaintiffs in a partition suit between heirs have the right when the defendants set up, in the District Court, a claim against the succession to urge their defense from such claim by pleadings, and, also, to advance claims of their own. The usual practice is to present such claims before the notary to whom the matters are referred for a partition, and for him to send the parties back to the court for settlement in the event of a contest. The action of the court in permitting matters to be determined before reference is not an error, particularly when, at the request of parties, the case has been continued for time to examine claims.
    3. Where a wife has separate property from which are derived revenues during marriage sufficient to pay a separate debt which she owes, payment of such debt during marriage will not be presumed to have been made out of community funds, by reason of the simple fact that the husband has occasionally received the rents from leases of her property not made by himself, particularly where the husband has gone into bankruptcy and has placed no claim against his wife upon his schedule nor referred to it.
    4. A statement by a husband on his schedule that he has furniture to the extent of one hundred and twenty-five dollars, which he claims is exempt, does not estop bis beirs from claiming that furniture shown to have been in the family residence during bis marriage, belonged to the community between himself and bis wife. The question in such case is one of the ownership, not value.
    PPEAL from the Civil District- Court, Parish of Orleans — King, J.

      Hugh O. Cage and Samuel L. Gilmore for George B. Penrose et als., Plaintiffs, Appellees.

      Benjamin Bice Forman for Harry P. Lanphier and Edward S. Lanphiex, Defendants, Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

It is admitted by all parties that the dwelling ou Camp street sought to be partitioned herein, belonged to the separate estate of Camille Adele Bright, who, at the time of her death, was the widow of -3 ames S. Lanphier, of whom all the parties to the action are heirs, and that the extent of the interests of the different parties therein is correctly stated in plaintiffs’ petition for a partition. It is denied, however, by Henry P. Lanphier and Edward S. Lanphier, that the furniture therein belongs to the separate estate. It is averred on the sontrary, that it was purchased and paid for during the community between her and her second husband, James S. Lanphier, of whom, the said Ilenry P. and Edward S. Lanphier are heirs, and that it should be partitioned on that basis. It is additionally claimed- by these last named parties that the heirs of Mrs. Camille A. Bright, issue of her first marriage with Clement B. Penrose, should be made to collate the sum of $3888.88, by reason of a donation made to her sons Clement B. Penrose and George B. Penrose on the 22nd of November, 1869, of seven-eighths of her lots of ground and the improvements thereon, ou Gasquet street, in New Orleans; a further sum of eight hundred and fifty dollars by reason of a donation to them on the 15th September, 1885, of that amount to assist them in building a house — on property which they had purchased on Seventh street — and that the separate estate of Mrs. Lanphier is indebted to the second community, that is the one between herself and her husband, James S. Lanphier, in the sum of three thousand six hundred and forty-seven dollars and fifty-five cents, for that amount paid by J ames S. Lanphier out of the funds of that community in paying the note with interest which his wife had executed before her second marriage in representation of the credit portion of the price of the property on Camp street which she had purchased during' her first widowhood.

Upon the advancing of these claims, George B. Penrose and the minor children of his deceased brother, Clement B. Penrose, set up contingently to meet the same, a claim of three thousand three hundred and fifty dollars for occupying for five years and seven months by J ames S. Lanphier and his wife of their house on Seventh street, and a further claim of two thousand and nine hundred and fifty-two dollars for moneys advanced at different times by them and used in supporting the family.

George B. Penrose also advanced two claims, the first, a claim of a thousand and forty-seven dollars paid by him to Harry P. Lanphier, being an amount which the latter claimed that he had advanced to his mother and had expended in paying debts due by her; and the second— a claim that he, himself (George B. Penrose) had paid various debts due by the succession to ari amount of four hundred and fifty-two dollars.

The claims of H. P. and Edward S. Lanphier were rejected and those advanced by George B. Benrose were recognized and ordered to be enforced by the partition. The property on Camp street and the furniture therein were ordered to be sold and a partition made between the parties. Harry P. and Edward S. Lanphier appealed.

No amendment of the judgment was asked by the appellees.

The claims set up by the Penroses were presented in a paper styled a replication, which was offered to be filed when the case was called for trial. Objection was made to the filing of this paper on the ground that it was presented too late — for the further reason that the Penroses were estopped from setting up any claims as heirs of their father over and beyond the property set forth in the inventory made in the matter of his succession, which their mother under oath (by which they, as her heirs, were bound) declared that to be the only property left by and belonging to her husband’s succession; and for the further reason that the claims advanced were barred by the prescription of four and five years which they pleaded.

The court overruled the objections. In reference to the first objection the court stated that there was no law to prevent the plaintiffs in the original suits from filing an answer to an answer filed by defendants in a partition suit, and setting up their defense in a demand for a collation in an answer. That the practice was for objections to be made before the notary — and the notary to note them and refer the proceedings to the court for settlement, under the Article of the Code; that while overruling' the objection he would grant the defendants a continuance if they asked one, and the continuance being claimed the ease was continued.

In reference to the other objections the court stated that if the suit were one in which George B. Penrose and the heirs of Clement B. Pen-rose were claiming that the succession of their mother was indebted to them, the pleas of prescription and estoppel would probably be well taken, but that it understood the claim and testimony in support of them were urged as a defense to that made by the Messrs. Lanphier that the separate estate of Mrs. Lanphier was indebted to the community and for collation of the Gasquet street property.

It ruled that the testimony could be received to support the claims and the claims themselves used as a defense.

The suit being a partition suit and the various claims of the heirs inter se having been advanced before the court prior to reference to a notary instead of having been postponed to be set up after such a reference, and then sent back to the court for a settlement as is usually the case, we see no ground of complaint to the court’s action in view of the continuance granted to the defendants as their request. C. C.

The only claims for which present judgment,is actually asked by either of the plaintiffs, are those set up by George B. Penrose, for the payment by him of debts due by his mother. They were not barred by prescriptions pleaded. Harry P. Lanphier, one of the heirs, being one of the creditors so paid, is not in position to deny the correctness of his own claims. Geo. B. Penrose, another of the heirs having made the payment, is entitled to be reimbursed. (C. C. 1359.)

The first demand of the defendants to which we direct our atten tion is that of an indebtedness alleged to be due by the separate estate of Mrs. Lanphier to the community between Tames S. Lanphier and herself, as arising from the payment by Lanphier, out of the -funds of that community, of the note of three thousand dollars which Mrs. Lanphier (then Mrs. Penrose) had executed prior to her second marriage in representation of the credit portion of the price of the Camp street property.

There is no evidence in the record showing whom that note was paid by. The demand of the Lanphiers on this subject rests exclusively upon the fact that the note having been paid during Live second marriage it must be presumed to have been been paid by the second husband out of funds of the second community.

In this particular case, the wife had separate property and separate funds of her own, amply sufficient to pay this note, which it is not shown were administered by the second husband. It is true that he collected some of these monies and paid them out, but he received them as monies due to his wife and so disbursed them. If Lanphier had rented out his wife’s property in his own name and received the rents arising under these contracts he would have been “administering” the property of his wife, but if he himself or any one else leased out the property in the name of his wife and the husband merely received the rents — they would not fall into the community. Not only did Mrs. Lanphier have property and funds of her own, but the property and funds of her sons, Clement B. Penrose and George B. Penrose, were also in her hands. Defendants say that this latter property and funds were in the mother’s hands as tutrix and it cannot be presumed or assumed that she used them illegally and improperly to pay her own debt. This argument loses its force under the circumstances in which it is presented and in the attitude which the parties stand to each other. The plaintiffs are not finding fault with any action of their mother or charging her with wrong; they have fully and completely settled with her. In support of their denial of the existence of any claim by James S. Lanphier for having paid the note of his wife, the plaintiffs sought to show by way of estoppel that he went individually into bankruptcy in 1878 and did not place his wife on his schedule as ’owing him or the second community any money, but that on the schedule of the partnership of Nelson Lanphier & Company, of which he was a partner, and which went simultaneously with himself into bankruptcy, the wife was placed as a creditor for $165.00.

It may be incidentally mentioned in connection with this matter of bankruptcy that Lanphier lived a number of years after his discharge in bankruptcy and died leaving no property whatever. His succession was never opened and the only assets which are claimed to have belonged to his succession is this claim particular against his wife’s succession, and a claim for the ownership of the undivided half of the furniture in the Camp street property, which claim will be hereafter referred to.

The court allowed the bankruptcy proceeding's to be introduced in evidence, but it overruled the plea of estoppel based thereon. It was of the opinion that Lanphier was not called upon to place this claim on his schedule; that admitting its existence, it was a debt due to the community existing between himself and his wife which could not bo enforced or have any legal effect, except by a suit for a separation of property between husband and wife, or by death and settlement of the rights as between the conunnnity and spouses. That it could not, during the existence of the community, arise and be enforced; that it survived the bankruptcy and could he enforced by the heirs of the deceased after the termination of the community. The view we take of the situation, outside of this question, makes its discussion unneces- . sary.

We pass now to the claim for collation advanced by the Lanphiers. It is undoubtedly true that Mrs. Penrose did, during her first widowhood, make a donation to her two sons, Clement B. Penrose and George B. Penrose, then minors, of seven-eighths of the Gasquet street properties, but it is also true that donation was annulled and set aside and rescinded between the parties on the 25th day of May, 1885. This the parties had the right to do. Howe vs. Scudder, 45 Ann. 1103.

