author: Watkins, J. Watkins, J.

text:
      No. 12,933.
    Succession of William Parham and Martha Rhodes, His Wife.
    Syllabus.
    The terms of article one hundred and eighty-six of the Constitution of 1898 relate to the fuiure, and their effect is prospective only; and they can not be given a retrospective operation, the result of which would be a remission of a large amount of delinquent taxes, in the absence of any provision dearly indicative of that purpose on the part of the framers of the organic law.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Fergus Kernan, E. Evariste M.oise, John Wagner and Giunio F. Socola for Plaintiff in Rule, Appellee.

      F. 0. Zacharie for State Tax Collector, Defendant in Rule, Appellant.
    Argued and submitted February 28, 1899.
    Opinion handed down March 20, 1899.
    Rehearing Refused, with Reasons, May 15, 1899.
   The opinion of the court was delivered by

Watkins, J.

It appears from the record, that, notwithstanding the fact that William Parham departed this life in the city of New Orleans on the 26th of June, 1865, possessed of one horse, which was ■valued in the inventory then taken at $50.00, and a small lot of ground •with the improvements thereon, valued at $1100.00, and that his surviving widow, Martha Parham, was qualified as the administratrix of his succession on the 17th of July, 1865, the public administrator •opened his succession and that of his wife on the 17th of July, 1897— che latter having died on the 4th of November, 1874, after the lapse •of a ten years’ administration..

The conspicuous feature of the present administration is, that the horse described in the former inventory has disappeared, and the appraised value of the lot and improvements has been reduced to $50— same being the sole asset of the successions of the aforesaid deceased persons.

It further appears, that an order for the sale of said property was .granted on the 9th of September, 1898, upon the representation of the public administrator, “that there are taxes and costs of administration due, and the only way to settle these successions is to cause the property to be sold.”

A short while subsequently, the attorney for the public administrador, joined by other counsel, obtained a rule on the tax collector, to show ■cause why the assessments of taxes against the aforesaid property, as that of William Parham, for the years 1872, 1873, 1874, 1875, 1876, 3881, 1882, 1883, 1885, 1886, 1887, 1888, 1889; 1890, 1891, 1892, .1893, 1894, 1895 and 1896 — a period of about twenty-five years— should not be declared null and void, on the ground that same were made against, and in the name of a dead person; and why, for the .same reason, all the inscriptions of the tax liens, privileges and mortgages securing same should not be cancelled and erased.

Subsequently, the aforesaid rule was supplemented with pleas of prescription of three and five years, against “all taxes ‘and tax inscriptions for the years 1890 to 1895, inclusive.”

All these proceedings were taken antecedent to the adoption of the Constitution of 1S98, but, immediately thereafter, -the aforesaid rule was again supplemented by a statement to the effect “that all tax ■“ liens, privileges, and mortgages against said property are prescribed by three years from the 3ist day of December of each of said years,” reiterating the other allegations of his previous rule.

The definite object of the last amendment was to enable the successions to avail of the possible benefit of the one hundred and sixty-eighth article of the Constitution of 1898, as a supposed constitutional remission of all taxes and the consequent release of all tax inscriptions antecedent to that limit.

That this seems to have been the appreciation of the district judge is evidenced by his decree which made the rule absolute to the extent of ordering the cancellation and erasure of all the tax inscriptions, liens and privileges and mortgages — for the various years enumerated from 1872 to 1890, inclusive; and all tax inscriptions of liens and privileges for the years 1891, 1892, 1893,and Í894, bearing upon or affecting said property.

It is from that judgment that the State tax collector has appealed; and in this court there has been no answer to the appeal filed, and no amendment thereof requested.

Upon this statement, it is evident, that this is a proceeding specially inaugurated for the purpose of disincumbering said succession projjerty of its accumulated burden of taxes and tax encumbrances, so as to effectuate a sale by the public administrator; and whether the judgment appealed from shall eb sustained or not, exclusively depends upon what is the proper interpretation to be placed upon the aforesaid article of the Constitution.

This is conceded by the counsel for the public administrator, who make this statement in their brief, viz.:

.“The question before the court is the construction of Article 186 of “ the Constitution of 189S.

“Tt reads as follows:

“ ‘No mortgage or privilege on immovable property shall affect thirci “persons, unless recorded or registered in the parish where the pro- “ perty is situated, in the manner and within the time as is now or “ may be prescribed by law, except privileges for expenses of last ill— ness and privileges for taxes, State, parish or municipal; provided, “ such tax liens, mortgages, and privilege^, shall lapse in three years- “ from the 31st day of December, in the year in which the taxes are “ levied, and whether now or hereafter recorded.’ ’’ Pp. 3 and 4.

The foregoing article is an exact reproduction of Article 176 of the Constitution of 1879, except the proviso, which reads as follows, viz. t

“Provided such, privilege shall lapse in three years.”

A comparison made of the two articles discloses, that the present article contains the following words, in addition to those contained in the former, viz.: “Tax liens and mortgages,” and “from the 31st day of December, in the year in which the taxes are levied, and whether now or hereafter recorded.”

The terms of the former article are broadened so as to cover and include tax mortgages, as well as privileges, and so as to fix a date from which the time within which they are to lapse shall be computed; and thereto is super-added the phrase “and whether now or hereafter recorded.”

The question for consideration and decision is whether that article is to be given a retrospective signification and effect; or rather, to determine whether such was the purpose and intention of the framers of the organic law.

It is the general rule that a law can only prescribe for the future. R. C. C., 8.

It is generally understood to be a sound rule of construction never to consider a law as applicable to cases or questions arising before its passage, unless the legislature have, in express terms, declared such to be its intention.

In City vs. Vergnole, 33 Ann. 35, this question was discussed, and the court held, that article eight of the Civil Code, “merely dictates “an universal rule of construction, recognized in every known system “ of jurisprudence.”

A- leading author on the question, puts the proposition thus:

“One of the cardinal rules by which courts are governed in inter- “ preting statutes is, they must be construed as prospective in every “instance, except when the legislative intent that they shall act u retrospectively is expressed in clear and unambiguous' terms, or such “ intent is necessarily implied. .* * * * * *

“Every reasonable doubt as to the intention of the law-maker is “ resolved against rather than in favor of the retrospective operation “of the statute.” Wade on Retroactive Laws, Secs. 33. 34, 35.

The same rule of construction unpuestionably prevails in regard to constitutional provisions as with regard to statutes.

On this subject the same author says:

“This principle is not only applicable to legislative acts, but to- “ State Constitutions, and, in fine, to all written law. Being a rule- “ of construction, it may be applied to every conceivable expression of “ the will of the law-making power, where there is a doubt, whether ' “ it was intended to take effect prospectively or retrospectively,” etc. Ibid.

The same principle is announced by Sedgwick, Vide Con. Stat. and Const. Laws, p. 19.

Cooley on Taxation, p. 221.

“We shall venture, also, to express the opinion,” says the same author, “that a Gonsiitution should operate prospectively only, unless “the words employed show a clear intention that it should have a '“retrospective effect.” Cooley, Cons. Lim., p. 62. Story on Const. Sec. 454. Sayer vs. Wesner, 8 Wendell, 661. Price vs. Matt, 52 Penn., St. 315.

On the foregoing authorities, we are of opinion we can safely announce the governing rule to be that the terms of a constitutional .article like the words of a statute should be considered as having a ^prospective effect only, unless they clearly exhibit the intention of -.their framers to have been that they should be given a retrospective effect.

In this discussion we do not propose to argue the question of the power of the convention to adopt an ordinance having a manifestly retroactive effect. The power of a Constitutional Convention so to do, may, for the purposes of the present decision, be conceded.

The only language of the article which has been pointed out as justifying the retrospective operation of same is that of the last paragrax>h, viz.: “And whether now, or hereafter recorded.”

In other words, the contention of the public administrator is, that by declaring that tax liens, privileges and mortgages securing the payment of taxes shall lapse in three years from the 31st day of December in the year in which such taxes are levied, “and whether now •or hereafter recorded,” the framers of the Constitution intended to release all property from their operation and effect, in any and all years preceding its adoption.

We are most certainly unwilling to adopt such an interpretation as that, unless our judgment is clearly convinced that the words of the Constitution imperatively require such a construction at our hands.

We know, as a fact, that the Constitutional Convention of 1879 pur■sued an exactly opposite course, and adopted an ordinance for the ■jelief of delinquent tax-payers, for the express purpose of saving all antecedent taxes from remission; and it is common knowledge, that no revenue law of the State has been enacted during many years past which contains a sweeping repeal of all previous revenue laws.

Consequently, in our opinion, such an interpretation of the aforesaid article, as is contended for by counsel of the public administrator, would be received as a surprise, and the result of such a construction would be little short of a public calamity; because of the vast amount -of delinquent taxes which are covered by the aforesaid ordinance, and which have been, .heretofore, held impreseriptable by many decisions ■of this court.

We have given this question most careful and serious consideration, •and have reached a conclusion exactly opposite to that of our learned brother of the District Court.

Counsel for the State has reproduced and had incorporated into his brief the opinion of the Circuit Court of Appeals for the parish of Orleans in the case of State ex rel Hart vs. City of New Orleans, which involves the question we have under consideration, and the examination of which has afforded us pleasure and satisfaction, in that it perfectly accords with our views, and is both admirably and forcibly expressed.

We have, therefore, concluded to adopt the same and make it part •of the opinion of this court.

