The defendant does not seriously contest the facts enumerated, but rests his defense mainly on his alleged acquisition of the bonds in market overt and in good faith,they possessing all the indicia of valid and legal commercial instruments, entitling them to full faith and credit in commercial transactions, and that the effort of the state to recover them is an attempt to impair them as contracts protected under the state and federal constitutions. Counsel for the defendant insist that the question presented for solution is res nova, and not covered by

our decision in Pugh v. Moore, 44 La. Ann. 209, 10 South. 710; and in their brief they insist that neither that case nor any other decision of this court has involved the question in controversy. In the Pugh Case the court had under investigation that series of bonds known as the "Agricultural and Mechanical College Bonds," claim being made that same had been rendered void by the precept of the 233d article of the constitution of 1879, same being consolidated bonds that were regularly and legally issued under and in pursuance of the funding laws, sanctioned by a consti

tutional amendment, and had, prior to the adoption of the constitution of 1879, formed a part of the bonded debt of the state. The case of Herwig v. Richardson, 44 La. Ann. 703, 11 South. 135, adopts and follows the opinion in the Pugh Case, as it treats of Agricultural and Mechanical College bonds likewise. Hence our conclusion is that defendant's counsel is correct in stating the question to be res nova; but, in our view, the situation and strength of his defense are not improved thereby.

It is the recognized and fundamental doctrine of the law merchant, and accepted by text writers and acted upon by the courts of the country, that the holder of a negotiable instrument is one who has acquired it in good faith for a valuable consideration, from one capable of transferring it in the ordinary course of business, without notice of facts which impeach its validity as between antecedent parties; that such a holder possesses a title unaffected by those facts, and may recover on the instrument, although it may be without any legal validity as between antecedent parties, even though it was originally obtained by fraud, theft, or robbery. 1 Daniel, Neg. Inst. § 769. That author further states the doctrine thus: "It is to be observed, as a general rule, the purchaser can never be placed on a worse footing than his transferrer, although he himself could not, in the first instance, have acquired the vantage ground occupied by such transferrer; and therefore, even if he have notice that there was fraud in the inception of the paper, or that it was lost or stolen, or that the consideration had failed between some antecedent parties, or the paper be overdue and dishonored, he is, nevertheless, entitled to recover, provided his immediate vendor be a bona fide holder for value, unaffected by any of these defenses." Id. § 803. That principle is recognized in Commissioners v. Clark, 94 U. S. 285, and sanctioned by us in Levy v. Ford, 41 La. Ann. 873, 6 South. 671. Thus, it appears that the possessor of a negotiable instrument by such title is fully protected against charge of fraud or theft or failure of consideration between antecedent parties, and that the rule of property in such paper is so strong that such holder can convey to another a valid and indefeasible title, although the latter knew of its inherent defects. But the learned author also states an important exception to that rule. He says: "That suspicion of defect of title, or knowledge of circumstances which could excite suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title, subject to the following modifications, or qualifications, viz.: (1) That, when it is shown by the defendant that the instrument originated in fraud or illegality, the burden of proof will be shifted to the holder, and he must then prove that he is a bona fide holder for value. (2) Where it is

shown that the instrument was given for a consideration which, by statute, is declared void, the original taint follows it, and it is void in the hands of every holder, however innocent; and that no party can enforce a negotiable instrument if it be not genuine, or if it be executed by a party incapable of entering into the contract in which it was given. (Our italics.) 1 Daniel, Neg. Inst. §§ 769, 806. The author generalizes the principle, and says: "But the rule of the text is, we think, in conformity with the current and weight of authority and the law merchant. The fraud which shifts the burden of proof must have been in the consideration or representations used in obtaining the execution of the instrument, and not in the after-breach of trust in diverting it from the uses for which it was intended." Id. § 791. This distinction has been taken, substantially, in many reported cases. Jackson v. Bank, 2 Rob. (La.) 128; Dick v. Leverich, 11 La. 573; Merchants' Bank v. Exchange Bank, 16 La. 457; Bullitt v. Hewitt, 11 La. Ann. 327. It has also been taken by the supreme court in many cases. Otis v. Cullom, 92 U. S. 447; Orleans v. Platt, 99 U. S. 679; Shaw v. Railroad Co., 101 U. S. 557; Collins v. Gilbert, 94 U. S. 753; Cromwell v. County of Sac, 96 U. S. 59. It is also succinctly stated, in a recent treatise on commercial paper, that, "in order to constitute a valid security, any bond or negotiable obligation of the state must be issued on authority of the constitution and statute law." 1 Rand. Com. Paper, § 348. And the same author lays down the general proposition that the powers and duties of officers and agents "of the government, whether federal or state, are defined by statute, which is notice to the world of the limitations of their authority." Id. § 440. He also announces the principle that "the defense of original want of authority to issue a bond is available against all holders." Id. § 343.