These properties had been bought by Clement B. Penrose (the first husband of Mrs. Lanphier), his brother, Joseph B. Penrose, and their sister, Anna Penrose (afterwards Mrs. J. B. Wilkinson), conjointly, each holding an undivided third, prior to the marriage of the first named party. After his marriage the first named acquired the other two-third interests. The latter have been treated throughout as a community acquisition, and the contract by which they were acquired as a contract of sale. Mrs. Wilkinson testifies that the consideration of the transfer of these two interests to her brother, Clement, was the transfer by him to her brother, Joseph and herself, of certain slaves which Clement owned. The act of conveyance is not in the record. It was testified to on the trial that the revenues of this entire property were received and used for her own account by Mrs. Lanphier from the date of her first husband’s death, in 1859, to the time of the annullment of the donation in 1885. It was further testified to that the act styled an act of donation was not in reality an act of donation, hut a transfer by the mother to her sons in settlement and liquidation of their rights.

The clear reason of the annulment and setting aside of the act as a donation was its acting as a difficulty in the way of a proposed sale of the property to Bernard Bories by reason of its form, Mrs. Penrose having' remarried and having, in 1885, children by her second marriage, which took place in November, 1869, and there being the possibility of an action later for the reduction of the donation as having been made by the donor in excess of the disposable portion.

Just prior to the annulment of the act of donation and prior to the act of sale of the imoperty to Bories, to-wit: on the 15th day of May, 1885, Clement B. Penrose and George B. Penrose gave an acquittance in full to their mother for all indebtedness due to them, and directing the recorder of mortgages of the parish of Orleans to erase from his records the inscriptions therein which evidenced the existence of a general mortgage on her property by reason of her tutorship.

In the act of acquittance it was recited that the mother had rendered them, ten days prior to that date, a full account, accompanied by vouchers.

No such account appears in the record and it is questionable whether it was, in fact, ever exacted or given. This act of acquittance, given at that date and under the circumstances it was made, corroborates the contention that the act styled the “donation” was not, in point of fact, such, but a settlement between the parties and a elation en paiemenl which the minors, on reaching majority, accepted and ratified.

The acquittance, like the act of annulment, was also given merely to facilitate the sale of the property and to free it from the general mortgage with which it would be encumbered by registry of the tutorship— by annulment of the donation. There was, unquestionably, a large indebtedness duo to Clement B. Penrose and George B. Penrose by their mother at the time of the act of donation, and at the time of the act of acquittance, an indebtedness larger than the value of seven-eighths of the property; when the act of donation was set aside this indebtedness revived with the evident intention, at the time of the acquittance on the part of the parties, to be at once again extinguished through receipt, by the sons, of the price of the sale of the property to Bories. The sons did, in fact, receive the price of the whole property arising from the sale; for no part was it received, in our opinion, as a donation from their mother. The property, in its entirety, was sold by Mrs. Lanphier, Clement B. Penrose and George B. Penrose, to Bernard Bories on the 26th of May, 1885, for three thousand nine hundred and twenty dollars.

We have next to consider the claim of the defendants that the furniture in the Gamp street property belongs to the community between Mrs. Lanphier and her second husband, James S. Lanphier, and not to her sexiarate estate.

The claim was rejected on the ground that James S. Lanphier had, on the verified schedule of his individual bankruptcy, made a return that he was possessed of “household goods, wearing apparel, furniture, etc., valued at $125.00, claimed to be exempt.”

The court was of opinion that this statement estoxiped his heirs from claiming furniture in excess of that amount. If demand of the defendants was against the plaintiffs for a sum of money due them in some way by reason of the furniture, it may be that the valuation placed upon it by Lanxihier would go far to fix the value as not being at utmost $125.00, hut see no element of estoxipel in favor of the plaintiffs by the statement made. The claim of the defendants is that certain furniture now existing in kind in the Camp street house was bought by James S. Lanphier, during his marriage with plaintiffs’ mother, and paid for by him out of community funds. That it is property belonging to the second community; that it should be so recognized to be and that in making a general settlement between the parties its proceeds should he dealt with on that basis.

We think the court erred in its conclusions on this point, and that it should have passed upon this claim on its merits, and not disposed of and rejected it on the ground of estoppel. We do not think the record in condition such as to enable us to decide it. It is true that the evidence discloses that the furniture which is now in the dwelling on Gamp street was there during the marriage between Lanphier and his wife, and that there are a number of receipted bills for furniture bought during1 the marriage, in the name of James S. Lanphier, but there are also bills for furniture purchased just before the marriage of the parties; and evidence that Mrs. Penrose, independently of his, owned furniture of her own.

We think the identity of the different articles of furniture, with that purchased during the marriage, should be shown. We do not find the evidence on the subject of this furniture as being furniture bought during the second marriage, sufficiently clear to reach a fixed conclusion about it, and we think the judgment of the District Court, rejecting this particular claim, should he reversed, and that the matter should he further investigated below.

It is therefore ordered, adjudged and decreed that the action and judgment of the District Court, in so far as it rejected the claim made by the defendants, II. P. and Edward S. Lanphier, that, the furniture in the house on Oamp street belonged to the community between James S. Lanphier and his wife, Camille A. Bright, and not to the separate estate of the latter, be and the same is hereby annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the judgment appealed from, except in so far as herein reversed, is affirmed. It is further ordered, adjudged and decreed that the cause be remanded to the lower court for further proceedings, according to law, with directions to receive evidence to determine whether the contents of the property on Oamp street, herein referred to, belonged to the separate estate of Mrs. James S. Lanphier or to the community between herself and her husband, James S. Lanphier, and to pass upon and decide that issue upon evidence. It is further ordered that costs of the appeal be borne by the appellees. Costs of the lower court to await the final judgment in the lower court.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,299.
    St. Anna's Asylum vs. City of New Orleans et al.
    Syllabus.
    1. The City of New Orleans has the legal right, when in possession for public uses of a portion of a batture directly upon the river, in front of which the river was forming a shoaling bed, to fill up this shoaling space up to deep water with earth, to protect the same outwardly by a bulkhead, to advance the landing line to the bulkhead and use the space in the rear of the bulkhead as a quay or place of deposit for unloaded cargoes. This advancing of the landing line does not carry with it necessarily a right on the part of the owner of the batture just in the rear of this new work, to take absolute possession of the same as full owner.
    2. Where the city holding for public use batture property upon the Missis- . sippi river which has in front a shoaling bank, determines for the convenience of commerce to advance the landing line to reach deep water, it has the legal right to enter into an agreement with private individuals to do the work necessary for this purpose, and to receive as an equivalent for such work a right of reasonable temporary use of such extension, and the batture just behind. The naked owner of the batture cannot disregard the agreement and dispossess the parties holding possession under it, on tlie ground that such occupancy of the ground is a private occupancy.
    3. If the agreement should be illegally or improperly exclusive of public rights of others, the courts would be open for their redress.
    APPEAL from the Civil District Court, Parish of Orleans— Bightor, J.

      Fenner, Henderson & Fenner for Plaintiff, Appellant.

      'Bamuel L. Gilmore, City Attorney, and Walter B. Bommerville, Assistant City Attorney, for the City of New Orleans, .Defendant, Appellee.

      Bice & Montgomery for Wood, Schneidau & Co., Defendants, Appellees.

      William 8. Benedict for F. B. Nunn, Defendant, Appellee.

      Horace F. Upton and John B. Upton for W. G-. Coyle & Co., Defendants, Appellees.
   Statement of ti-ie Case.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs in this suit were originally the St. Anna’s Asylum, Mrs. Dora Stark and Mrs. Fannie B. Eandolph. During the progress of the litigation the demand as to the two latter was discontinued.

The allegations of the petition as filed were:

That the St. Anna’s Asylum is the owner of the square of ground situated in this city, and comprised within the following streets, to-wit: Eace, Eobin, S. Peters, or Levee street, and S. Front streets, together with all the batture or alluvion formed in front thereof between S. Front street and the Mississippi river, with the exception of one undivided half of that portion of said batture or alluvion which is formed in front of the one-half of said property fronting on S. Front street, and nearest to Eace street, which said undivided half of said batture or alluvion belongs to your petitioners, Mrs. Fannie B. Eandolph and Mrs. Dora B. Stark, as equal joint and undivided owners, all of which will be fully proved on the trial of this cause.

That there has been formed, and now exists, a large portion of batture or alluvion in front of said property/ far more than is necessary for any public use.

That many years ago the city laid out and established a street known as Water street, between S. Front street and the Mississippi river, and thereupon abandoned to your petitioners the use of said batture lying between S. Front street and Water streets, of which portion your petitioners have since held full possession and use. That since the said establishment of Water street there has been formed between the said street and the Mississippi river large additional alluvion or batture, being about 180 feet on the Robin street line, and about 225 feet on the Race street line, by a width of 319 feet and 8 inches.

That some years ago, with the approval of the city, a plank road was built by the wharf lessees of the city, and running across said batture parallel to the Mississippi river, and at a distance from said river of about 36 feet, which said plank road has ever since been, and is now, used as a public thoroughfare.

That the portion of said batture or alluvion lying between said plank road and Water street, measuring about 151 feet on the Robin street line, and about 205 feet on the Race street line, by a width of 319 feet and 8 inches, is not necessary for public use, and is not and has not been for many years used for any public purpose.

That said property is and has been occupied for many years by certain coal merchants and dealers of the city of New Orleans, to-wit: F. B. Nunn, the commercial firm of Wood, Schneidau & Co., and the commercial firm of W. G. Coyle & Co.