It is as follows, in so far as it appertains to the question under •consideration, viz.:

“We now pass to the consideration of the plea of prescription of “ three years, under Article 186 of the Constitution of 1898. Article '“ 176 of the Constitution of 1879, reads as follows:

“ 'No mortgage or privilege on immovable property shall affect third “ persons, unless recorded or registered in the parish where the property is situated, in the manner, and within the time as is now, " or may be, prescribed by law, except privileges for expenses of last illness, and privileges for taxes, State, parish or municipal, provided “ such privilege shall lapse in three years.’ ”

“In Davidson vs. Lindop, 36 Ann., 767, it was decided that the lim- “ itation of three years only applied to special privileges named when ■“ they are unrecorded, and the article meant that no unrecorded privi- “ leges shall affect third persons, except the special ones mentioned, “ which, though unrecorded, shall have effect, provided such unre- “ corded privileges shall lapse in three years.

“Article'176, supra, was ipsissimis verbis, incorporated into Article “ 186 of the Constitution of 1898, and we must presume that it was- “ adopted with a knowledge of the judicial construction placed upon-“the former, and such construction, consequently, attaches to the- “ latter.

“But Article 186 goes on to say; and here the difficulty arises—

“ ‘From the 31st day of December in the year in which the taxes are- " levied, and whether now or hereafter recorded.’ ”

“The relator urges that ‘the tax liens, mortgages and privileges,. “ securing the city taxes of 1874, 1875, 1876, 1894, are prescribed. “ under the last quoted terms of the article.’ ”

“We may dispose of the discussion in the briefs as to the power of “ a constitutional convention to pass a retroactive ordinance when it. “ does not impair the obligation of contracts, with the simple state- “ ment that the affirmative of the proposition is beyond dispute.

“The present inquiry is not as to the power, but as to the intention “ of the framers of the organic law.

“It is elementary that a constitutional enactment should be con- “ strued to operate prospectively only, unless the language employed “ manifests a clear intention to give it a retrospective effect.

“Do the words ‘shall lapse in three years from the 31st of December “ in the year in which the taxes are levied, and whether now or here■'after recorded,’ clearly manifest an intention to sweepingly prescribe all tax privileges which, by existing law and jurisprudence, “have heretofore been deemed impi-eseriptible?

“We think not.

“The language already cited as common to the analagous clauses of “both Constitutions, decree that there shall exist a privilege for “ unrecorded taxes for three years. This would leave to legislative “ discretion the right to fix any limit it might deem proper to the- “ prescription of recorded tax privileges.

“Since 1880 this limit has been variously fixed at three years by “ most of the revenue acts, and five years by the Revenue Act of 1882.

“It was evidently the purpose of the Constitution to curtail the “ power of the legislature in this respect, and to permanently fix in the “ instrument itself and beyond reach 'of legislative uncertainty, the “ prescriptive period of recorded tax privileges at three years.

“The same may be said as to the time from which prescription is to “ run. There had been conflict of legislation on this point, some of “ the revenue acts providing that prescription ran from the filing of “ the tax roll, and one of them — that of 1888 — and a special statute, “ Act 26 of 1886, fixing the date at December 31, of the year of the “ levy of the tax. It was, doubtless, to prevent similar conflict in the “future that the date ‘December 31st’ was inserted in the organic “law. It may be conceded that the words immediately following, to-wit: ‘And whether now or hereafter recorded’, are intended to “ have, and do have, a retroactive effect, but not to the extent and in “ the manner suggested by relator. At the time of the adoption of the “ Constitution, the term of prescription of the privileges securing the “taxes of 1895, 1896 and 189?, had not expired; they were then “recorded, or, in other words, within the meaning of the eonstitu- “ tional expression ‘now recorded.’ These words were intended to say “that, as to those tax privileges, prescription should run, not from “ the filing of the tax roll, but from the 31st of December of the year “ in which the tax was levied, and that this should also apply to all tax “ privileges ‘hereafter recorded.’

“We think that an analysis of the article, in connection with law “ and jurisprudence, as they stood at the time of its adoption, shows- “ the intention of the Constitution to provide:

“First — That all privileges for taxes, whether recorded or unre- “ corded, shall lapse in three years, and that it shall not be competent for the legislature to extend this period of prescription.

“Second; — That prescription shall run, npt from the filing of the “ tax roll, but from the 31st of December of the year in which the tax “ is levied, as to all tax privileges hereafter recorded.

“Third — That, as to the tax privileges already recorded by the- “ filing of the roll, prescription shall run, not from the filing of the “tax roll, but from the 31st of December of the year in which the “ taxes were levied. See Revenue Acts of 1886 and 1888.

“The view we have expressed as to the intention of the Constitu“tion is confirmed by the fourth paragraph of Article 325 (schedule),, “to the effect that ‘all fines, taxes, penalties, forfeitures and rights “ due, owing or accruing to the State of Louisiana, or to any parish,. “ city, municipality, hoard, or other public corporation therein, under “ the Constitution and laws heretofore in force, * * * shall con- tinue and remain unaffected, by the adoption of this Constitution.’

“This is so strongly illustrative of the purposes of the convention, “ that we do not deem it necessary to determine whether, in case of “ conflict, Article 325, the higher number and later in position, would “ not necessarily take precedence of Article 185.

“It has been aptly said, that a construction which raises, a conflict “ between parts of the Constitution is not permissible when, by any “ reasonable construction, the parts may be made to harmonize. An “ interpretation of the meaning of a particular clause based on all the “ provisions in pari materia of the instrument as a whole, should pre- “ vail when it alone can harmonize the apparent contradictions of an “ inartistic phraseology.

“It may lie added that, while the argument, from inconvenience, can “ not properly be used by courts to avoid the effect of a plain declara- “ tion of a Constitution, yet it may be properly invoked as a guide for “ the ascertainment of intent where doubt may exist.

“Act 57 of 1884, Section 3, makes it the duty of the city to turn over to the Board of Liquidation of the City Debt, all uncollected revenues of the city anterior to the year 1879, when collected, to be “ applied to the payment of interest on and redemption of bonds “ issued for the retirement of the judgment debt arising from muni- '“ cipal obligations, anterior to 1879.

“Pretermitting the question of the impairment of a contract, and “ assuming, as we must, that no State Constitution would deliberately “violate the Federal limitation, we may view the matter as one of “ interpretation, and not of constitutionality.

“The convention can not be credited with the intention of destroy- “ ing the securities pledged sacredly by law to the payment of munici- “ pal creditors, in the face of the declaration of Article 325, that no tax or right due to any city or board shall be affected. *

“Therefore it is ordered, adjudged and decreed, that the plea of “ prescription filed in this court be overruled, and that the judgment “ be and the same is hereby affirmed with costs.”

Concurring in the foregoing opinion, the necessary result is, that the judgment appealed from must be reversed, and one entered discharging the rules taken in behalf of the successions of William and Martha Parham.

"It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the rules taken in behalf of the successions of William and Martha Parham, deceased, for the cancellation and erasure of inscriptions of certain tax liens, privileges and mortgages, against succession property, be discharged and rejected at the cost of the plaintiff in rule.

On Application for Rehearing. ,

Watkins, J.

This case was tried in the lower court exclusively upon the theory that the taxes and tax inscriptions under consideration had been remitted by the terms of the 186th Article of the Constitution of 1898, and, in the lower court, that theory was sustained, and the tax collector appealed.

That was the only question argued at bar, or in briefs by counsel on either side; and, therefore, it was the only question that could be tried and decided here. *

The present application rests, exclusively, upon the theory thait this court committed an error in not having passed the limits of the judgment appealed from, and the argument presented here, and examined and decided the case upon a question of prescription, resting for its solution upon various tax statutes, of date anterior to the Constitution, while admitting that i-t was the error of counsel in not having called the attention of the court thereto in argument or brief.

We must decline to entertain this view, or, now, investigate the ease upon any such theory.

If this were permissible, there would be, practically, no end of litigation ; there would never be any determination of a case.

Rehearing refused.

Mr. Justice Monroe takes no part, as this case was argued and submitted prior to his appointment to this bench.


source: Caselaw Access Project

author: Watkins, J. Breaux, J.

license: Public Domain

text:
    No. 12,883.
    Ernest E. Woodcock vs. David G. Baldwin.
    Syllabus.
    The destination du pere de famille is the use which the owner has Intention* ally established on a particular part of his property in favor of another part, and which is equal to a title with respect to perpetual and apparent servitudes thereon; and by this destination du pere de famille is meant the \ disposition which the owner of two or more estates has made for their respective use.

      in relation to such a servitude, permanence of destination, and the earactere de perpetuite are the essential prerequisites of their estah vhment.
    if the owner of two estates, between which there exists a: oparent and continuous servitude, sell one of those estates without any n 'tion being made of same in the title, it shall continue to exist in favor of, or upon the estate which has been sol'd.
    The destination made by the owner is equivalent to title with regard to apparent and continuous servitudes.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Glegg & Quintero and Ghaffe & Bowers for Plaintiff, Appellee.

      E. Howard McCaleb for Defendant, Appellant.
    Argued and submitted March 7, 1899.
    Opinion handed down April 17, 1899.
    .Judgment amended and rehearing refused May 15, 1899.
   Opinion on application for rehearing by Breaux, J.

The opinion of the court was delivered by

Watkins, J.

Alleging himself to be the owner of certain described pieces, or parcels of improved real estate in the city of New Orleans, the plaintiff avers that the defendant, claiming to be owner thereof, or some portion thereof, has taken possession of same, either through himself, or his tenants, and refuses to surrender same, although amicable demand has been made of him therefor.

The lots of ground in contest are situated in the Sixth District of the city, in square No. 455, bounded by Napoleon avenue, Baronne, Berlin and Dryades streets; one of the said lots is designated as No. k, ■commencing at a distance of ninety (90) feet from the corner of Napoleon avenue and Baronne street, and measuring thirty (30) feet front on Napoleon avenue, by one hundred and twenty (120)’ feet in ■depth, between parallel lines; another of said lots is No. 15, commencing at a distance of sixty (60) feet from the corner of Berlin and Dryades, by one hundred and twenty (120) feet in depth, between parallel lines; and the third is an irregular piece of ground in the same square, composed of lots 9, 11, 12, 23 and 24, commencing on Napoleon avenue at a distance of fifty-four (54) feet from the corner of Dryades street, measuring six feet front on Napoleon avenue, and extending towards Berlin street, one hundred and thirty (130) feet, . and thence at right angles with Baronne street, a distance of sixty-six (66) feet, and thence on a line at right angles with Berlin street, etc.