On the facts above enumerated, and on the various authorities cited, we are of opinion that the bonds sought to be recovered of the defendant were absolutely void in their incipiency, having been issued by E. A. Burke, treasurer, without authority of law, and in violation of the law, constitutional and statutory, authorizing their issuance in exchange for consolidated bonds duly and lawfully surrendered. It has been clearly shown that they originated in fraud, and were issued by a person incapable, under the law, of entering into such a contract on the part of the state as they represent, same having been issued without the sanction or authority of the state; and it was the manifest and evident duty of all persons dealing in this exceptional class of commercial paper to take notice of the laws authorizing its issuance, such laws operating as full notice to them of the manner and circumstances of their issuance, and of the limitations that the law imposes upon the officers authorized to issue them. In such case the original taint follows the instrument, and renders it void in the hands of

every holder, however innocent. Hence the defense of bona fides cannot avail the defendant, it being matter of no consequence that he acquires the bonds for a valuable consideration before maturity, and without notice of the original informality of their is

suance.

Counsel insist, however, that the statute authorizing the issuance of constitutional bonds gave to the treasurer unlimited authority in the premises, and conferred upon him the power, without the concurrence or knowledge of any other officer, to issue such bonds in exchange for consolidated bonds, and that he was required to keep no record whatever of the fact or manner of making the exchange; nor was he required to perform any given ceremony or formula, "save the trifling one of identifying the new bond with the old one for which it was exchanged, by placing a number on the new bond, the same as the one upon the bond for which it was given." But this was not a "trifling" ceremony, by any means. On the contrary, it was of the utmost consequence and importance. The numbers placed on the shields or spaces left blank in the bonds when delivered to the treasurer furnished the only means of identifying one constitutional bond from another, and furnished the only evidence of his faithful performance of duty in obtaining a consolidated bond in exchange therefor. The surrender of the consolidated bond was the only consideration there was for the constitutional bond; and when the treasurer entered false and fictitious numbers in those spaces or shields he was, to all intents and purposes, guilty of a forgery. Vide Benson v. McMahon, 127 U. S. 468, 8 Sup. Ct. 1240, and authorities therein cited. The constitutional bond being intended for exchange for a consolidated bond, same was not complete and perfect until the exchange had taken place, and the number of the consolidated bond surrendered had been entered in the appropriate shield, as the law required, as evidence of such exchange having taken place. Until this was done, the constitutional bond did not become complete and perfect evidence of an obligation on the part of the state. That was requisite to make it an unconditional promise to pay. In this we find an essential distinction between the constitutional bond in question and the United States treasury notes that were involved in Cooke v. U. S., 91 U. S. 390, for in that case it was a fact conceded that, if the notes were genuine and unlawfully put in circulation, the government was bound for their payment to a bona fide holder; and the court said the notes were perfect and complete as soon as printed; that they did not require the signature of any officer; that, "as soon as they had received the impression of all the plates and dies necessary to perfect their form, they were ready for circulation and use,"-putting their opinion, evidently, upon

the ground that the notes were perfect in form antecedent to time of their issuance. Consequently, those notes did not come within the principle announced by Mr. Daniels, as being fraudulent in inception.

The defendant's counsel insist that the record furnishes no evidence of the bonds having been issued without consolidated bonds having been given in exchange therefor, and they deny the sufficiency of the proof which the attorney general claims to have made, by the introduction in evidence of a record found in the treasurer's office of the exchange of bonds; such record being unofficial, same not being by law required to be kept. But the then auditor, as a witness, states that the bond book contemplated and required, by the act authorizing an exchange of bonds, to be kept by the treasurer in the treasurer's office, was missing, and could not be found after diligent examination. He identifies an original list of the bonds exchanged as the one found in the treasurer's office, that is to say, the list of consolidated bonds that were surrendered, and are supposed to be destroyed. This list is denominated "Campbell's List," and was obtained from the treasurer's office at the expiration of the treasurer's term of office. The data furnished by this list are corroborated by the testimony of the clerk who assisted the treasurer in effecting the exchanges that were made, and his testimony makes it evident that the bonds in controversy were fraudulently issued, without any consideration whatever. We are unable to find in the record any evidence of the defendant's possession of the bonds numbered, respectively, 243, 244, 245, 246, 247, and 248. These numbers are not included in the list of bonds furnished by the attorney general as those held by the defendant, and in possession of the sheriff under the writ of sequestration. Hence we are of opinion that same were incorrectly included in the verdict and judgment, which is, in other respects, correct.