That the aforesaid coal dealers occupy said property under a license from the city, without any consent or approval of your petitioners; that they have fenced in the whole of said portion of batture lying between the said plank road and Water street, and have erected thereon offices, stables, and other structures for their private use, and use the whole of said property exclusively for their own private business and purposes without any participation of the public in such use.

That the said property thus used and occupied is of great value and has a rental value of at least $3000.00 per annum.

That the said property is not necessary for public use, and is not now, and for many years has not been, applied to any public use,-and that under the law your petitioners are entitled to the said property, and to a decree of this Honorable Court ordering the city of New Orleans to permit them to enjoy the use and ownership of said property, and also ordering- the said F. B. Nunn, Wood, Schneidau & Co., and W. G. Coyle & Co., to remove from said property,. and further condemning them to pay petitioners rent for said property at the rate of $3000.00 per annum from the date of judicial demand herein.

In view of the premises, plaintiffs prayed for citation upon the city of New Orleans, F. B, Nunn, Wood, Schneidau & Co., and W. G. Coyle & Co., and for judgment decreeing plaintiffs to be entitled to the property herein described, lying between Water street and the plank road, and between Race and Robin streets, and compelling the said city to permit petitioners to enjoy the use and ownership thereof, and further, condemning the said F. B. Nunn, Wood, Schneidau & Co., and W. G. Coyle & Co., to remove from and vacate said property, and to pay to petitioners rent at the rate of $3000.00 per annum from judicial demand until they shall remove from and vacate said property.

Exception of vagueness, misjoinder of plaintiffs and defendants.

The defendants excepted to plaintiffs’ petition on the following-grounds :

1. That the allegations of plaintiffs’ petition are too vag-ue, general and indefinite, to enable exceptors to answer same, and that they cannot with safety do so until plaintiffs’ cause of action, if any exists, which is not admitted, but denied, is set forth with more certainty.

2. That said petition discloses no cause of action against exceptors.

Wherefore defendants, specially reserving the right to answer in ease these exceptions be overruled, pray that they be maintained and plaintiffs’ suit be dismissed with costs and for all general and - equitable relief.

The city of Now Orleans pleaded the general issue.

It admitted that the other defendants, all of them receivers of and dealers in coal, were occupying- the river front of the city between Race and Robin streets, under revocable licenses from the city. That such occupation is necessary for commercial purposes as a public place for receiving coal. That in the exercise of its corporate powers, to lessen the burden of taxation, and increase the facilities of trade in the article of fuel, which is of prime necessity, it has established and permitted a landing- for coal between Race and Robin streets, where boats and barges are moored, and coal is unloaded.

Defendant specially denied that plaintiff had title of ownership, or that it had possession of any land or property between the prolongation of Race and Robin streets, and between Front street and the Mississippi river. Defendant denied that said described property ever was, or is now, embraced within “Faubourg Saulet,” as alleged by plaintiff, which faubourg appears to have been laid out in 1810. Defendant alleged the properly mentioned in plaintiff’s petition to have been formed, and, to be now, in front of and part of “Faubourg Lacourse.”

That, in 1807, P. It. Delogny, who had previously acquired “Faubourg Lacourse” from J. F. E. Livaudais, divided said faubourg into lots according to a plan by Dartholomy Lafon, surveyor of the territory, and advertised said lots for sale according to a prospectus wherein it was stipulated that said Delogny obligated himself “'to leave open, for the common use of the purchasers, the space which is to be found between the river and the first line of lots on the said plan, without power to sell the same for their own profit or for that of any one.” That said lots were sold and they were now the property of private individuals; and that by such sale Delogny divested himself absolutely and irrevocably of all titles to the ground between New Levee street and the Mississippi river in “Faubourg Lacourse,” as well as that which has been formed by accretion in front of said faubourg since 1807. That plaintiff did not set up title from J. F. E. Livaudais, or P. R. Delogny, or their vendees, and that it had no tille to the property claimed in its petition.

Defendant further showed that in the chain of title of the triangle marked “33” in front of square 32, having ■ — • feet front on Race street, by — feet front on S. Front street, and — feet front on S. Water street, and facing lots 7, 8, 9, 10, 11 and 12 in square 32; that plaintiff alleged title to the one undivided half of said piece of ground in others than itself, and it is not therefore entitled to the one undivided half of the batture fronting' the same. That plaintiff had no tille whatever to the other undivided half of the batture in front of the same triangle marked “33,” which undivided half of triangle of ground was sough, to be sold under executory proceedings, without accretions, after a large amount of dry land had been formed between the said plot of ground and the Mississippi river, and defendant further showed that S. Water street had been laid out through and over said plot of ground, and that there was little or no portion of said ground left; and that the same had not been riparian property since, and for some time before, plaintiff’s pretended acquisition of title to the said undivided one-half

Nunn and the firm of W. G. Coyle & Co., after pleading the general issue, 'denied that plaintiffs were entitled to any relief or remedy against any of the defendants; that they had any right of ownership in and to the property for which they prayed to be declared owner, and respondent specially denied that the same was not necessary for the public uses and now specially averred:

That they occupied the property on the river bank, between the streets leading at right angles therefrom, as described of a small portion under grant from the city of New Orleans, for due consideration, as a public landing, necessary for the use of the commerce of the port of New Orleans, and which has been so known as such public landing for a period of more than thirty years last past, and is still necessary for the use of the city of New Orleans, and the city of New Orleans, as such grantor, is bound in law to warrant this respondent in the peaceable possession thereof.

That the plaintiff herein, by itself, and subsequently by and through Mrs. Randolph and others, co-plaintiffs, on two separate occasions during the past two years, applied to the city of New Orleans to have said property declared to he no longer necessary for public uses; that after full investigation on each different occasion, by its committees and sub-committees, the said City Council, in its discretion, being fully advised in the premises and of the necessities of the port therefor, refused to declare said property no longer necessary for public uses; that the discretion of the said city in its wise exercise cannot he controlled herein by judicial action.

That said land was well kept by this respondent, was filled by respondent, and paved by respondent with the approaches thereto, and was used for the purpose of unloading coal boats to supply the city and its inhabitants in part with coal; that no part or portion of the improvements thereto were made, had or furnished by the plaintiffs herein, or by any one on its behalf, and respondent was not liable to said plaintiff in any sum as for rental value of said property.

In view of the premises, respondent prayed notice to its co-defendant, the city of New Orleans in warranty, that there be judgment herein as against plaintiff; that its action he dismissed, and there he judgment in favor of respondent with costs; if otherwise, that there he like judgment as against the city of New Orleans in favor of this defendant in warranty, and for all general relief.

Wood, Schneidau & Co. pleaded the general issue.

The St. Anna’s Asylum subsequently pleaded the prescription of ten, twenty and thirty years, alleging that it and its authors had been in uninterrupted and in peaceable possession, in good faith and under just titles, for more than thirty years of the property or estate to which the batture herein sued for was attached and belonged, and that by reason of such possession, under such titles, it pleaded, in addition to its other titles, the prescription of ten, twenty and thirty years.

The District Court overruled the plea of prescription filed by the St. Anna’s Asylum and rendered judgment in favor of defendant and against plaintiff, 'the St. Anna’s Asylum, dismissing the suit.

The court stated that “it considered especially that the land in dispute formed part of Faubourg Lacourse and not a part of Faubourg Saulet.”

The St. Anna’s Asylum appealed.

Opinion.

This suit is brought by St. Anna’s Asylum against the city of New Orleans, and certain parties occupying different portions of the property referred to in the pleadings, under ordinances of the city, as will be hereafter mentioned. It is based upon the provisions of Section 318 of the Revised Statutes which declare that “whenever the riparian owner of any property, in the incorporated towns or cities in this State, D entitled to the right of accretion, and batture has been formed in front of his land, more than is necessary for public use which the corporation withholds from him, he shall have the right to institute suit against the corporation for so much of the batture as may not be necessary for public use, and if it be determined by the court that any portion of it be not necessary for public use, it shall decree that the owner is entitled to the property, and shall compel the corporation to permit him to enjoy the use and ownership of such portion of it.”

The city does not claim ownership of the property, but denies that of the plaintiff, and, therefore, its right, under the statute, to bring the suit. It does not set out what the names of the parties are in whom it may believe such ownership to be vested.

There are no parties before the court asserting rights of ownership adverse to the plaintiff; the issue is before us only by reason of ihe contention of the city that a party in possession of property can only be dispossessed by one having rights himself. The city presents, under its pleadings, very complicated and difficult questions, both of law and of fact, which the conclusions which we have reached render it unnecessary to decide. We need not examine how far the city of New Orleans, occupying the position it does, has the right to invoke in its own-behalf the rights of third parties, and to what extent the plaintiff, as against it, would be called upon to exhibit a title good and perfect against the whole world.

The character of the action, as well as the pleadings of the plaintiff, place the property before us, so far as it is itself concerned, as baiture property of which the city has had possession up to the institution of the present proceedings.

The property is in the actual occupancy of F. B. Nunn, Wood, Schneidau & Co., and W. G. Coyle & Co., under Ordinances No. 7427 A. S., and No. 5345 C. S.