Petitioner alleges that there is situated on the aforesaid lot No. 4, a dwelling which extends over a lot of which the defendant claims to ■be owner, but which said property in fact belongs to him; that he has the right to occupy and enjoy the use of and the revenue to be derived from same, but that the defendant having assumed possession thereof has deprived him thereof, though his said possession is in bad faith, 'he well knowing that he is not the owner of said house.

That the defendant has received the rents and revenues of said ■house for the five months preceding this suit, and for which he owes him the sum of $400, the rental value thereof being eighty ($80) •dollars per month.

The petition then, somewhat, qualifies the foregoing statement ■thus, viz.:

“He further shows that the house, situated as hereinbefore “ described, partly on the lot belonging to your petitioner and partly “ on the lot claimed by Baldwin, is, in so far as it rests on the lot 4‘ owned by your petitioner, the property of your petitioner; and in so '“far as it rests upon the lot owned by the defendant; your petitioner “ believes it to be the property of the defendant.”

Alleging the impracticability of a division of said house in kind, ■ and that an attempt to so make it would result in its total demolition and destruction, the plaintiff avers his unwillingness longer to hold said house in common, and demands a sale thereof in order to effect a -partition.

His prayer is that he be recognized as the owner of said properties, .and that defendant be decreed to remove from said premises, and to •discontinue the use of same; and that there be rendered a decree ordering the sale of said house as an entirety, in order to effect a partition thereof.

The answer of the defendant substantially avers that he is. the • owner of two lots of ground in the aforesaid square, designated by the numbers five (5) and six (6), adjoining each other, and each one measuring thirty (80) feet front on Napoleon avenue, by one hundred • and twenty (Í20) feet in depth, between parallel lines, “together with the improvements thereon, and the rights, ways, privileges, and advantages thereunto belonging, or in any wise appertaining, etc.”

That h’e is, also, the owner of the two lots in the same square designated by the numbers seven (7) and eight (8), which adjoin each other, and front on Napoleon avenue, and have exactly similar boundaries as the two first described.

That he acquired said properties at a sheriff’s sale made on the 21/th September, 1896, in executory proceedings entitled, Mrs. Mary G. T. Stempel, Guardian, vs. William F. Fullham, in the Civil District Court, parish of Orleans, in the foreclosure of an act of special mortgage which had been executed by said Fullham in favor of the-executor of the estate of I). 0. McOan, bearing date June 5th, 1895.

That he is informed, and believes, that the plaintiff in this suit purchased from the aforesaid Fullham, certain lots adjoining his property aforesaid, by a notarial act which bears date October 10th, 1896, about fifteen (15) days subsequent to his acquisition aforesaid.

That, before mortgaging said properties to the estate of McCan, said mortgagor, Fullham,“had constructed on said lots five (5) and six (6) * * * a residence on Napoleon avenue * * * and so “ represented to the mortgagee, and had established the division fence “ and buildings thereof, representing said improvements thereon to “ be situated upon said lots five (5) and six (6) so mortgaged as here- “ inabove recited.”

That said Fullham had, also, constructed a residence on lots seven Cl) and eight (8) in the same square, prior to the mortgaging thereof, and had, likewise, established boundaries, fences, etc., prior to the execution of said mortgage, “representing that the said residence, “ buildings and improvements, were situated and located upon said “ lots so mortgaged as aforesaid.”

The answer further avers that the destination made by Fullham, who was, at the time, the owner of the property mortgaged and subsequently sold to defendant, and, also, of the adjoining property which was subsequently acquired by the plaintiff, “is equivalent to “ title with respect to the continuous and apparent servitudes which “ he had established in favor of the estate acquired by the defendant “ as aforesaid upon the adjacent property subsequently acquired by “the plaintiff herein.”

That the limits assigned to said property by said Fullham, at and prior to said sale, “can not be disturbed, or in any way encroached “ upon by the plaintiff herein.”

That Fullham is, and was, estopped from claiming any part or portion of the building and improvements situated within the limits so assigned by him as aforesaid; and that he could not transfer to the plaintiff herein any greater rights or titles than he himself possessed.

That the plaintiff is, likewise, estopped from asserting any right, title or interest, in or to the buildings, improvements and fences which were so erected by his vendor, Fullham, upon the lots so acquired by the defendant; and from questioning or disturbing the bounds and limits so fixed and established by his vendor, who had previously mortgaged same to the estate of McCan, and which defendant subsequently acquired at foreclosure sale.

The answer further avers that the plaintiff never acquired by conveyance from Fullham any right, title or interest whatever in the dwellings, buildings or improvements, which were acquired by defendant as aforesaid; but, that same are “illegally, wrongfully and fraudu- “ lently claimed by said plaintiff.”

It further avers that the buildings and improvements on lots five (5) and six (6) are worth more than $4,000; and those on lots seven (Í) and eight (8) are worth more than $5,000.

It concludes with a prayer that the plaintiff’s demand be rejected.

On the trial, the following judgment was rendered, viz.:

That the plaintiff is recognized as the owner of the properties., described in his petition, “together with all the buildings and im- “ provements thereon, except the portion of the house located mainly “upon lot No. 5, as far as it extends upon lot No. 4; and except the “portion of the house located mainly upon lot No. 8, so far as it extends upon the strip of ground lying between lot 8 and fractional' “lot 9.

“The ownership of lot No. 4, and of said strip between lot 8 and fractional section 9, is decreed subject in defendant’s in favor to the-personal servitude of use and habitation to the distance that said two-houses rest, respectively, thereon; this servitude to last, respectively,so long as said houses, respectively, shall remain, and no longer; and when said houses, or either one of them, shall no longer remain, plaintiff’s ownership, in all respects thereafter, shall be absolute and complete, as though said servitude had never existed.

“Plaintiff’s demand for rents as to all properties, except the parts thereof decreed subject to servitude, is dismissed as in case of non-suit; and the right is reserved to both parties to have permanently marked the limits recognized by this decree also reserved.”

A rule was taken on the part of defendant for a new trial, but it ■was discharged, and, thereupon, the defendant obtained a suspensive appeal from the aforesaid judgment.

In this court the plaintiff has filed no answer to the appeal, and requested no amendment of the judgment; but, in the brief of his counsel, we find this statement:

“The judgment appealed from dismisses plaintiff’s demand for rents, as in the case of non-suit. * * * Therefore the plaintiff is here content with the non-suit of his demand for rent, and will adjust that in another proceeding hereafter.” '

The statement made of the plaintiff’s case in the brief of counsel, is as follows:

In 1892, William E. Eullham owned all the property, with the exception of two or three lots, located in the square bounded by Napoleon avenue, Dryades, Baronne and Berlin streets; and being desirous of improving the same, he executed mortgages on various lots, to various money lenders. He obtained a loan on lots 5 and 6 from D. 0. McCan, then living, and on lot 4, from Mike McQuade, then living. At the time the loans were first obtained, the house, No. 1817 Napoleon avenue, was being built; one-half of this house rested c.n lot 4, and one-half thereof rested on lot No. 5.

That Eullham executed a mortgage in favor of the estate of McCan ■on June 11, 1895, for $53,000, hypothecating as security therefor five pieces of property, among which were lots 5 and 6, on Napoleon •avenue, above described; and, also, lots Nos. 7 and 8 — reference being made to a private sketch, as annexed to the act of mortgage, which is. in the record.

That Eullham having made default in the payment of the sum of money loaned, foreclosure proceedings were instituted by Mistress 'Stemple, guardian, on June 11,1896, and they resulted in a sale to the ■defendant on September 24, 1896, he being the last and highest bidder Tor all of said lots, 5, 6, 7 and 8.

Then occurs this statement, to-wit:

“That plaintiff in this suit, a resident of the State of Arkansas, •purchased, on October 10, 1896, lot No. 4, and fractional parts of lots 9,11,12,14,15, 23 and 24, together with all the improvements on said lots and. portions of ground, and all rights, ways, privileges and ..advantages, thereto belonging, or in any wise appertaining.

“The mortgage, executed in 1893 (that in favor of McQuade), on lot 4 was specially assumed as part of the purchase price by the plaintiff.”

“Ernest Woodcock having bought lot 4, together with the improve.rnents thereon, is, in our opinion, entitled to b© recognized as owner thereof, and, also, as owner of that part of the house which rests on his property.”

From the foregoing statement it appears that this proceeding is somewhat sui generis, its object being chiefly to have the plaintiff recognized as the owner of a building to the extent that it extends over and rests upon his lot, and to obtain a decree of partition by li citation.

This claim is denied and resisted by defendant on the ground that the mortgagor, who, at the time owned the whole property, divided -same into lots, and erected buildings upon them, and thereafter borrowed money thereon, .and mortgaged same with the improvements, .and, in the foreclosure of same, he purchased at judicial sale, and thereby acquired the mortgagee’s rights; and that, hence, the apparent servitude which had been thus imposed upon the property mortgaged passed to him by said sale, and as a part of the adjudication.

Per contra, the contention of the plaintiff’s counsel is that a judi- ■ cial sale under execution, transfers only the rights of the debtor, such .as they are; and that a purchaser thereat gets no better title to the property than was held by the defendant in execution, and acquires no right on the property which did not belong to him; and to this purport a number of authorities are cited.

Accepting this proposition as undoubtedly true of an ordinary execution sale, under a money judgment, yet it may be somewhat inac-eurate with regard to a sale made pursuant to an order of seizure and sale in the foreclosure of a conventional mortgage; as in such ease the -source and extent of the purchaser’s rights is the act of mortgage, and not the adjudication under it.