In so far as the defendant's reconventional demand is concerned, little need be said, for the reason that it merely alleges the legality and binding force of the bonds in his hands as obligations of the state; and inasmuch as, in the course of our opinion on the merits of the principal demand, we were necessitated to pass upon the primary validity of the bonds, there is nothing left in the reconventional demand to decide. We therefore pretermit any expression of opinion on the question of law raised with regard to the jurisdiction of this court, under the circumstances of this case, to render a judgment against the state without the sanction of the general assembly.

The judgment should be amended and affirmed. It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to reject and disallow the plaintiff's demand in respect to bonds numbered, respectively, 243, 244, 245,

246, 247, and 248, for $1,000 each, and that in all other respects the same be aturmed; the defendant being exonerated from the payment of the costs of appeal.

PARLANGE, J., not being a member of this court at time of the argument and submission of this cause, takes no part in the decision. McENERY, J., absent, sick.

(46 La Ann.)

SCHEXNAYDRE v. TEXAS & P. RY. CO. (No. 11,424.) (Supreme Court of Louisiana. Feb. 12, 1894.) RAILROAD COMPANIES-DEATH OF PERSON ON

TRACK-CONTRIBUTORY NEGLIGENCE.

1. There is no restriction as to the number of trains, regular or special, which a railroad company may run over its lines, nor is there any law in this state, except in cities, to regulate their rate of speed.

2. In the absence of statutory regulations, common prudence will regulate the rate of speed in passing stations and crossings, and the degree of negligence will be determined by the facts in each case. Where parties, from motives of business or pleasure, cross a track, before going on it they are required to exercise caution, care, and prudence, to look and listen for an approaching train. If they do this, it is not negligence to go on the track when no train is seen or heard approaching.

3. Where a party goes on a railroad track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would be very gross negligence, amounting to malice, to render the railroad company liable to him; and this rule applies with greater reason when the injured party has a safer mode of travel by a public highway.

4. Greater care, caution, and prudence are required of a deaf-mute who goes on a railroad track than from one in the full possession of all his senses. If he uses the roadbed as a highway, placing himself in a situation where hearing is one of the essentials of safety, it is negligence on his part.

(Syllabus by the Court.)

Appeal from district court, parish of St. John the Baptist; Emile Rost, Judge.

Action by Octave Schexnaydre against the Texas & Pacific Railway Company to recover for the death of plaintiff's son. There was judgment for plaintiff, and defendant appeals. Reversed.

Howe & Prentiss and Leovin De Poorter, for appellant. Morris Marks, Hamilton N. Gautier, and J. L. Gaudet, for appellee.

MCENERY, J. The plaintiff sued the defendant company for $28,300 damages for the death of his son, who was killed on the track of said company, by one of its trains, on the 15th December, 1890. The case was put at issue by a general denial. There was judg. ment for plaintiff for $20,000, and the defendant appealed.

In this case the facts are few, and the law well settled applicable to the same. The plaintiff's son was a deaf-mute, and was walking on the railroad track, his back towards an approaching train, which was a special train, running at a high rate of speed. v.14so.no.12-33

The engineer of the train gave the usual signals for the crossing about one-half mile above Duke station, near which the plaintiff's son was killed. When about a quarter of a mile from Duke station another signal of four whistles was sounded. These signals could be heard two miles on a still day. The day was clear and bright. When the last crossing signal was sounded, the engineer saw a man walking on the track. This man was the deceased son of plaintiff. The engineer did not know of his infirmity. The man paid no attention to the signal, and when within 100 yards the engineer blew the danger whistle rapidly,-"very vicious When and quick for a number of times." within 30 or 40 feet of the man, the engineer reversed the engine and applied the air brakes; but this last effort to avert the accident was too late, and the deceased was run over. The plaintiff's contention, from these facts, is that the engineer was guilty of negligence in running a special train at a furious speed, that proper signals had not been given before reaching Duke station, and that he failed to give notice to the deceased son of plaintiff of the proximity of the train. The defendant company has the exclusive use and control of its tracks and roadbed, and it is within its discretion to run on said tracks as many trains, regular or special, as its interest demands. There is no law regulating the speed of trains, except in cities, where crowded thoroughfares render this necessary. In the country, passing places where it is known that persons are in the habit of crossing the track in necessarily going from one place to another, greater caution is required of a railroad company in running its trains than in unfrequented and scantily populated sections. In the absence of statutory regulations, common prudence requires this. It is a necessity in many places-in fact, along the entire road-for it to be crossed at certain points by persons whose business or pleasure takes them across it. In these instances the party attempting to cross the road, before going on the track, has to exercise prudence and care, and to look and listen for an approaching train. If he does this, it is not negligence on his part to go un the track when no train is seen approaching. But, where the party goes on the track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would be very gross negligence, amounting to malice, to render the railroad company liable for an injury to him; and this rule is particularly applicable when the deceased or party injured has a safer mode of travel by a public highway, as in the instant case. The deceased was a deaf-mute. Greater care, caution, and prudence were required from him than from one in full possession of all his senses. Knowing his infirmity, his use of the road as a highway, upon which trains at any time must pass, was, in itself, negligence. The defendant company exer

cised all due diligence in running the train which killed the deceased. The usual and customary signals were given at the crossings, within the hearing of one not afflicted with deafness, and on the approach of the train to deceased he was given ample time, by signals, to get off the track. It was his unfortunate infirmity which caused the accident, and he was to blame for placing himself in a situation where hearing was one of the essentials of his safety. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered that there be judgment for the defendant, and plaintiff's suit dismissed, with all costs.