The first of these ordinances was of date of November, 1881, and reads as follows:

“That portion of the river front, between Race and Robin streets, commencing at a point twenty feet from the river side of Water streer (making said street eighty feet in width instead of sixty feet as at present laid out), and extending to the water’s edge, be and the same is hereby set apart as a coal landing for the sole use of W. G. Coyle & Co., C. A. Miltenberger & Co., William Lee, B. D. Wood & Bros., and W. J. Wilmot & Co., and other coal dealers, they paying their pro rata of expense for the period of ten years from the grant of this privilege; provided, that for and in consideration thereof the parties hereinbefore mentioned do bind themselves to remove all obstructions now on said street to the lines hereinbefore mentioned, and further obligate themselves to fill up to a grade, to be designated by the city surveyor, the said property herein designated at their expense, and to return the same to the city of New Orleans thus improved, without charge, at the expiration of ten years.
“Should the accretions continue to that extent that the demands of commerce, in the judgment of the council, necessitate the opening of any street through said property without rendering said property useless for the purposes for which it is intended, whatever space may be required for such street shall be left open for public use without charge to the city.
“It is understood that after the expiration of one year they shall remove the bulkhead on Pilie street and be allowed to extend their limits twenty feet further in the river.
“Article 3207. That the privileges granted under Ordinance 7427, A. S., setting aside certain portions of the river front as coal landings to the persons therein designated, be and the same is hereby assigned and transferred to Messrs; W. G. Coyle & Co., James Sweeney, Wood, Schneidau & Co., and Fred. B. Nunn, from the passage of this ordinance until the expiration of the wharf lease now before the Council for adjudication, upon'the terms and conditions of Ordinance '7427, A. S.; provided, that said grantees shall at once put in thorough repair, and at all times during the continuance of this grant, keep in good order and condition satisfactory to the Commissioner of Public Works and City Engineer, the roadway in the rear of this grant and the approaches thereto, viz: Race and Robin streets, from Tchoupitoulas street to and including said roadway.
“The wharf lease referred to in Ordinance No. 5345, whose termination is made by that ordinance to also terminate the privileges granted therein, will end in two years -and a half or thereabout.”

The evidence shows that the batture in question is in front of a portion of the .city, on the Mississippi river, where for many years back there has been what is called a “forming bank,” that is, a bank gradually extending outward, by reason of accretions — deposits thereto from the river. The process of extension is gradual, and it is shown that a portion of the deposit accumulated during the high water is washed out or disappears as the river recedes. It will be readily seen how this shoaling or shelving in front of the original bank would, in the port of a city, become a matter of inconvenience. In low water, the landing of cargoes would have to be made year by year further and further away from the regular “landing line,” and while in high water, the water would cover the land in front, and yet might not be sufficiently deep to admit of boats reaching the landing.

In view of this condition of things, and to meet it, it has been usual for the city, either to assist the gradual operation of natural causes by filling up with earth, by artificial means, the space in front- to the distance needed, and to the height needed, and then moving forward the “landing line,” and protecting it in front with a revetment or a bulkhead, or by building wooden wharves, extending forward over the shoal places. There can be no question that the city of New Orleans was legally authorized, in the interest of the public and of commerce, to either do this work itself or to have it done for it by others at public expense.

Article 863 of the Civil Code declares that “the corporations of cities, towns, and other places, may construct on the public places, in the beds of rivers, and on their banks, all buildings and other works which may be necessary for public utility, for the mooring of vessels, and the discharge of their cargoes, within the limits of their respective limits.”

The evidence shows that the privileges conferred upon the parties named in the ordinances mentioned, were not gratuities, but were granted for a consideration which we must presume was not in excess of the value of services rendered, of the precise character we have alluded to. They were not privileges of a permanent character, but were granted for a reasonably short time at which they were to end.

In Fleitas vs. City of New Orleans, 51 Ann. 25, we said: “The legality of making use of private individuals or corporations as public agencies in the 'accomplishment of public purposes through special contracts, has been frequently recognized by the courts of the different States, notably, in the ease in the 140th IT. S. Reports, 662, in respect to this very contract,” (“the sugar shed contract”).

In making that statement, we were merely reiterating what had already been said by this court in Brown vs. The City of New Orleans, 14 Ann. 843, 844; Kline vs. The Parish of Ascension, 33 Ann. 566, and Heirs of Leonard vs. Baton Rouge, 39 Ann. 285.

If the work done by the defendants in this case, other than the city of New Orleans, had been done for and in consideration of a sum of money, and the property, the right to whose possession is in controversy herein, had been taken possession of by the city and thrown open as a place for the general unloading of coal boats, and for the deposit of coal as a public landing, we scarcely think the present action would have been brought. The right of the city to the continued occupancy of the property would, we think, have been recognized. The peculiar feature in the situation, which we think has given rise to the litigation, is the fact that the property has been fenced in from the front and the different private parties and partnerships, defendants herein, have been using it, and are still using it for their exclusive use as a place for the deposit and sale of their coal.

We do not think thut fact controls the rights of parties under the circumstances of this case. If it be true, in fact, that the privileges in question are special privileges illegally granted to these particular parties; if it be true that they have illegally fenced in the property, and that they should have removed in the past, and should be made to remove in the future from the property, within a reasonable time after unloading the coal which they deposit upon it, those are issues which the plaintiff is not warranted, if the property be really not otherwise subject to private possession, in raising, simply in virtue of a right of ownership.

Parties whose rights are specially and directly affected by these particular facts are the proper ones to urge them.

The plaintiff has not contributed a dollar towards the present improved condition of the property. It has made no offer to remunerate the private parties, now occupying the premises, for their outlays, but it seeks to avail itself of their expenditures without compensation. It has allowed the defendant to expend money since 1891, without objection, and two years in advance of the period which they and the city have determined as that which would repay them for. their services, it seeks to oust -them from the property which they occupy under an agreement in the nature of a contract, if not a contract.

If true it was that it was entitled to have had a preference over the defendant of taking possession of the property on the same terms and conditions under which the defendants were allowed to take it, it is sufficient to say that it made no offer to do so or to obtain or to exercise such right.

It makes no offer now, but seeks to obtain from the court a decree recognizing its right of full ownership and full x>ossession. If the decree which it seeks should be granted to it, it would enter into full possession of the property, thoroughly untrammelled as to the uses which it would put it to. It could, at its own will, build residences, put up manufactories upon it, or employ it for any other purpose which it might think fit, and do away with it entirely as a coal landing. It may well be that at the termination of the privileges granted to the defendant, plaintiff may be able to effect some arrangement itself with the city.

The plaintiff takes the position, as we understand, that the moment ' a levee upon a piece of x^roperty is moved forward to the water line of the river, the land behind the levee becomes "private property, and should pass at once, ipso facto, into private possession. It cites 8 Rob. 218, in suxjport of that proposition; the proposition is too broadly stated. It may be correct, under some circumstances and conditions, and as between some x^arties, but it is not a rule of general application, regardless of the status of the property, by whom controlled, and how, and for what purpose it had come to be thrown behind the levee. It is questionable whether the term “levee” is strictly or properly applicable to a bulkhead thrown forward, not for protection from inundation, but to establish a new “landing line” on the river front of a city. The property in question is in the limits of a municipal corporation, on the river front, and is substantially a “landing,” a “wharf,” a quay, a place in aid of and in furtherance of the right granted by Article 455 of the Civil Code, which declares that the use of the banks of navigable rivers, or streams, is public; that, accordingly, any one has a right to freely bring his vessels to land thereto, unload his vessels and deposit his goods.'

The word “quay” is defined in the Century Dictionary: “as a landing place; a place where vessels are loaded and unloaded; a wharf— usually constructed of stone, but sometimes of wood, iron, etc., along a line of coast, or a river bank, or around a harbor or dock,” and adds, from Blackstone, Com. I. VII., the sentence: “To ascertain the limits of all ports and to assign proper wharves and quays in each port for the exclusive landing and loading of merchandise.”

The plaintiff complains that too much space has been given by the city to the other defendants. The parties to the agreement thought otherwise, and we cannot, in this suit, say that what were given and received on each side were not equivalents.

It has been testified to that no one occupies the river front in front of Water street, in right of private ownership, other than the Gas Company.

That company is not before the court, and we have no knowledge of the circumstances under which it acquired possession of the tract T holds. It was further testified to that there has been no uniform distance established along the river front from the front line of private occupancy to the river’s edge. That the distance varies at different-points, by reason of different conditions.

This case resembles very closely, in its facts, the case of the Heirs of Leonard vs. City of Baton Rouge, 39 Ann. 275.

We are of the opinion that in the present condition of things, and as matters stand, the plaintiff is not entitled to the judgment it asks, but that the court erred in rendering a final judgment against it. The judgment, in our opinion, should have been one of non-suit.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected as of non-suit and without prejudice, and its suit is dismissed. The costs of appeal to be paid by the appellees; that of the District Court by the plaintiff.

Rehearing refused.


author: Nioholls, C. J.

text:
    No. 13,123.
    Thomas J. Seibert vs. McManus & Long.
    Syllabus.
    1. Experiments made in the absence of parties interested in the results thereof, are, as evidence, in the nature of hearsay, and if received, the facts and condition under which they were made should be shown to have been identical with those of the case before the court.
    2\ The fact that a furnace erected on property in New Orleans should have been put up without prior submission to the city authorities as to tho safety of the plan of construction, and that the plan of construction may not have been in accordance with rules adopted by the council concerning such kind of work, does not do away with the necessity of proving that this construction was the cause of a fire on the property by which that of his neighbor was destroyed.
    APPEAL from the Civil District Court, Parish of Orleans— Monroe, J.

      Lazarus & Luce for Plaintiff, Appellant.