In the former case, the purchaser only acquires what the execution debtor actually owned; whilst, in the latter case he acquires all the lights which the debtor represented to his creditor in the act of mort-gage that he owned and hypothecated to him, for the reason that a nnortgage is a quasi alienation.

' The following is a sketch of square No. 455, and upon which are-indicated all the lots in question, viz.:

This sketch shows that lot four, property of plaintiff, adjoins, on the 'east, lot five, property of the defendant; and it is upon those two lots that the houses and other improvements which are in contest are situated — the line of division between them bisecting the house into two nearly equal parts.

It further shows that lot eight, property of the defendant, adjoins, •on the east, the fractional portion of lot nine, and on the north the fractional portion of lot eleven, property of the plaintiff; and it is •upon these three lots that some of the improvements which are in contest are situated — the aforesaid improvements on lot eight extending over on lots nine and eleven only a little way.

The following is the description of the property as it is given in the authentic act of mortgage from William F. Fullham to Harry H. Hall, executor of the estate of McCan, bearing date June 5th, 1895, viz.:

“3d. — -‘Two certain lots of ground, together with the improvements “ thereon, and the rights, ways, privileges and advantages, thereunto “ belonging, or in anywise appertaining, situated in the Sixth District “ of this city, in square 455, bounded by Baronne, Dryades, Berlin “ and Napoleon avenue, said lots being designated by the Nos. 5 and “ 6, and adjoin each other, measuring, each, 30 feet front on Napo- “ leon avenue, by 120 feet in depth. Being the same property acquired “ by the mortgagor herein on the 19th of February, 1891.’ ”

-v * • -x- -x- * * *

“4th. — ‘Two certain lots of ground, together with the buildings and improvements thereon, and the rights, ways, privileges and advantages thereto belonging, or in anywise appertaining, situated in the “ Sixth District of this city, in square No. 455, formerly No. 75, ■“ bounded by Napoleon avenue, Berlin, Dryades and Baronne streets, “designated by the Nos. 7 and 8, which said lots adjoin each other, “ and measure, each, thirty feet front, on Napoleon avenue, by a “ depth of 120 feet between parallel lines. All as per private sketch attached to an act of mortgage granted by the said W. F. Fullham, “ executor of the estate of D. C. and H. 0. McCan, as per act passed “ before me, notary. Being the same property acquired by the mort- “ gagor herein on April 29th, 1892.’ ”

The act of mortgage contains the following additional stipulation upon vdiich counsel for the defendant places strong reliance, viz.: “The said mortgagor further binds himself to keep the buildings “ on the above described property constantly insured against loss by by fire, and to transfer such insurancé to the mortgagee, or to any “ other holder cr holders of above described note up to the full amount “of such note. Said mortgagor hereby authorizing said mortgagee,- ■“ or any holder or holders of above described note, to cause said insurance to be effected on his default, at a premium not exceeding.. “ two per cent.’’

The certificate of mortgages shows that the mortgage which Eullham granted on lot four, in favor of McQuade, was for the sum of $900, bears date April 16th, 1893, and was recorded on the same date in the book of mortgages — the act itself not having been offered in evidence.

In the act of sale from Eullham to the plaintiff, of date October 10th, 1896, there is a clause to the effect that “said purchaser assumes- the mortgage for $900, * * granted by said vendor in favor “ of M. McQuade, * * * as per act passed before W. H. Gurley, “ notary public, on April 6th, 1894, bearing on said lot No. 4; and the- “ said purchaser hereby assumes the said act of mortgage, and binds- “ himself to pay the note secured by said mortgage in the place and “ stead, and to the acquittance of said vendor, as a part of said pur- “ chase price as aforesaid, etc.”

' But the said mortgagee, McQuade, did not make himself a party to that act of mortgage, or in any manner assent to said assumption, or release Eullham from the payment to him of the debt, which is thereby secured; and he is neither a party nor a privy to this suit.

The plaintiff having purchased the aforesaid property from the. mortgagor, Eullham, and assumed to pay off his mortgage indebtedness as part of the purchase price, is not entitled to assert or claim the-benefit, or champion the right of his creditor, McQuade; and particularly as against another mortgage creditor of his vendor, or asassignee of the rights of such creditor — that is to say, of the estate of McOan, or the defendant.

When the plaintiff purchased the aforesaid property he acquired the right and title of Eullham, his vendor, just as it was, and nothing more; and the rights of the defendant had been fixed and established by the sheriff’s adjudication fifteen days previous -thereto.

The principal question is, therefore, what did the defendant acquire-by such adjudication, and not what the common debtor, Eullham, thereafter sought to convey to’the plaintiff; for it is quite evident that, the plaintiff has no better right to contest the defendant’s title, thanEullham, the common author and mortgagor, woud have, were he the-plaintiff in his stead.

The following is a summary of the reasons for judgment which weraassigned by our learned brother of the District Court, viz.:

That when plaintiff was owner of all of the aforesaid lots, he erected two large residences, or mansion houses thereon; one of them was built upon lot five, but extended over lot four to the extent of twelve or fifteen feet; and another was built upon lot eight, but extended over the narrow strip of ground lying between it and fractional lot nine, to the extent of six or eight feet.

That it is evident that said buildings were intended to be permanent; and that same can not be divided or removed, without serious loss.

“That the legal deduction is, that, to the extent by which said “ houses extend over, on to lot four (the one), and over and upon the “ fractional strip between lot eight and fractional lot nine (the other) “ the owner of all these lots of ground established a servitude; upon “ said lot four, and upon said narrow strip or fractional lot nine, in- “ tended to exist as long as said two houses remain, but without the “ intention to alienate permanently the title to any part of the ground “ itself.”

He was satisfied that it was not Fulham’s intention toj in any way, alienate lot four, but that he subjected same to a servitude in favor of the adjoining lot five by erecting expensive and elaborate buildings on the latter which extended over and upon the former; and that, equally so, did he create and establish a like servitude on fractional lots nine and eleven.

He further expressed himself satisfied that Fulham did, “by the “ destinations made by him, when owner of the whole, establish thé “ servitude of use and habitation upon the lot four (4) and upon the “ narrow strip between lot eight (8) and fractional lot nine (9) to the “ extent that the house erected on lot five (5) encroaches and stands “ upon lot four (4); and, to a like extent, that the house on lot eight “ (8) encroaches and stands over upon said narrow strip between lots “ eight (8) and fractional lot nine (9) which must be respected and “ recognized, so long as said parts of said respective houses remain, or “,stand thereon, but no longer; so, that, if at any time, said houses “ should be removed, or cease to stand, or be destroyed, the servitude “ of use and habitation would end, and plaintiff’s title would be abso- “ lute, i. e., embrace not only the fee, but the use, usufruct and absolute “ enjoyment, as well, in all respects, as if said servitude of use and “ habitation had never been established.

“This servitude it seems to me, is commensurate only with the “ limits of said two dwelling-houses. It goes not one single inch be- ■“ yond. It follows the exact outer lines of the said encroachments, beyond the limits of lots five (8) and eight (8) respectively, over on to lot four (4) and on to said narrow strip between lot eight (8) and “fractional lot nine (9).

“It does not take away any of the soil of lot four (4), or of said “ strip between lot eight (8) and fractional lot nine (9), except that “ directly under said two houses; or, in other words, the ground upon '“which they stand, and this servitude is limited in its duration to “the time during which said encroaching parts of said two houses “ shall stand or remain, and no longer.

“Subject to this limited servitude of use and habitation, the plaintiff “ is the owner of all tlxe properties described in his petition, and the “ act of sale annexed thereto, of date October 10th, 1896.”

With regard to the defendant’s claim of a continuous and apparent servitude, that is to say, a destination du pere de familia, the judge .said:

“The destination du pera da famille, is equivalent to title, but only “ to the extent which it fixes, with the intention of permanency. In “ this case, under all the proof, oral and documentary, the title which “ I find by the destination of Mr. Fulham when the owner of all the “lots, is the title to the servitude of habitation and use within the limits I have stated; a title equal to the partial and temporary “ alienation,- but not to a permanent transfer, or alienation of the “ ground or soil itself, the fee to the part of the ground thus subjected “ to the said servitude, remaining still in Fulham until he transferred “ it to the plaintiff.”

Considering all the foregoing contentions, and the evidence applicable thereto, it seems clear that the defendant acquired by the sheriff’s sale made under a writ of seizure and sale in the foreclosure of special mortgage, lots five, six, seven and eight, “together with the “improvements thereon, and the rights, ways, privileges and advan- “ tages thereunto belonging, or in any manner appertaining, etc.” , That at the time the mortgage was consented by Fulham, the buildings and improvements had been only partially completed, and the ■money loaned him by the mortagee was employed in the completion •and equipment thereof.

The mortgagor being- at the time owner and proprietor of not only ■the aforesaid lots which were adjudicated to the defendant, but of those claimed by the plaintiff, as well, had, theretofore, designated them by numbers upon a map, plan or sketch he had caused to be made for his own use and convenience, and had built fences and other enclosures around them; but the fact appears to be, that when the buildings and edifices had been completely constructed, they actually extended over and beyond the line of division between lots five and four upon the one side, and over and beyond the line of division between lots eight and nine, upon the other side, as said two division lines are designated upon the aforesaid sketch.

That with the apparent assent of both mortgagor and mortgagee, the buildings were leased, occupied, mortgaged and sold as parts of •said lots five, six, seven and eight, and without any reference to their encroachment upon the aforesaid lots four, on the one side, and nine ■on ihe other; and without objection or protest of the mortgagor, the defendant, as adjudieatee, entered into possession, and has continued to remain in possession thereof as owner. , That the record discloses that the only protest against sale being made of improvements, came from MeQuade, as a first mortgage creditor, for $900.00; but it, also appears, that he is neither a party nor privy to this suit, and that his protest cannot, be' in any way considered or passed upon — but his rights, whatever they may be, must be fully reserved.