(46 La. Ann.)

JACKSON v. ILLINOIS CENT. R. CO. (No. 11,368.)

(Supreme Court of Louisiana. Feb. 12, 1894.) DEATH BY WRONGFUL ACT-ACTION BY WIDOWEVIDENCE OF MARRIAGE-APPEAL-REVIEW.

1. In a suit for damages for the death of a person, alleged to have been caused by the negligence of the employes of a railroad company, where the plaintiffs allege themselves to be the widow and children of the deceased, (the widow suing for herself individually, and for the minors as their mother and tutrix,) defendant is not entitled, under an unrestricted offer or tender of evidence, to introduce generally, and against all the plaintiffs, an extrajudicial admission, made by the mother since the institution of the suit, that she was not married to the deceased, when prior to this admission she had testified as a witness in the case that she was his widow. Had she sued alone and in her own behalf, such admission, if legally proved, was admissible against her. Quoad admissions made by her as affecting herself, her status as a party was not merged into that of a witness.

2. Where, in such a case, the supreme court has grave doubts as to the fact of the marriage of the plaintiff with the deceased, it will remand the case for a new trial, notwithstanding the verdict of the jury and the judgment thereon rendered.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action by Delia Jackson, individually, and as tutrix of Delphine Jackson and David Jackson, minors, against the Illinois Central Railroad Company, to recover for the death of James Jackson. Plaintiff had judgment, and defendant appeals. Reversed.

Farrar, Leake & Lemle, for appellant. Benjamin R. Forman, for appellee.

NICHOLLS, C. J. Plaintiff appears in this suit individually, on her own behalf, and as natural tutrix of the minors, Delphine Jackson and David Jackson. She alleges: That she is the widow, and the minors named are the children, of James Jackson, issue of her marriage with him. That on or about the 27th April, 1892, James Jackson was employed by the Brooklyn Cooperage Company to go to a point near Manchac, on the line of the Illinois Central Railroad Company, to load one of its trains with staves which the

Illinois Central Railroad had agreed to carry and transport from a point on its line of road near Manchac to New Orleans. That the Brooklyn Cooperage Company engaged for said Jackson passage on said railroad, to be carried from New Orleans to near Manchac and return to New Orleans, and it was the duty of said company to safely carry said Jackson, and it did carry him from New Orleans to the point on the line of the railroad near Manchac, with other laborers, where they loaded the cars of the defendant company with staves; and the said Jackson was then directed to get upon the train of the defendant company to be transported back to New Orleans, which he did, after dark, on or about the said 27th April, 1892, and was entitled to safe carriage to New Orleans; but the officers and agents of the said Illinois Central Railroad Company were guilty of gross negligence in the operation and running of its train upon which the said Jackson was being transported. That they had the engine reversed, but the headlight and the cowcatcher turned to the north, against the end of the box car of the train, when the train was traveling at rapid speed south, so that the engineer and fireman could not look forward and see obstructions, and had not the benefit of the headlight to observe obstructions, and had not the benefit of the cowcatcher to throw obstructions off the track; and, when so proceeding in such a seriously negligent and dangerous manner. the said engine and train ran against some cows upon the track. That no bell was rung, and no whistle was blown, or warning given, to frighten the said cows off the track, and by reason thereof the said train was derailed, and the said Jackson was crushed to death and killed, whereby he suffered great injury of body and mind, and damage to the sum of $1,000 for his sufferings, which right of action has survived to petitioner, his widow, and his two aforementioned minor children; and that petitioner individually, and the said two minor children of the deceased, were damaged by the loss of the husband and father aforesaid in the sum of $9,000. That the said railroad company could have prevented said killing and injury, and did not do so. Petitioner prayed for judgment against the railroad company for $10,000, with legal interest from date of judgment until paid. Defendant filed an answer denying generally all the allegations of plaintiff's petition, and specially denying that the plaintiff was the legal wife of the deceased, that Jackson was killed on its train on the 27th April, 1892, and that it was guilty of negligence in the premises. The case was tried by a jury, which returned a verdict in favor of plaintiff for $5,000. Defendant moved for a new trial, which was overruled, and, judgment having been rendered in conformity to the verdict, defendant appealed.

The only testimony adduced on the trial to