      Bernard McQloshey for Defendants, Appellees.
   The opinion of the court was delivered by Nioholls, O. J.

Statement of the Case.

Nioholls, C. J.

Plaintiff’s demand is based upon allegations that the firm of McManus & Long, composed of Hugh McManus and Nicholas Long, both of your said city and State, and the individual mémbers of said firm, are legally and justly, and in solido, indebted to petitioner in the sum of six thousand seven hundred dollars, for this, t'6-wit:

That on and before August 23, 1895, petitioner owned three lots in the square bounded by Carondelet Walk, St. Peter, Rocheblave and Dorgenois streets, in this city; that there was constructed and erected on said lots, and owned by petitioner, a dwelling house, cooper shop, work shop, warehouse, and other outbuildings; that the said defendant firm owned a lot immediately adjoining that of petitioner, and which was formerly part of the same; that the said firm owned and operated on their said lot a cooper shop or factory; that on or about the night of August 23, 1895, in the early part of the night, a fixe originated in the cooper shop of said defendants, destroying the same; that the flames and cinders from said fire communicated to the dwelling house and cooper shop of petitioner; that by reason of said fire his cooper shop was entirely destroyed, with all the materials, tools, and implements therein, and that the dwelling house of petitioner was almost entirely destroyed, it being so badly injured as to become an almost total wreck.

Petitioner avers that said fire originated and was caused by the gross fault and negligence of said defendants and persons in their employ; that there was a vice or defect in the construction of the furnace and burner of defendants, and which was largely the cause of said fire; that shavings were burned in the burner every day and were left burning there after the shop was closed at night, burning until late in the night; that no night watchman, nor any one else, remained on the premises at night; that, as aforesaid, the fire was largely caused by the vice or defect in the construction of said burner and furnace; that petitioner believes that the brick work of said burner was built around the stud-dings on which the roof of the house rested for support; that the stud-dings caught fire from the burner; and that it was due to this special fault of construction that the said fire originated.

The petition sets forth the elements of damage in detail.

The prayer of the petition is for judgment in solido against the partnership of McManus & Long, and the individual members thereof.

Defendants arisweréd, pleading the general issue.

The District Court rendered judgment in favor of the defendants, and plaintiff appealed.

Opinion.

The plaintiff claims that he has shown that there was negligence in the construction of a ceftáin furnace, chimney and fireplace, which the defendant, Long, erected at the gable end of a building on his property which he was altering to convert into a cooper shop.

The building was of wooden frame, surrounded upon the outside with corrugated iron instead of weather boarding, and ceiled within with planking.

In making the change the wooden upright posts at the gable ends, and the corrugated iron thereto attached, were cut off at a certain distance from the bottom, the chimney was run up on the.outside of the building, the brick walls of the sides of the intended furnace were projected into the building sufficiently far to enable the end of the cut-off posts to rest upon bricks placed across the side walls, forming, as it were, a brick mantel piece, as the inner front of the furnace.

The wooden posts were not removed, but permitted to remain above as they had been before, the space between them being filled up with brick, running back until they reached the corrugated iron behind. The posts were two inches wide by four in depth. The ceiling just above the front or inner end of the furnace must have been temporarily removed,, but afterwards replaced. The front wall of the chimney, that next to the building, seems to have been nine inches deep; the depth of the row or rows of bricks between the ends of the wooden posts and the top of the furnace on the inside of the building was not positively established. It is charged that the wooden posts should have been entirely removed and not permitted to remain; that there was too short a distance for safety between the brick ends of the posts in the rear to which the corrugated iron was attached and the interior of the chimney, and too short a distance between the bottom ends of the posts and the top of the inner front of the furnace.

That the fire used in cooperage establishments, produced by burning ends of hickory poles and cypress shavings, is very hot, and would almost certainly lead up first to the carbonization of and ultimately to the setting fire to the posts. That this, in fact, happened and from the resulting fire plaintiff’s property was itself destroyed. That the cooperage partnership of McManus & Long were using the building as a cooper shop at the time of the fire and were liable to the plaintiff in solido for the consequences of the same.

It is not charged that the fire within the furnace was other or greater than it was usual to have for the purposes of the kind of business. Plaintiff sent to New York for a pyrometer with which he made an experiment at his own furnace (he being himself a cooper and his furnace resembling, though somewhat different from, that of Long) in order to see at what degree of heat, wood, without being in direct contact with fire, would be caused to ignite, and he offered to introduce, and was permitted to introduce, the results of that experiment over defendants’ objection.

Plaintiff charges that not only was the distance between the posts and the top of the furnace, and that between the back of the posts and the interior of the chimney, too little, but that the defendant, Long, in violation of the ordinance of the city, had failed to submit, as he should have done, his proposed method of construction to the proper city authorities, and that the construction, as made, was in fact in respect to the points referred to in direct violation of the city ordinances.

There can be no question as to the fact that plaintiff’s property was destroyed by a fire which originated on defendants’ premises. No one saw the fire until it had gained some headway and, therefore, the exact place where it originated and its real cause were not directly established. When first the blaze was seen, it was near where the upper ends of the upright posts in the gable end of the building, over the furnace, connected with the wooden rafters of the building, and the wooden roof.

Plaintiff’s position is that having shown that the blaze was first seen where the upright wooden posts reached the rafter and connected with the roof; having shown that the presence of the wooden posts gave occasion for a conflagration; that their presence was in violation of the city ordinances; that the fires in a cooper shop were of an intensity such as was likely, in case of an accumulation of heat in the bricks, to set fire to wooden posts in coming in contact with the same; the District Court should have given judgment in its favor in the absence of proof or the suggestion of the existence of any particular fact to which the fire could be traced.

There is no doubt that plaintiff’s counsel have made a very strong presentation of his case, and had the cause, whether tried by a jury or passed upon by the district judge, resulted in a judgment in his favor, we would not have felt justified in reversing it, but the case comes before us under a judgment of the District Court, adverse to the plaintiff, and we would not be warranted in setting it aside, unless we were able to declare, and should declare, that the court erred in its conclusions.

We have reached the conclusion that the case is too close under the evidence to enable us "to do this. There are enough possible causes for the fire other than those suggested by the plaintiff and enough doubt as to where the fire actually originated to cause us to refrain from changing the judgment.

Plaintiff has not shown with sufficient certainty the fact that the fire as kept in the furnace was of an intensity such as to have led up as a consequence to the fire. The experiments were made in the absence of the defendants.

Evidence of that character is of the nature of hearsay evidence and it has been often rejected on that ground; if admissible at all it should have been shown affirmatively to have been made under the precise condition of things which it had been also shown defendants occupied at the time of the fire.

The furnaces in this case were not alike, and the pyrometer was inserted in plaintiff’s furnace after a fire had been made therein and had been kept up steadily for a number of hours, with direct reference to the experiment which was to be made subsequently.

The ordinances of the city referred to do not pretend to make the fact of the building of a fire in a furnace constructed otherwise than as authorized by the council, give rise to legal liability by reason of the fact itself, nor did they attempt to authorize a conclusion or presumption juris ei de jure from the building of such a fire, that any fire occurring on the premises had been occasioned by the use of such a furnace.

Assuming that the council had the authority to enact ordinances carrying with them such results, it has not exercised it.

As matters stand plaintiff had to establish the causal (by evidence more certain than has been adduced here) relations between the improperly constructed furnace and the fire which destroyed his property.

It should have been shown that the presence of the wooden posts over the furnace and in front of the chimney wall was the proximate cause of the fire. The furnace did not take up the whole width of the gable end of the building — there were other posts extending upward to the rafters and the roof, and downward to the floor upon which there were always more or less shavings; in addition to this the sides of the house inside were entirely ceiled with wooden planks and it was not shown how long the fire had been burning when first discovered.

For the reasons assigned the judgment of the District Court is hereby affirmed.

Eehearing refused.

Monroe, J., recused, having decided the case whilst sitting as judge of the District Court.


author: Blanchard, J.

text:
    No. 13,661.
    State of Louisiana vs. Robert and William Austin.
    Syllabus.
    1. In a murder trial, as part of its testimony to establish the killing T>y the accused, it is competent for the State to ask the sheriff, on the stand as a witness, as to the place of arrest — the purpose being to prove flight.
    2. It is proper for an accused person, who takes the witness stand in his own behalf, to state the facts transpiring just prior to and at the time he killed the deceased, and the further fact that because of these circumstances he entertained then and there the belief that he was (or in this instance his brother was) about to be killed by the deceased, and acted under that belief when he, himself, shot the deceased.
    3. But for the defense to go further and enter upon the enquiry as to the nature and character of this belief is not allowable because matter of opinion and trenching upon the domain of the jury.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.

      Walter Guión, Attorney General, Joseph Moore, District Attorney, ([Lewis Guión, of counsel) for the Plaintiff, Appellee.

      Robert L. Belden for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Indicted for murder and found guilty without capital punishment, defendants appeal from á life sentence at hard labor.

The grounds relied upon for reversal are found in two bills of exception taken during the trial.

The first raises objection to this question propounded to the sheriff of the parish, who was upon the stand as a witness for the prosecution,

“Where did you arrest William Austin — at or in what parish?”

The contention of the defense is that the purpose of this enquiry was to prove flight, and that the same was not admissible in evidence on a charge of murder where the fact of killing is not denied. It is averred that the question was calculated to prejudice the' minds of the jury. *

In his reasons, set forth in the bill of exceptions, for overruling the objection, the trial judge states that at the time the objection to the testimony was made the State had not closed, the defense had adduced no evidence, and had not, up to that time, admitted the killing.