That some fifteen days subsequent to the aforesaid adjudication to the defendant — :at a time so recent, that all of the foregoing facts must have been fresh in the minds of all the participants — the mortgagor ■•and seized debtor, Fulham, made a voluntary sale to the plaintiff, a citizen of Arkansas, of lot four, and a small fraction of lot nine adja•cent to lot eight; and in the deed of sale, he purported to convey all the buildings and improvements thereon situated, and he, soon after-wards, brought this suit.

In our opinion, the plaintiff’s demand is not well founded in either ■law or equity; and has no better right or stronger claim that Fulham, his vendor, would have — he being the common author of both titles.

The plaintiff and appellee, having failed to make answer, to the appeal, and not having, by formal plea in this court, requested any ■amendment to the judgment appealed from, the only question left for our consideration is, whether we shall favorably entertain the amendment requested by defendant’s and appellant’s counsel, or affirm the judgment as it was pronounced.

His contention is that Fulham, when he was owner of all the lots in controversy, gave to them a destination by the buildings and edifices ■ he constructed thereon, which was equivalent to a title, with respect to such apparent and continuous servitudes; and which continued to ■ exist thereon after the sheriff’s sale to the defendant, in his favor.

And, that, on account of Fulham having created and maintained, upon said lot four on the one side, and lot nine on the other, the aforesaid continuous and apparent servitudes, which is a destination equivalent to title, he was equally without right, as without power, to make to the plaintiff a title thereto under which he could evict and dispossess the defendant, as the purchaser thereof.

A collation and analysis of the articles of the code on this subject will prove advantageous and instructive, and the following articles thereof are pertinent and controlling:

“Continuous servitudes are those whose use is or may be continual “ without the act of man.

“Such are acqueduets, drain, view and the like.” Rev. Civil Code, 727.

“Again, servitudes are. either visible and apparent, or non-ap- “ parent.

“Apparent servitudes are such as are to be perceivable by exterior “ works; such as a door, a window, an aequeduct.” Rev. Civil Code 728. '

“Continuous and apparent servitudes may be acquired by title, or-“by a possession of ten years.” Rev. Civil Code 765.

“The destination made by the owner is equivalent to title with. “ respect to continuous servitudes.

“Ry destination is meant, the relation established between two im- “ movables by the owner of both, which would constitute a servitude, “ if the two immovables belonged to two different owners.” Rev. Civil Code, 767.

“Such intention is never presumed, till it has been proven, that both- “ estates, now divided, have belonged to the same owner, and that itt “ was by him that the things have been placed in the situation from “ which the servitudes result.” Rev. Civil Code, 768.

“If the owner of two estates, between which there exists an apparent “ sign of servitude, sell one of those estates, and if the deed of sale “ be silent respecting the servitude, the same shall continue to exist “ actively or passively in favor of, or upon the estate which has been. “ sold.” Rev. Civil Code, 769.

These articles seem to have exact application to the question under consideration in the following particulars: (1) that the buildings-

and edifices constitute a continuous and apparent servitude upon the lots of land; (2) that they were established thereon by Fulham when he was the owner of all of them; (3) that the buildings and edifices were partially constructed when he executed a mortgage thereon for a loan of money to be used in the completion of same; (4) that they were completed and occupied at the time the property was adjudicated, to the defendant; (5) and their situation and condition were exactly the same when the plaintiff bought from a common author.

Unfortunately, the adjudications upon this subject ar§ not very numerous, but this may possibly be referable to the fact, that the precepts of the code are so ample.

Our attention has been particularly invited by plaintiff's counsel to the opinion of our predecessors in Murrell vs. Fowler, 3rd Ann., 165,. and to which they refer as “the only case, at all- similar to this that “ they have been able to find.”

The facts of that case are as follows, viz:

The plaintiff and defendant were the owners of two adjoining city lots, which they had purchased at the same public sale.

On the plaintiff’s lot there was a three-story brick building, but on that of the defendant, there was only a temporary structure. Subsequently to the sale, the defendant erected a brick building on his lot, and made use of the contiguous wall of the plaintiff to rest it against, assuming same to have been a party wall, i. e., one in common.

Denying this theory, plaintiff brought suit against the defendant for re-imbursement to the amount of one-half of the value of the Avail, and of the ground upon which same was built. C. C. 684.

The opinion says:

“The defence is that, by the destination of the original proprietor, “ as well as by presumption of law, the wall is what is called a common “ wall between the proprietors of the adjacent lots.”

But the court observed, that “we think any such presumption is re- “ pelled by the situation and condition'of the property at the time it “ was occupied by the original owner.

“The wall is entirely on the land of the plaintiff. It is two bricks- “ thick in the first story, and one and a-half in the second and third; “the foundation, however, projecting seventeen inches at its lase “ under the surface of th'e defendants’ lot.”

Hence it was, that the court rejected the defendants’ claim that plaintiff’s adjacent wall, was a wall in common, by reason of an alleged servitude which the common author of both the plaintiff and defendant had imposed upon the part defendant bought.

The reason for the court so holding is clear, and it is that no part •of the building was on defendants’ lot, and the seventeen inch base of the wall was under the surface of the defendants’ lot.

Thereupon, the court very justly observed, viz:

“The use which the owner- has established on one part of his “ property in favor of another part, is equivalent to a title with respect “ to perpetual and apparent servitudes which may be acquired by “ title; and in relation to those servitudes, permanence of destination, “ and the caractere de perpeiuite are essential requisites of their estab- “ lishment. Durel vs. Boisblanc, 1 An. Rep., 408.

“The building which was upon the defendants’ lot at the time of “the purchase, we think, under the evidence, did not possess these “ requisites, and had not the effect of creating the destination du pere “ de famille, even supposing such an effect were possible under the “ law.”

In Durel vs. Boisblanc, cited supra, two adjoining city lots, with •buildings on each, were sold at succession sale, described as having thirty feet front each.' One of the buildings covered the greater part of the front, and the other covered the residence only; and the lots were adjudicated to two different purchasers. No mention was made of any servitude, either in the advertisement, or in the act of sale.

On that state of facts, it was held that the servitude of light and way being apparent, and necessary for the occupation and use of one of the dwellings, the purchaser of the lot on which they are established must have known of their existence and is bound to take the lot subject thereto. Aliier, were the purchaser ignorant of the servitudes, .and they such as to render it probable that the purchaser would not have bought the property had he known of their existence. •

And, thereupon, the court said:

“The servitudes of way and of light are apparent, and necessary “ for the occupation and use as a dwelling-house, of the property purM chased by Boisblanc, and as such, are of a permanent character, and “ can, in no sense, be said to have been concealed from Bivereau, the “purchaser of the contiguous estate.”

Applying the-principles announced in those cases to the facts of this case, it is manifest that they are applicable to the latter with far greater force. In this case the house itself was built upon both lots-four and five in one instance, and on lots eight and nine in the other.. They were built by the common author of both plaintiff and defendant when he owned all of the lots.

Lots five and eight were mortgaged with all of the buildings and-improvements, and subsequently sold to the defendant.

Fractional lots nine and eleven were sold to the plaintiff, fifteen days subsequently, by the common author and mortgagor, both of whom had full knowledge of defendant’s previous purchase and possession of’ all of said buildings and improvements, and the rents and revenues of which he demands in this suit.

The buildings are shown by the evidence to be large, commodious and expensive, and hence, they are, in the very nature of things, permanent and apparent.

It is clear that the plaintiff willingly and voluntarily bought the property, well knowing its extent and situation.

In Gottschalk vs. DeSantos, 12th Ann., 473, the court employs this very clear statement, relative to this class of servitudes, viz:

“What other use could he have had for it then, except for the use “and convenience of the whole or a part of his other three lots?

“This is not called a servitude, but a ‘destination du pere de fam- illef or the use which the owner has intentionally established on a “ particular part of his property in favor of another part, and which “ is equal to a title with respect to perpetual and apparent servitudes- “ thereon; and by this destination du pere de famille is meant the dis- “ position which the owner of two or more estates has made for their “respective use. O. C. 645, 763.”

The code, in terms, declares that by the destination which is equivalent to title, is “meant the relation established between two immov- “ ables by the owner of both, which would constitute a servitude if the “two immovables belonged to two different owners. R. 0., 767.”

■ In the previous case, the court very appropriately- remarked, viz:

“As this servitude is an abandonment of property, an alienation “ equal to title, it must not then be intended only, or partially estab- “ lished, but must be perfected in such manner that it can be useful to “the adjacent lots.”

In Lavillebeuvre vs. Cosgrove, 13 Ann., 323, this question was treated and decided by our predecessors, and we regard their opinion .as quite appropriate to the instant case — it having- reference to an opening- in a party wall.

The court say: “But the defendant urges his right to the opening “ in question, upon the ground that the wall now held in common be- ■“ tween himself and the plaintiff, was built by a person who was at the “ time, the owner of lots on both sides of the wallj that the opening “ or window was made in the wall by the said owner at the time of building; and -that this act of original proprietor of both properties, " is equivalent' to title -creating a servitude upon the property now “ belonging to plaintiff, for the benefit of that belonging to defeud- ■“ ant.” (Our italics.)

The facts stated by the court which are pertinent to this case are as follows, viz:

That the two lots, with their improvements, were sold under execution, with the aforesaid party-wall existing between the buildings. That the adjudieatee subsequently sold the two lots and their respective improvements to two different vendees.

The court then say: “While the property now held by defendant “belonged to his vendor, Parish, and about six months before the sale “ from Parish to defendant, of his own authority, closed the window “ which had thus existed in the partition wall between himself and “ Parish from the time of its first erection, by nailing heavy planks “ across the Venetian blinds of the window on the outside. Things r‘ were in this state when defendant purchased the property from Par“ish; and defendant having re-opened the window, plaintiff brings this action to have the same closed, etc.”