It would thus seem that when the objection under consideration was raised, the State was seeking to prove its case under the indictment, .on , the issue tendered by the plea of “not guilty.”

To make out its case, the fact of killing by the accused must be proved. Non-constat, that when the accused came to administer their proof the fact of killing would be admitted.

As part of its testimony to establish the killing by the accused, or by one of them, the question as to the place of arrest of William Austin was asked the sheriff. Granted! that the purpose of the enquiry was to prove flight. It was, fit the time and under the circumstances of the asking, clearly admissible. State vs. Dufour, 31 La. Ann. 804; State vs. Harris, 48 La. Ann. 1189; Wharton, Cr. Ev. 750.

And we find nothing in State vs. Melton, 37 La. Ann. 79, cited contra, in conflict with this view.

The second bill was reserved to the ruling of the court sustaining the State’s objection to a question propounded to William Austin, one of the accused, while on the stand as a witness for the defense.

Counsel for defense states the question thus in the bill:

“Was your opinion or belief about Boutyette killing your brother positive or negative”?

The trial judge states the matter thus in his reasons for sustaining the objection: “Accused, William Austin, * * * had testified he had shot and killed Ohas. H. Boutyette because he (William Austin) believed his brother Robert Austin would be killed by Boutyette, and was then asked whether or not he had acted negligently in forming and adopting this belief. To which question the district attorney objected on the ground it sought: to elicit the opinion of the witness, and was sustained by the court for the reason that an answer responsive to the question would be the opinion of the witness and improper because it was for the jury to delermiue from all the facts and circumstances whether the belief had been negligently adopted.”

This ruling of the judge was correct.

The question was an improper one. The witness having stated that he had shot and killed the deceased because he believed his brother and co-defendant was about to be killed by the deceased, it was for the jury to determine the reasonableness of this belief, so entertained, or of this fear, so felt, of the existence of such peril on the part of the brother as would excuse the killing, and they (the jury) are to determine this from all the facts and circumstances then appearing as adduced in evidence.

Pender vs. State (Florida), 8 So. Rep. 840; State vs. West, 45 La. Ann. 14.

It was not for the accused witness to say he had not negligently, or carelessly, or on insufficient grounds formed his belief or opinion that his brother was then about to be killed, but that he had formed it deliberately, positively, with care and circumspection, and then acted.

What it was proper for him to state were the facts transpiring just prior to and at the time he killed the deceased, and the further fact that because of these circumstances he entertained then and there the belief his brother was about to be killed by the deceased, and acted under that belief when he, himself, shot the deceased.

But for the defense to go further and enter upon.the enquiry as to the nature and character of this belief, whether negative or positive. whether reasonable or unreasonable, whether strong or weak, whether sufficient or insufficient, is not allowable.

This was trenching upon the domain of the jury. State vs. Parce, 37 La. Ann. 270; State vs. Ross, 32 La. 856; 1 Greenl. on Ev., § 434.

Judgment affirmed.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 13,522.
    Miss Franieska Mahnke vs. New Orleans City and Lake Railroad Company.
    Syllabus.
    I. There is no rule of law which obliges a person upon the highway to keep his eye. under all circumstances, constantly upon the road before him that he may avoid injury from any defect therein; he may, ordinarily, presume that the road is in fit condition to travel; in other words, he is not obliged to presume negligence on the part of those whose duty it is to keep the highway in repair.
    2. Railway companies, who as part consideration for the acquisition of the franchise of running ears through the streets of a city, have bound themselves by contract, to pave'and keep in repair the streets between their rails, are held by stricter rules to the performance of their duty than are the municipal corporations themselves in the performance of their own obligations in this respect, to the general public.
    APPEAL from tbe Civil District Court, Parish' of Orleans— King, J.

      James O. IIenvigues for Plaintiff, Appellee.

      Denegre, Blair & Denegre for Defendant, Appellant.
   The opinion of the court was delivered by Nicholes, C. J.

Statement op ti-ie Case.

Nicholls, O. J.

Plaintiff alleges that on the 22nd of September, 18^8, she boarded one of the cars of the Rampart and Dauphine line of sai d defendant, at the corner of Desire and Rampart streets, in this city; that when said car had almost reached the corner of Dumaine and Rampart streets, she signalled to the conductor of said car to stop it; that it was stopped at the corner of Dumaine and Rampart streets; that she alighted from it, and proceeded immediately across the tracks of said company, at the rear .of said car; that the night was dark, and as she crossed the track, she stepped into a hole, between the rails on defendant company’s track, which hole was a short distance from the rail, and caused her to fall and break her ankle; that this accident happened while plaintiff was still on'the property of defendant company, after being a passenger, for hire, in one of its cars, and said defendant company is liable for any damage she has suffered which was caused by its negligence; that it is the duty of said defendant company to keep the track between its rails in good repair, and that it was a negligence on its part in not complying with its duty in keeping this track in repaiv; that there was no negligence on her part, as she was forced to cross the track, in order to reach her destination and it was impossible for her to see said hole, by reason of the night being dark; that by reason of her stepping in said hole, which caused her to fall and break her ankle, she has received permanent injury; that she is unable to walk without the aid of a crutch, and the physicians who have examined her injury all state that'she is crippled for life; that she suffered great pain, and was forced to lie in bed for many months after receiving said injury; all of which has caused her great damage and loss.

That by reason of the physical suffering, pain and mental anguish occasioned by the injury received as aforesaid, and by the fact that she has been permanently crippled, and has lost the use of her limb, and is unable to walk without a crutch, she has suffered damages in the sum of five thousand dollars.

In view of the premises she prayed for judgment for five thousand dollars against the defendant company.

Defendant, after pleading the general issue, averred that if plaintiff suffered any injury, the same was due to her own fault which wholly caused or contributed to the injury.

The court rendered judgment in favor of the plaintiff for fifteen hundred dollars, and the defendant appealed.

Opinion.

The plaintiff sues for damages received by her from stepping into a hole between the rails of the tracks of .the defendant company on North Rampart street, and at the upper crossing of Rampart and Dumaine streets, which crossing it was alleged it was the duty of the defendant to have kept in a safe condition, under its contract with the city of New Orleans.

The defendant attempted to show that the hole was not at the point stated in plaintiff’s petition,' but in the centre of Dumaine street, on the line of the Orleans Railroad, which runs through that street. There was no evidence adduced to show that there was a hole in Dumaine street — and the position of that which caused the injury has been located beyond question as being on the upper crossing of North Rampart and Dumaine streets — at a point between the rails of the defendant company for whose safe condition it was responsible under its contract with the city of New Orleans. There was no reason for the plaintiff to have been on the line of the Orleans Railroad. She had been a passenger on one of the cars of the defendant company which was going up North Rampart to Canal street, on what is known as the “wood side” of the track of the defendant company’s road. She had entered the car at the corner of Dauphine and Desire streets with the intention of visiting an aunt who lived on Bourbon street, between St. Anne and Dumaine streets. She signalled the car to stop at Dumaine street and it was stopped- — as is customary for the street ears to do — at the upper or further crossing of the cross street.

The plaintiff alighted from the car with her face to the woods and immediately turned towards the car and the river. The car started and the plaintiff crossed directly behind it towards the river side of North Rampart street. She would have been going out of her way to have crossed Dumaine street. It is unnecessary to refer particularly to the evidence as to the course taken by her after leaving the car, as the fact is, in our opinion,' undisputable that she did not pass into Dumaine street at all.

Defendant contends that the plaintiff'was in fault while making the crossing; first in turning towards and conversing with the conductor as she moved across, and second in not looking towards the ground as she crossed, to see what the condition of the crossing was.

We are satisfied that no such conversation took place; that the only thing said by the plaintiff to the conductor, with whom she was acquainted, was to bid him “Good night” while she was on the platform, or, at the furthest, while upon the steps of the car. The plaintiff, in her testimony, states that as she passed across the crossing, she kept her eyes up and in (he direction of the second or river track of the defendant company’s road upon which their cars passed, going down town towards Esplanade street, in order to make certain that she would not cross that track in front of an approaching car. She further says that although there was an electric light burning at the upper river side of North Rampart street, it was burning dimly at the time, and besides, there was an intervening post, which threw a shadow in her line of walk, and that the particular point at which she stepped into the hole was dark at the time.

We are referred, by plaintiff’s counsel, to Thompson on Negligence, vol. 2, page 3197, where the author uses the following language: “There is no rule of law which obliges a person upon the highway to keep his eye constantly upon the road before him that he may avoid injury from any defect therein; he may presume that the road is in fit condition for travel; in other words, he is not obliged to presume negligence on the part of those whose duty it is to keep the highways in repair.”

We are referred in further support of this same proposition to Hill vs. Inhabitants of Seekong, 119 Mass. 85; Reed vs. Inhabitants of Northfield, 30 Mass. 94; George vs. The City of Haverhill, 110th Mass. 507; Weisenberg vs. The City of Appleton, 26 Wis. 56; Barslow vs. City of Berlin, 34 Wis. 357, and Gillespie vs. The City of Newburg, 54 N. Y. 468, also to Ober vs. The Crescent City Railroad Company, 44 Ann. 1059.

We have had occasion to deal with this question in Shidet vs. Dreyfus Company, 50 Ann. 280; Mahan vs. Everett, 50 Ann. 1162, and Tatje vs. Frawley, 52 Ann. 884.