On this state of' facts, the court said:

“There is no doubt that the building of this division wall with -the “ window, by Waldon, who was the owner of the land on both sides of “ the wall, constituted, what is called in the French text of Articles “ 645 and 768 of the Code, (the latter article copied from Article 692 “of the Code Napoleon), a ’desination du pere de famille, which by “ Articles 763, 764 and 765, was equivalent to a title creating a servi- hide, as soon as a division of ownership of the properties took place “ by the sale from the City Bank to Parish.”

This claim was resisted by the adjoining proprietor on the ground that the window had been closed before the sale to the defendant, and, thereby, the servitude of light had been extinguished before he bought, but this was denied by the court.

“This argument,” they say, “cannot meet with our sanction; Oos- “ grove acquired from Parish by his title, a lot of ground, ‘together ■“ with all the buildings and improvements thereon, rights, privileges “ and appurtenances thereunto belonging or in any wise appertain- " ing.’ . Parish had acquired from the City Bank, by identically the “ same description. The servitude of light existed, as we have said, in favor of Parish. It was transmitted to Cosgrove, unless it had “ been lost in Parish’s hands. It is pretended that it was so lost by the “ act of plaintiff, barring up the window.”

This proposition is denied by the court, saying:

“The erection of works, contrary to the servitude, it is true, has “the effect of extinguishing the servitude. But this effect follows, “ according to Ax*ticle 816, only when the owner of the estate to which w the servitude is due, has given an express permission of consent to “ the erection of such works either verbally or in writing, which is not “pretended in the present case.”

That decision seems particularly pertinent to this case, because it dealt with an exactly similar question, and interpreted the same articles of the code which we have quoted and analyzed.

The foregoing decisions are in exact keeping with those of an early period in our jurisprudence.

For instance, it was said in Barton vs. Kirkman, 5 R., 16.

“The plaintiff has shown that the whole lot belonged to the same “ proprietor, and that the things have been placed by her in the situa- “ tion from which the servitude by him claimed results. It is clear “that the servitude is within the provisions of Articles 763 and 764 of “the Civil Code, and that the defendant by whom it was established, has now no power to destroy it. The- use, says the law, which the “ owner has intentionally established on a particular part of his n property in favor of another part, is equal to a title, with respect to "perpetual and apparent servitudes thereon.” (Our italics).

In Alexander vs. Boghel, 4 La., 312, the court stated the proposition of the defendant in the instant ease very tersely, and in a few well chosen words, as follows, viz:

“When the proprietor of the two lots sold (one) to the defendant, “ and remained silent, that which he retained was burthen ed with the * service. Tie could not have resisted the exercise of the right; and “ it is almost unnecessary to say, that he could not transfer to another ' ” that which he had not himself "

All of the foregoing authorities are perfectly uniform and consistent, and support the proposition for which defendant contends.

The ease of Ker vs. Evershed, 41st Ann., 15, to which we have been, referred, possesses some of the features of the instant case, yet, in. other respects it was dissimilar.

That suit was brought by the administrator and certain creditors-of the deceased mortgagor, Ker, holding mortgages on lots adjacent to the property acquired by the defendant, for the purpose of restricting the defendant’s purchase at sheriff’s sale to the property as it was-originally bounded and defined by the common mortgagor — their contention being that the defendant, as adjudicatee, at judicial sale, had taken possession of more ground than she was entitled to, and of buildings and edifices which were not covered by her act of mortgage, in the foreclosure of which she bought. Stated in more general terms,, the object of that suit was to rectify the sheriff’s title and dispossess the defendant of the buildings and edifices she claimed to have bought.

But this court rejected plaintiff’s demands, and affirmed the validity of the defendant’s title.

From the foregoing authorities, we are of opinion that the manifest destination which Fulham .gave those several lots, at a time when he owned all of them, by the erection of the large and expensive dwellingstliereon, was a consecration of the property to that and no other use or purpose, and an alienation thereof, equivalent to a continuous servitude thereupon; and that same constituted a destination du pere do famille in the sense of the code, which inhered in the title which was conveyed to the defendant by the sheriff’s adjudication, under the foreclosure of the McCan mortgage which embraced the lots and their improvements.

The result of this conclusion is, that the defendant is entitled to have a continuous servitude on the land upon which the buildings stand, as well as upon the buildings and improvements themselves.

It is therefore ordered and decreed that the judgment appealed from be so amended as to decree the defendant to have a eontinuous servitude upon the land upon which the buildings and improvements stand, as well as upon the buildings themselves; and .that as thus-amended, the same be affirmed at the cost of plaintiff in both courts— all the rights of the first mortgagee, McQuade, being fully reserved.

On Application for Rehearing.

Breaux, J.

In the court below there was judgment in favor of the plaintiff for all the property that he claimed, subjecting same, in the particulars mentioned, to a servitude of use and habitation and of limited duration only, and taxed all costs against the defendant; in our opinion, we recognized the defendant’s servitude upon the land' occupied by the buildings and upon the buildings themselves, and decreed same to be apparent and continuous.

Having amended the judgment in this particular, our decree affirms' the judgment appealed from in all other respects, and taxed the plaintiff with all costs of both courts.

The application for rehearing rests upon the following grounds, to-wit:

1. That the court does not, either in its opinion or decree, recognize and pass upon the main demand of plaintiff, the lots of ground described in the plaintiff’s petition.

2. That the opinion and decree is an affirmance of the opinion and judgment of the District Court, yet the plaintiff who obtained judgment for his property in the District Court, though denied a portion of the claim set up by him, is condemned to pay the costs.

3. That that portion of the decree proposing to amend the judgment of the District Court is surplusage, and though decreeing an amendment in terms, in legal effect and intendment, does not amend the decree of the District Court, only and except as to the question of costs.

4. And because if the decree of the court, which is not in conson- ■ anee with the reasoning of the opinion, be given the effect which the-words will sustain, the plaintiff, Woodcock, is deprived of real property not affected by the servitude, simply because the defendant’s right of servitude is recognized on a portion of the property; that is to say, the decree of the court is open to the interpretation that the.-court has given Baldwin, the defendant, a judgment recognizing a: servitude on the whole of lot No. 4 (four), because by destination du pere de famille a small portion of the lot was destined to a servitude of' support of a house on another lot.

Feeling assured, by the terms used in the decree, that the court did' not contemplate or intend such injustice, the plaintiff moves and prays this Honorable Court to grant a rehearing and to amend the decree, and to recognize and confirm the plaintiff’s rights as owner of the. property described in his petition, and to limit the servitude which the court recognizes simply and only to the extent of its user.

Again, in the course of their argument, counsel say:

i -“From the reasoning of the opinion of this Honorable Court, we understand that the purpose and intention of the court was to amend the judgment and decree of the District Court simply and only to the extent of removing the limit upon the servitude; that is to say, that the District Judge had limited the life of the servitude to the life of the buildings, but that your Honors are of opinion that the servitude had been acquired in perpetuity and that a servitude had. been established on lot 4 (four) for the use of the house and to the extent that it was used for all time.

“And we cannot understand or believe that your Honors had intended to decree, or did decree, that the whole of lot four (4) was by this destination acquired by the owner of lot (5) in fee simple.”

It was not the purpose or intention of either our opinion or decree to recognize defendant as having acquired servitude upon the whole .of lot four (4) to which plaintiff claimed title; on the contrary, it was, in express terms, limited to that portion only, of lot four (4) which ■was occupied by defendant’s buildings.

At page six (6) of our original opinion will be found the judgment of the District Court, reproduced in its entirety; and by our decree same is affirmed, unqualifiedly, except in one particular stated supra.

This is all the explanation that counsel of plaintiff requires, and it satisfies them in all respects except as to costs; and in that respect we think the plaintiff is entitled to have the original decree amended so as to leave the judgment of the lower court in respect to costs un- . disturbed — -only taxing him with the costs of appeal.

It is therefore ordered, adjudged and decreed that our original . decree be so amended as to tax the plaintiff with the costs of appeal .alone; and that as thus altered, the same remains undisturbed.

.Rehearing refused.

Mr. Justice Monroe takes no part as the case was reached and submitted prior to his appointment to this bench.


author: Breaux, J. Watkins, J.

text:
    No. 12,929.
    Charles F. Jenkins vs. Maginnis Cotton Mills.
    Syllabus.
    •Damages are claimed by plaintiff on the ground of defendant’s negligence.
    Plaintiff, a card grinder, bad never before alone undertaken to remove flats on the endless chain of a carding machine. He was sent by the overseer to do this work, and was severely injured while at work.
    There were safe ways, two at least, of removing the flats. They were the usual ways followed in removing them. Plaintiff chose the third manner of removing these flats, a manner unusual and very hazardous, in view of the fact, that the day before the accident, he, under the orders of the overseer, had removed the back plate and had stripped a fast revolving cylinder of its covering.
    Plaintiff, having chosen the dangerous manner of removing the flats, under the circumstances, defendant is not responsible in damages.
    An employe of mature years employed in a line of work who had assisted in another line of work, and is removed from the regular line and set to work on the latter without the presence and direction as previously of the over-, seer, and is injured while at work because of the unusual manner followed by him in doing the work, is without right to damages.
    'The danger was not unknown to the employee.' It was plainly visible.
    While an employer is expected to provide a safe place for his workmen and safe machinery, the employee should not unnecessarily expose himself to a visible danger.
    The two cases cited by plaintiff- require that employers shall exercise due care, and they were held responsible, as it appeared that the employee had no previous knowledge or acquaintance with the defective machinery causing the accident.
    Lack of supervision of the factory (if there was such a lack) was not the proximate cause of the accident.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Clegg & Quintero for Plaintiff and Appellant.

      Sami. L. Gilmore, for Defendant and Appellee.
    Argued and submitted March 9, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused, reasons assigned, May 1, 1899.
   .On the Application for Behearing by Watkins, J.

The opinion of the court was delivered by

Breaux, J.

This, was an action by plaintiff, sounding in damages,, for the loss of a hand and forearm, while in the employment of defendant.

The following is a summary of the statement of plaintiff’s petition, and of defendant’s answer:

The petition sets forth that plaintiff was working at the MaginnisCotton Mills as a card grinder; and that, under the overseer’s order,, out of his usual employment, he undertook to “mill a ring” in the carding machine, which machine was new, unusual, and dangerous, and that the work undertaken by him, under an order, as just stated, was the work of an overseer, as it required an expert workman in that line of work. He alleges further that by the negligence of the overseer, a fly-plate, which protected the operatives on the card engine,, had been removed. That, in removing and in laying down flats, which he had been set to do by order of the overseer, his hand was caught and destroyed; that he suffered great pain in consequence.

Plaintiff complains also, of the lack of supervision in defendant’s-factory.

He claims damages in the sum of .ten,thousand dollars.

Defendant filed a plea of general denial, and specially denied that plaintiff suffered injury through its negligence or that of its overseers, agents or servants. It also denies that plaintiff was required by them to do work out of plaintiff’s usual employment. It denies any act of negligence on its part, and specially alleges, in answer to plaintiff’s charge of lack of supervision, that it had overseers enough for all purposes; and, further, that its machinery is the latest, safest and' of most-improved patents.

The following is a summary of the facts:

Plaintiff’s hand was caught between the cylinder and the flats of a-card machine which was running at the time, and it (the hand) together with the forearm, was mangled and lacerated, resulting in his losing his hand and forearm.

The machine by which plaintiff was injured was a Brooks-Doxey revolving flat card machine.

Grinding the card was the usual employment of plaintiff.

The occupation of plaintiff was not dangerous, as it consisted m -.sharpening the steel points of a card, and- in repairing and resetting the card when it required repairing and resetting.

As to how the accident happened, plaintiff testified as follows:

“I was employed in the Maginnis Cotton Mills as a card grinder. 'On Wednesday evening, Lucas, the overseer, said he wanted to £mill the ring’ down on this card. We sat the milling machine on the card. ■Some of the flats of the machine had been taken off the evening before, the day preceding the accident. He directed me to let him know' when the flats he desired to take up, would be up, and at a proper place in order to take them off himself.” In the morning of -the day of the •accident, the witness called on the overseer and said to him that the •flats were up and in the proper place for removal. He replied that he was quite busy, and directed plaintiff to go back to the machine and take off the flats himself at the place he indicated. Whereupon, plaintiff returned, and after two of the flats had been removed, his arm •was caught between the flats and the cylinder. Plaintiff swears that '“milling the ring” and “sétting the flats” was the overseer’s work.

lie also said that he had been working three years and a half at the •defendant’s works, and since about two years, he ground the Brooks and Doxey cards. That he had nothing to do under his contract of •employment with anything else. He also stated that he was standing •at the time of the accident, on the outside of the frame of the machine.

It apears that the day preceding the accident, the fly plates had been removed by plaintiff, under the immediate direction of the overseer.

Ward, an ex-overseer of defendant, who was no longer in the service •of the cotton mills on the day of the accident, testified that the removal of the plate rendered the machine dangerous; that it is not ■otherwise dangerous.

We are informed that in order to gauge the machine it is necessary to remove the flats and that these flats can be removed when the ma■chine is in operation, as well as when it is still.

This ex-overseer, Ward, testified that whilst employed by defendant •company, he did the setting of the milling machine himself; that the flats, under his direction, were taken off on the side of the mill, and usually plaintiff took off the flats for him, or he took them -off himself, but that he was around while they were being taken off; that he Always took them off while the machine was in motion.

“Milling a card,” lie said, was the work of an expert mechanic. A man not instructed in it could not do it.

Another witness, Charles Andell, a “card grinder,” as was plaintiff, who was at one time employed at the Maginnis Cotton Mills, swears that he also sometimes took off the flats from the cylinder, but that he did not help to put in. the mill apparatus, machinery, or to adjust it; that he took off the flats when the machine was stopped.

Richard, the superintendent in charge of the operations of the factory, swore that the one “milling the ring,” or “setting the ring,” cannot be hurt at all, if he bo careful and cautious.

This witness testified that there is no danger in taking off the flats; that they are turned by hand by a proper appliance provided for the purpose; that plaintiff knew of this appliance. He also testified that while it is possible to take off the flats when the machine is running, he did not consider it safe either for the operator or the card; and that in removing a flat ordinarily, to do so safely, more especially if the machine be running, the operator or person directed to remove the flat should have an assistant; the removal should be done from the sidd- and not from the back of the machine; that it would be always dangerous to undertake, as did the plaintiff, to remove it from the back, without assistance, if -the mill was in operation.

As relates to the fly-plate, or hack plate, which plaintiff asserts had been removed, the witness said that it is a plate at the back of the machine, placed there to regulate the amount of waste made by the card.

He also said that plaintiff had an assistant whenever he wanted to take off a flat. All ho had to do was to- give the order to- get the assistant.

The superintendent also testified that plaintiff was’ a second hand, a“head grinder,” a “sub-overseer;” that there was a superintendent at the factory who had control of the entire force; after him, six overseers, each in charge of a department. The next are the second hand or sub-officers; that in the room in which plaintiff worked, there were two second hands. One was the plaintiff, who> had supervision of the-card, and the other had charge of the frame, and under them were the ordinary employees who had no distinctive rank.

Lucas, who had charge as overseer when the accident happened, and' assisted plaintiff in releasing himself from the grasp of the machine, swears that plaintiff was inside of the card between the frame and the-cylinder. He also swears that employees should not take off flats while the machine is running; that plaintiff had all the assistance he wanted, and that he could have called any one to take off the flats at any time.

He testified in the same line as the superintendent.

Another witness, Passmere, testified that plaintiff was not at the side of the machine at the time of the accident, but at the back of the machine; and -that if plaintiff had asked his assistance in talcing off the flats, he certainly would have given it; that he considered the machine very dangerous in the condition in which it was on the day of the accident and the day before, but that there would have been no danger if the card had been stopped before attempting to remove the flats; that it was the duty of the overseer to have the fly-plate put on, and that if he had ordered them put on, no one would have gotten hurt.

The remaining facts are embodied in our opinion.

Judgment was pronounced for defendant in the District Court. Plaintiff appeals.

The contention is, as we gather from the record, that the failure of the overseer to replace the 'fly-plate that had been taken off .the day before the accident; the failure of the overseer to give due warning just prior to the accident, at the time that he directed plaintiff to repair to the card machine and take off the flats; and the failure of the defendant to provide for more complete supervision of the factory by employing another overseer in the place of one who had left a few days before, were the proximate causes of the injury.

On the other hand, the defendant contends fhat the fly-plate had been removed by the plaintiff himself, and that it was his duty to return the fly-plate where it belonged; that special notice of the overseer was not to be bxpected, as the plaintiff had been employed in the factory for more than two years as “head grinder,” and that he must have known how to perform the work as directed, without exposing himself as he did; that posted notice was given him not to touch machinery while' in motion; that, as “head grinder,” he could have called an as-» sistant and performed the work without exposing himself, or that he might have stopped the machine.

Whether plaintiff was doing expert work, out of the scope of his employment, presents one of the issues before us for decision.

It is evident, in our opinion, that the “overseer” and the “head .grinder,” (the position which the .plaintiff held), had respective duties to perform. There is evidence of record going- to show that it was part of the work of the “head grinder” to fake off the flats, while, on the other hand, there is evidence to the contrary. The evidence upon this point was not as full as it might have been.

The superintendent of defendant’s mill swore that it is the part of the head grinder’s work to “mill the ring,” and that his duty is also to “grind the card,” and “remove the flats.” While this is denied by -other witnesses, the superintendent’s testimony does not stand alone. 'Taking into account the whole evidence' on this point, we are of the «pinion that this work was usually done by the overseer, assisted by the “head grinder,” and that the latter was never left to do this work alone. We infer the orders of the overseer, just before the accident, were given irom his office, instead, as theretofore, at the card machine itself, he intending, after the removal of the flats by plaintiff, to go to -the machine himself and verify the gauge, or gauge the machine him.self.

There were three ways, it appears, of carrying out the orders of the ■overseer; one was to call an assistant, stop the machine by transfer•ring the belt from a fast to a loose pulley; an easy matter, it appears. In this there was no risk. The superintendent said that this was the usual way, or the rule at defendant’s mill. After the machine is stopped with an appliance, by hands, the endless chain of flats is turned until the flats to be removed are on top of the chain of flats at a place where they are usually removed. There was no reason, as •we appreciate the evidence, not to stop the machine. The stopping of the “milling of the ring” was of no moment, besides stopping would Rave been unavoidable to gauge, or set the cards, a work which was to 'be done by the overseer in a few minutes/

Another way is to stand on the side of the machine; the operative •on one side, and his assistant on the other. We do not find, from the evidence, that there was any danger in removing flats save when the fly plate is removed; the back part of the machine is stripped and in •motion. When the machine is in the condition last described, removal ■of the flats from the back is very hazardous.

We have not found that aven skilled mechanics attempt to remove •the flats from the rear of the machine, when the fly-plate is removed -and the machine is stripped. In order to ascertain if ever mechanics ■removed flats when the machine is stripped and in operation, we road the record with close and painstaking care, and did not find that such risks were taken. The record does not disclose why the unsafe manner of removing the flats was resorted to.