The first- mentioned case resembles the present one in most of its features; the injury having occurred, however, upon the sidewalk instead of the street crossing. Referring to the contention of the defendant in that ease that the plaintiff had been guilty of contributory negligence, we said: “The plaintiff had the right to be walking precisely where she was. She was not bound to walk on the gutter’s edge or in the middle of the sidewalk, but had the right to assume and presume that the whole way was clear.” (Citing Heckman vs. Evenson, 73 N. W. 430.) In the case of Tatje vs. Frawley, we held that the plaintiff was guilty of negligence in not having, under the state of facts, disclosed therein, used precautions to avoid falling into (he gutter which he should have known would likely be directly in his front.

It will be seen from these citations that there may be special circumstances in one case, calling for vigilance or care, which would not be called for in another. We do not think the plaintiff was guilty of contributory negligence. She had the right to assume that the crossing was safe, and it was not only her right, but her duty to look towards Canal street as she crossed, in order to satisfy herself as to what the situation might be, as to the approach on the river track of a car going towards Esplanade, street.

One of the defendant’s witnesses testified to the effect that he saw. no hole in the crossing which would be sufficient, by being stepped into, to break a person’s leg; this was simply the witness’ opinion.

It may be that the crossing might have remained for weeks unrepaired without any one stepping into it, but the best answer as to the sufficiency of the hole to inflict injury if stepped into, is the fact itself that the plaintiff did break her leg above the ankle by Stepping into it. It is testified to that this hole had been in existence and visible for a week, and furthermore that this crossing was liable to have such holes in it, caused by rats from the gutters working under the stones placed over it.

In view of this fact defendant was placed upon its guard as to the possible and probable bad condition of the crossing. We do not think the measure by which the city’s obligation to be advised of and to repair defects in the sidewalks and streets is to be tested, is the exact measure by which to test the obligations in this respect, of street railway companies, who have acquired valuable franchises upon the streets for their private emolument, and who, as part consideration for obtaining such franchises, have bound themselves by contract to keep the crossings between the rails in repair. They are held by stricter rules to their duty in this respect than are the municipal corporations themselves in the performance of their own obligations to the general public. (Cline vs. Cline, 41 Ann. 1038.)

We are of the opinion that the judgment of the District Court, holding the defendant legally responsible for plaintiff’s injury, is correct.

The evidence shows that plaintiff is a young lady, about nineteen years of ¿ge; that she lives with and keeps house for her father; neither his pecuniary condition nor his age are disclosed in the record. The plaintiff, as a matter of course, suffered greatly from the breaking of her leg; she was in the hospital for five months, and still goes there occasionally for treatment; she can walk, but with the assistance of a crutch or stick; Dr. Ilincks, the physician who attended her when first hurt, testified that, in his opinion, she would not be able to stand fatigue or hard work on that leg; that the probability is that she would be a cripple for life; that the break was a very bad one. Dr. Fenner, who attended her at the hospital, testified that she had not, at the time of the trial, a very good ankle remaining after the injury; that, as to the probable effect of the injury upon her in regard to her ability to use her foot and limb, he could only approximately state that he thought she was going to suffer considerable disability for a good while, but ho thought she might recover the use of that limb; it might take a number of months, but he thought she would ultimately, in all probability, get a useful limb: she might have some stiffness in the ankle, but he could not say how much; the limb will probably not be as good as it was before.

The plaintiff herself testified that the ankle was crooked and shortened.

Judgment was rendered by the court in favor of the plaintiff for fifteen, hundred dollars. Plaintiff prays that the judgment be increased to three thousand dollars.

We are of the opinion that the judgment appealed from is correct,

and, for the reasons herein assigned, it is hereby affirmed.


text:
    No. 13,742.
    State of Louisiana vs. Ross Johnson and William Pate, Alias Daniels.
    Syllabus.
    1. The accused asked three special charges to the jury, all of the same import, one of which was : “That the greater the crime, the stronger is the proof required for conviction.” Held — No error in refusal to give.
    2. There is no law or precedent in this jurisdiction, and none cited in other jurisdictions, which requires, authorizes, sanctions or approves the proposition advanced, or the distinction in criminology sought to be made.
    3. An indictment which charges that the two accused persons, naming them, “did wilfully, feloniously and of their malice aforethought kill and murder,” etc., is sufficient in law.
    4. A bill of exceptions to the ruling denying change of venue is necessary, and the testimony taken on trial of the motion has no proper place in the transcript unless brought up by a bill of exceptions by being annexed to or made part thereof.
    APPEATj from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.

      Walter Guión, Attorney General, and Joseph Moore, District Attorney, (Paul A. Sompayrac, A. B. Mitchell and Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Robert L. Belden for Pate, and E. North Gullom for Johnson, Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Defendants were jointly indicted for the murder of Paul M. Sloane, tried together by jury, found guilty without capital punishment, and from a sentence of penal servitude for life, prosecute this appeal.

Separate counsel represented the accused.

■ • At the conclusion of the regular charge to the jury, counsel for Ross Johnson requested the judge to charge additionally as follows:—

“That the fouler the crime is, the clearer and the plainer ought to be the proof to convict.”
“That the more flagrant the crime is, the more clearly and satisfactorily it should be made to appear to the jury.”
“That the greater the crime, the stronger is the proof required for conviction.”

The judge declined to so charge, and a bill of exceptions was taken. We have been referred to no law or precedent which requires authorizes, sanctions, or approves the propositions advanced, or the distinctions in criminology sought to be made.

There was no error in the ruling of the judge.

Counsel for William Pate, and on his behalf, filed a motion in arrest of judgment on the following grounds, to-wit:—

“1st. The indictment is insufficient in not charging that defendants hilled and murdered Paul M. Sloane.”
“2nd. The indictment is defective in not charging that the defendants did kill and murder Paul M. Sloane.”
“3rd. The indictment is defective inasmuch as the necessary ingredient of malice is not properly alleged.”

The motion was overruled and a bill taken.

The argument of counsel is, the indictment does not contain the words “defendants did wilfully, feloniously and of defendants’ malice aforethought kill and murder one Paul M. Sloane”, etc.; that the word used in place of “defendants” is “their”.

It is urged that nothing but the letter of the law will answer, and that the word “their” cannot be taken by intendment or implication to mean “defendants”, or “for defendants”.

In support of this the court is referred to R. S. 1047; 45 La. Ann. 1455; 48 La. Ann. 1362.

The bill of indictment charges “that Ross Johnson and William Pate, alias William Daniels,- * * * did maliciously, wilfully, feloniously and of their1 malice aforethought kill and murder one Paul M. Sloane”, etc.

The contention made on behalf of the accused Pate would require it, under pain of insufficiency, to read as follows:—

“That Ross Jolinson and William Patte, alias William Daniels * * * as defendants did maliciously, wilfully, feloniously and of defendants’ malice aforethought kill and murder one Paul M. Sloane,” etc.

The statute (R. S. 1048) declares:—

“It shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought Kill and murder the deceased.”

Testing it by the statute, the indictment in this case is entirely sufficient.

The word “their”, preceding “malice aforethought”, where two or more persons are charged with the murder, or the word “his”, preceding “malice aforethought”, where one person is charged with the crime, suffices.

Neither is it necessary, or preferable as a matter of concise expression, to use the word “defendants” or “as defendants” immediately preceding the words “did wilfully, feloniously,” etc. Their use would add nothing in the way of aptness, clearness, description, or force to the indictment.

The authorities to which we have been referred, mentioned supra, do not at all sustain the contention of counsel.

A motion for a change of venue appears to have been made on behalf of both defendants. Testimony was taken therein and is copied in the record. The motion was overruled, but no bill of exceptions to this ruling was taken. A bill was necessary, and the evidence has no proper place in the record except as brought up by a bill of exceptions, annexed to or made part thereof. State vs. Williams, 30 La. Ann. 1028; State vs. Daniel, 31 La. Ann. 91.

It is not considered, therefore, that anything relating to this motion for change of venue, or the testimony taken, is before the court.

Such, too, we take it, is the view of counsel for the accused, for neither makes any mention of the motion in briefs filed.

Judgment affirmed.

Rehearing refused.


author: Nicholls, C. J. Nioiiolls, O. J.

text:
    No. 13,779.
    Jesse W. King et als. vs. J. D. King et als.
    Syllabus.
    1. An attorney-at-law as such has no authority to submit the issues involved in a law suit to arbitrators, nor has an attorney in fact such authority, unless specially authorized to that effect. The existence of such power must appear in the record of appeal, and the agent must not pass beyond his powers. Arbitrators are, by law, required to take an oath before acting under the submission. The agent cannot waive this requirement unless specially authorized by his principal.
    ü. Consent to submit one’s differences to arbitrators is not consent to acquiesce in everything done under the submission.
    APPEAL from the Fourth Judicial District, Parish of Union— Roberts, J. ad hoc.

      J. B. Holstead for Plaintiffs, Appellees.

      Barhsdale & Barhsdale (Benjamin Bice Forman of Counsel) for Defendants, Appellants.
   Statement op the Case.

The opinion of the Court was delivered by

Nicholls, C. J.

The plaintiffs, as heirs of Joseph G. and Sarah N. King, sued for a partition between themselves and their co-heirs. Among the parties named by plaintiffs as heirs was G. L. King, a resident of Louisville, Kentucky, to whom a curator ad, hoc was originally appointed, but who subsequently answered through Barksdale & Barks-dale, as his attorneys.