We have dwelt upon this point of the case — it has given us much -concern — and several times we thought that plaintiff should recover •damages if it appeared by the evidence that in meeting with an accident, he had only failed in exercising the skill exercised by others whom he had seen in the act of removing flats, or with whom he him.self had removed flats. We have not found it possible from the record to conclude that he had failed in doing that which he had seen others do, for the method he adopted was not the only, method of removing flats. Not having seen others remove flats from the rear of machines stripped and in motion, he was not lead into believing that he was safe in the attempt. Ilis act is not sustained or defended by any preceding •similar attempt made by any one. There were two methods of removing the flats, entirely safe. Plaintiff chose the third, although no one else ever, so far as the record discloses, made such an attempt; .and, in the second place, the condition of the machine as brought on •by his own manipulation (under the overseer’s order, it is true), was ■entirely unsafe.

The rule applicable has a number of times been declared by the ■courts; it has always been held that it must appear in order to recover •damages, that the employee did not know of the danger, or had no reason to know of the risk to which he was himself exposed.

Wo take it, that when a change is made in a machine, unusual and ■.unknown in the ordinary use of the machine, plaintiff, an employee, called upon to operate the machine, should be notified of the change. If, however, the change is made by the employee himself, under orders, notice of the change is no longer necessary.

The question here arises: Should he have been notified of the increased danger? In the first place, the risk was visible; in the second place, as there were two safe ways of doing the work, each passed by by plaintiff, to adopt the third — an entirely unusual manner of removing flats — we find no warrant in disturbing the judgment.

This court said, in Carey, Tutrix, vs. Sellers, 41st Ann., 300: “To ■maintain an action by a servant against a master, two elements must • concur, viz: fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant.”

We have read with close and.careful attention the cited cases. They do not do away with the rule that by knowledge of danger, a plaintiff accepts the increased risk, and, further, that one is without cause if his injury was proximately caused by his failure to adopt the course which a prudent man would have followed.

Even in the ease of injury to a minor, in a well considered case, the Supreme-Court of New Jersey held: “The danger, if it existed, was-an obvious one. Tho plaintiff was familiar with the machine, and’ knew as well as any one else the danger to be apprehended from working it. The law is entirely settled that under such circumstances the servant takes upon himself the risks incident to the employment, and that no action will lie against the master for injuries to a servant in such cases.” Citing 24th Atlantic, 487; 21 N. E. 717; and 113 Mass., 396. “Nor is the fact that plaintiff was a minor, material. He was 19 years of age — old enough to fully appreciate the danger of operating the machine, and, consequently, took upon himself the risk incident to his employment, the same as a person of mature years.” Citing 12 N. E. 286.

Under the weight of judicial authority, an employer, properly, we think, is expected to concern himself about the safety of the place at which his workmen are employed, and the efficiency and good condition of the machinery placed in their hands.

We have read all the decisions upon the subject we could get, and' have not found one carrying the rule as far as we would have to extend it, should we sustain plaintiff’s demand.

Regarding our own, we carefully considered the cited case of James vs. Lumber Co., 50th Ann. 717, in which we find, quoting from the-syllabus, covering the principles laid down in the decision:

“It is negligence on the part of a foreman to call on one of its employees suddenly to take a dangerous position, without warning him of the risk and hazard of the employment, with which the employee had neither a previous hnowledge or acquaintance.”

In the other cited case, Stucke vs. R. R. Co., 50th Ann. 189, we held in substance, that one cannot bo understood as contracting to take upon himself risks which he neither knows nor suspects.

Here, we have found that the danger was visible, and that plaintiff had been at -Work on the machine of the factory since a number of years, and had, before then, taken off the pieces from the machine,, in a manner not dangerous.

With reference to the lack of supervision, one of the complaints of plaintiff, as we take it, it does not appear that the least fault was found before the accident, regarding the insufficiency of supervision of defendhnt’s works. While it is true that one of the overseers had left a few weeks previous to the accident, and that the remaining overseer in charge of the works had' succeeded to his duties, it does not appear that it was more than the latter could do. Plaintiff did not trace the cause of the accident to the fact that only one overseer had charge, where previously there were two. This would be a most remote cause, and not one for which it is possible to hold defendant liable for damages.

For reasons assigned, the judgment appealed from is affirmed.

Monroe, J., takes no part, as he was not a member of the court when the ease was heard.

On Application for Rehearing.

Watkins, J.

The application is made solely on the ground that the court erred in finding the facts, in certain enumerated particulars, which are stated in the brief of complainant’s counsel, from which we make the following extract, viz:

“And now into court comes the plaintiff, and moves the court to “ grant a rehearing in this case, for the reasons hereafter assigned, “ to-wit:

“1. Because the court has erred in finding the facts in this: It is- “ conceded that the plaintiff, Jenkins, was injured in the defendant’s- “ mill, on the day stated in the petition, while in the performance of a “ duty out of the line of his usual employment, specifically imposed “ upon him at that moment by this special order of his master, and “ under the master’s eye. The specific order was to remove the flats “ from a machine which had been rendered highly dangerous by a “ change in its condition, by the order of the master. The changed “ condition from one of safety to one of danger was known to the “ master.

^The court finds as a matter of fact, that an unsafe manner was- “ resorted to and uses these expressions, namely:

“ ‘We have not found that even skilled mechanics attempt to remove Xl the flats from the rear of the machine when the fly-plate is removed “ and the machine is stripped. In order to ascertain if ever me- “ ehanics removed flats when the machine is stripped and in operation, we read the record with close and painstaking care, and did not find “ that such risks were taken. The record does not disclose why the “ unsafe manner of removing the flats was resorted to.’

“Here the court has overlooked the fact, that, never in the history “ of the mill was it attempted to remove a flat when the card was “ stripped; when the fly-plate was gone. The situation was a new one, never presented to Jenkins before, one created by the master, “ the overseer, Lucas, existing within his view, under his immediate “ supervision and control, and yet he ordered 3 enldns to perform an '“ act out of his line of duty in connection with this machinery in this “ novel situation,

“2. Because the court finds that there was adequate supervision “ of the mill when every fact in the record points to a different con- “ elusion, and the whole record is a mathematical demonstration to “ the contrary.

“3. Because the court finds that there were safe ways of removing “ the flats.

“There could be no safe way with the machinery in the condition “in which it was when Jenkins was sent to work upon it.

“4. Because it was non sequitur that if Jenkins stripped the ma- “ chine the day before, under the orders of the overseer, and knew “that its condition had been'changed; that, therefore, afterward, in “ obedience to any order that the overseer might give, Jenkins as- “ sumed any and all risks.

“Wherefore, the plaintiff now humbly prays" that this Honorable “ Court set aside its decree, and grant him a rehearing, and that the “ fowner decree be reversed, and that there be judgment for the plaintiff, as in his petition prayed for.”

The plaintiff was employed by the defendant as a card-grinder, and had been engaged at the defendant’s works for about three and one-half years. Under his employment, he had nothing to do with anything else.

The fly-plates had been removed by the plaintiff on the day preceding the accident, and under the immediate direction of the overseer. He admits, as a witness, that he was standing at the time of the acci-. dent, on the outside of the frame of the machine.

The plaintiff was quite accustomed to removing the flats. Other card-grinders make similar statements. The plaintiff was a head-grinder, or sub-overseer, and was always furnished with an assistant when one was required.

The superintendent states that he assisted plaintiff from the grasp-of the machine, after the accident happened, and that he was inside of the card-frame, and between the frame and the cylinder..

Another witness testified, that the plaintiff, at the time of the accident, was not at the side of the machine, but at the back of it, where he should not have been.

These, with other facts of the ease, which are cited in our opinion, to say the least,’put the plaintiff partially in fault.

He acted, in a great measure, upon his own judgment and responsibility.

Our investigation of this case has only served to reassure us of the correctness of the opinion at first entertained.

Our attention has, however, been arrested by what appears to us to be some very censorious observations which are contained in the brief of plaintiff’s counsel, and amongst the number, are the following, viz:

“This Honorable Court has attempted, and it does in its opinion “seek, to exempt the company from the operation of this rule, and “ from the performance of a plain, simple duty. There is nothing oc- “ cult or mysterious about this rule. It is not unjust or unphilosoph- ical; it is good and right, and universally applicable.

“To avoid the force of this, to find an avenue of escape for the de- “ fendant, this court says that it has not found that skilled mechanics “ attempt to remove flats from the machine when the fiy plate is re- “ moved and the machine is stripped.” Brief on rehearing, p. 5.

Again:

‘‘Will the court presume that a sane man, of ordinary endowments, “ would deliberately -thrust his right hand and forearm between re- “ volving cylinders and flats clothed with steel wires, to have that hand “ and forearm torn into a space of seven one-thousandths of an inch, “ and shreaded as the cotton is carded ?” Id. P. 6.

Again.:

“The rule' that a servant accepts the usual risks of his employment “ is by the court in this ease stretched to cover not only usual employ“ment, but unusual employment; because, forsooth, they say, a skilled ‘‘ mechanic would have known of. the danger.” Id. p. 8.

Again:

“So, then, to say that at this moment, that there was adequate super- “ vision of this mill, is, as if one, standing under an August sky in the “open sunlight, while all about him was bathed in the brilliancy of “ the noonday sun, were to close his eyes and declare that there was no “ evidence that the sun was shining.” Id. p. 9.

While this court is, at all times, willing to accord the largest latitude — liberty, if you will — to the losing counsel in a cause, to be heard on briefs upon application for rehearing, and approve and applaud their earnestness and eloquence in argument; yet, it cannot permit them to pass the proper and legitimate bounds of criticism of its opinions.

Knowing counsel as well as we do, and taking cognizance of the pleasant relations they have always sustained to the court, we feel impressed with the belief, that the censure which is reasonably to be inferred from the foregoing remarks, was, rather, the expression of undue zeal in the cause of their client.

The friction thus brought about by counsel, is equally unfortunate for them and the court; but we feel disposed to pass the matter by, in the earnest hope and belief, that we shall have no occasion to mention the subject again.

Rehearing refused.

Monroe, J., takes no part, as he was not a member of the court when the case was submitted.