Various proceedings had taken place in the case when, on October 31, 1900, the following agreement was entered into:

It is agreed by plaintiffs and defendants that Messrs. R. B. Dawkins, F. F. Preaus and J. M. Smith, with leave to them to call in B. F. Pleasant, shall take the pleadings in this case and hear the statements of each litigant, separately, as to his claim, and shall question each, one without the presence or interference of any attorney or other person, and shall hear Allen Barksdale as the agent of the absentee, G. L. King, in the same way that the other litigants are heard, but not as the attorney for any one.

After thus hearing the parties, they shall determine the amount of collations due by each heir and shall also determine whether or not the collations shall be counted in before the community is divided in two parts, so as to arrive at the third disposed of by the will of J. G. King, or not.

It is further agreed that the collations and partition shall be made as to all the property except the interest of these parties in the insurance on the life of II. E. Mosely.

It is further agreed that this committee shall decide whether or not the note on Albritton, the note on H. V. Mosely, and the judgment on Etheridge shall be sold or shall be collected and divided among the other heirs, as the other property.

It is agreed further that the property, the land and all other property, except what is named here, shall be sold to effect a partition.

It is further agreed that said committee shall determine what amounts, if any, J. W. King, executor and administrator, is liable for, for 1899 and 1900, for rents of property.

It is further agreed that judgment shall be rendered by the court by agreement of parties upon the finding of these men thus agreed on.

Farmersville, La., Oct. 31st, 1900.

J. B. ITolstead,

Attorney for Plaintiff.

Barksdale & Barksdale, Attorneys for Defendants.

Indorsed: “Filed Oct. 31st, 1900. Edw. Everett, Clerk, D. O.”

The parties named as arbitrators consented to act. On November the 2nd, the following award was filed in court:

Report of Committee.

We, your committee to whom has been referred matters and things as set. forth in the agreement of parties filed Oct. 31st, 1900, in suit entitled J. W. King et al. vs. J. D. King and others, No. 4447 of the docket of the Fourth District Court, of Union Parish, La., beg leave to report as follows:

1st. We find that the heirs of Joseph G. King and Sarah N. King, deceased, should collate as follows:
Mrs. Fannie B. Roberts........................ $1,034 10
Mrs. Bettie McCrary.......................... 1,707 60
Mrs. Zylphia Hester........................... 1,136 11....
J. W. King................................... 1,145 83
Of this amount $156.60
less taxes for 1899 37.37
Balance 119.23
is for rent for 1899.
Mrs. Stella Johnson and Vada King (heirs of W. R. King) . ..'................................. 1,082 00
Vada, extra of her half of above............... 15 00
J. D. King................................... 162 00
C. J. L. King................................. 3,129 00
. C. L. King................................... 2,400 00
2nd. That said collations shall be counted in before the community is divided in two parts.
3rd. We recommend that the notes on Mosely and Albritton and judgment on Etheridge be sold.
4th. We are unable .to say what amount .L W. King, executor and administrator, is liable for, for the year 1900, for the rents, for the reasons that the places have been rented for part of the crop and same has not been collected for that year.
Respectfully Submitted,
Jas. M. Smith,
Fred. B. Preaus,
This Nov. 1,1900. R. B. Dawkins.
Indorsed: “Filed Nov. 2, 1900.” — Edw. Everett, Clerk, D. C.

On the same day G. L. King filed the following motion to set aside ¡he award:

“G. L. King, by counsel, refuses to agree to the award made by the gentlemen to whom these matters were referred, and makes this refusal only because he believes great injustice has been done him. This defendant has been adjudged to collate for more than he ever received. Other parties have been made to collate too little, and, believing that this injustice has been done by misrepresentation to said gentlemen, he makes this refusal with regret.
“lie avers that the agreement signed, stipulated that they.‘should take the pleadings in this case, and hear the statement, of each litigant separately as to his claims, and shall question each one, without the presence or interference of any attorney or other person.’
“This agreement was especially stipulated and inserted into the agreement signed. This defendant alleges that, notwithstanding this special stipulation or clause in the agreement, Edw. Everett, clerk of this court, was present nearly or quite all the time when statements of litigants were being heard, and the committee was deliberating on questions submitted, and said Everett commented on slatements.
“Defendant further alleges that said committee questioned parties before them as to claims as to others than themselves.
“Neither the committee nor the parties were sworn.
“Wherefore, this defendant refuses to agree to judgment being rendered in accordance with the award, and prays that said report or award he set aside, that this case be re-set for trial and proceeded with regularly.
“Prays for necessary orders and for general relief.
■ “Barksdale & Barksdale, “Attorneys for Defendant O. L. King.”
Indorsed: “Filed Nov. 2, 1900. Edw. Everett, Clerk. D. C.”

The motion was overruled and the District Court rendered the following judgment:

Judgment.

In this case, by reason of the law and the agreement of parties signed and filed in this case, and by reason of the report of the committee, filed Nov. 2nd, 1900, being in favor thereof, and the prayer of the petition, after answer being considered, it is ordered, adjudged and decreed that all the effects belonging to the successions of Joseph Gj-. and Sarah N. King, be sold by the sheriff of Union parish, La., at public auction, after legal advertisement according to law, and the property in Morehouse parish be sold on the premises in Morehouse parish, to effect a partition between the heirs, except as to the life insurance policy of H. E. Mosely, which is left out for collection by the heirs, and the proceeds to be divided, when collected, in the same manner as thp other effects sold under this judgment. It is ordered, that the following named heirs and parties to this suit shall account for the following amounts of money, which shall be counted in before the community .which existed between Joseph G. and Sarah N. King is divided into two parts :

Mrs. Eannie B. Roberts shall account for one thousand thirty-four dollars and ten cents ($1034.10).

Mrs. Bettie McCrary shall account for seventeen hundred and seven dollars and sixty cents ($1707.60).

Mrs. Zylphia Hester shall account for eleven hundred and thirty-six dollars and eleven cents ($1136.11).

J. W. King shall account for eleven hundred and forty-five dollars and eighty-three cents ($1145.83).

Mrs. Stella Johnson, as heir of W. R. King, shall account for five hundred and forty-one dollars ($541.00).

Vada King, as heir of W. R. King, shall account for five hundred and fifty-six dollars ($556.00).

J. D. King shall account for sixteen hundred and twenty-two dollars ($1622.00).

C. J. L. King shall account for thirty-one hundred and twenty-nine dollars ($3129.00).

G. L. King shall account for twenty-four hundred dollars ($2400.00).

It is ordered that the funds arising from the sale of the effects aforesaid, as well as the collection of the Mosely insurance policy, shall be turned over to the clerk of the District Court in and for Union parish, to make partition, and that said clerk of court and ex-officio notary public shall divide the mass of assets into two equal parts, after first deducting all the necessary costs of this partition, and one part shall be divided into eight equal parts, and from each part must be deducted the amount herein to be decreed clue by each of the heirs, in such manner as to make the heirs of Sarah N. King equal in the division of her estate. The other half of the succession funds on hand must first be so divided as to pay to the legatees, named in the will of J. O. King, of record in this case, one-third, and the remainder be then divided into eight equal shares; and from each of these shares must be taken out the amount of money herein decreed to be due by each heir, in such manner as will make all the heirs of J. C. King get a lust and equal portion of his estate, after deducting the one-third allowed by the will. It being understood that Stella Johnson and Yacía King stand as one heir, representing’ together one share.

This done, read and signed in open court on this Nov. 2nd, 1900.

W. R. Roberts, Special Judge.

Endorsed: “Filed Ncv. 2nd, 1900. Edw. Everett, Clerk, D. C.”

C. J. L. King, Stella Johnson, (nee King), J. D. King, G. L. King and Yada King appealed.

Plaintiff moved to dismiss the appeal on the ground that the judgment appealed from was a consent judgment.

On Motion to Dismiss.

The opinion of the Court was delivered by

Nioiiolls, O. J.

A motion has been made to dismiss this appeal in limine on the ground that the judgment is a consent judgment. The application is not well grounded. The consent of parties who have a lawsuit or differences with one another to a submission to arbitration is not a consent to acquiesce in all the proceedings which may take place under the submission or the award which will be made thereunder.

Article 3130 of the Civil Oode expressly recognizes a right of appeal even though the parties may have expressly renounced it; though the parties may have subjected themselves to a penalty for availing themselves of the right by a penalty, should one have been stipulated to be paid in such a contingency. (Civil Code, 3106-3130.)

.1 he determination of the fact itself whether the parties have giveu consent to a submission may he one of the issues presented by the appeal.

Tnc motion to dismiss is refused.

On the Merits.

The judgment in this case was based entirely upon the award of arbitrators. The record declares and the fact is conceded that the arbitrators took no oatli as they were required to do by Article 3111 of the Civil Code.

It is claimed that Barksdale &. Barksdale, agents or attorneys of the defendant, consented to and waived this requirement verbally, but we find no authority on their part to give such consent or make such waiver.

Article 3101 declares that an attorney in fact (still less an attorney at law) can not make a submission without a special power, and the submission under Article C. C. 3100 must he in writing. An attorney-at-law, as such, has no authority to make a submission. Both attorneys and agents must keep within their powers. We have no alternative but to reverse the judgment.

For the reasons assigned, it is ordered, adjudged and decreed that 1he judgment appealed from be, and the same is hereby, annulled, avoided and reversed, and that this cause be remanded to the District Court for further proceedings.

Rehearing refused.