ing, that testimony, when brought up, and if brought up, would have established affirmatively the incorrectness of the statements. He contends that we must assume this for the purposes of this case. We do not see that "writing" could or would more directly and positively disclose what those witnesses swore to than the admissions of the judge. Those witnesses, beyond question, swore that the attack was begun by the deceased's shooting at McCort. There is no difference of opinion between the district judge and the counsel on that point. The divergence between them commences as to the effect of that testimony. Counsel for defense has overlooked the fact that, while he offered to take down in writing what his own two special witnesses might swear to, he did not, at the same time, attempt to have taken down that of the three witnesses whom the judge refers to, and upon whose testimony he mainly formed his opinion. It is not claimed that the recital by the judge of what these three witnesses swore to was not absolutely correct, nor that the various other facts to which the judge alludes were not positively established. We must assume that so far, at least, as the testimony going to disprove the overt act was concerned, the judge's statements are true, and in reaching our conclusion as to his rulings could not ignore them. We certainly could not exclusively consider what defendant's witnesses (one or more) may have sworn to, and disregard what the state's witnesses swore to. We would take a one-sided view of the situation by such a course. If we assume in this case that the judge had permitted the evidence of Barnett and Gardner to have been taken in writing, and that we had, for the purpose of defendant's exception, embodied that testimony in full in the bill, leaving the remainder of the bill just as it is, in what way would defendant's cause be advanced? We would still have before us the judge's statements as to the evidence on the other side of the question, (as to the correctness of which there would be no issue,) and we would be forced, on the whole question, to adjudge the judge's course not to be error. Had defendant controverted the statement of the judge as to what the three witnesses whose testimony was unfavorable to defendant had said, and had endeavored unsuccessfully to have had that testimony taken down, his position would have been much stronger than it is. That testimony, for obvious reasons, was not sought to be perpetuated. suming that the judge should have permitted the reduction of Barnett's and Gardner's testimony to writing, and that he erred in declining to do so, we would still have a case of error without injury, for, on the showing made in the bill of exceptions, we would have to maintain the exclusion of the testimony as to threats and character. In the case at bar all the evidence on the subject of the overt act went before the jury; and As as, in spite of the testimony of Barnett and Gardner, the jury returned an unqualified verdict of murder, it is evident that it must have placed on their testimony the same estimate that the judge did. This fact is not, of course, conclusive, but it goes far to sustain the opinion of the judge as to the credibility of those witnesses. Testimony as to threats and character are not introduced here to go to establish the overt act, but, the overt act having been proved, the testimony is permitted to be introduced to supplement the other evidence in the case. For the reasons herein assigned, our former judgment must remain as it was, and the rehearing asked for is refused. (46 La. Ann.) STATE ex rel. ALGIERS BREWING CO. v. 1. The only issue is whether the relator is entitled to a suspensive appeal from an order appointing a receiver. 2. The court of the first instance having acted upon the resolution of the company consenting to the appointment of a receiver, a suspensive appeal will not lie from the decree of appointment without proof that the resolution was ultra vires, or that it was, in other respects, illegal and improper. 3. The remedy to correct the alleged illegality in the appointment of a receiver is by rule to set aside and vacate the order of appointment, and, if the rule be denied, to appeal from the decision. 4. Whether the company consented legally is a question of proof to be considered on the trial of a rule. McEnery, J., dissenting. (Syllabus by the Court.) Original application by the Algiers Brewing Company for writs of mandamus and prohibition to Fred D. King, judge division B, civil district court. Denied. Henry P. Dart and Frank B. Thomas, for relator. Horace E. Upton and Lazarus, Moore & Luce, for respondent. BREAUX, J. The relator is engaged in the business of brewing and selling beer, and is the owner of a brewery. On 28th August, 1893, the Lafayette Bank of Missouri, claiming to be a creditor, instituted suit and applied for the appointment of a receiver. A receiver was appointed. He qualified, and took possession of the property. The relator moved the court to grant it a suspensive appeal from the judgment appointing a receiver, as well as from all other orders granted under the order of appointment. The court declined to grant the motion. The writs applied for from this court are for the purpose of compelling the district judge to grant the order of appeal for which an application was made. The relator, in the petition for writs of mandamus and prohibition, substantially alleges that it is true that, after the appoint ment of the receiver, the board of directors of relator were induced to hold a meeting, and were misled into passing a resolution framed as follows: "New Orleans, August 31, 1893. The board met to-day with the following members present: Dr. E. Y. Ames, J. J. Clarke, William Gaiser, H. V. Boubade, J. M. Lotz, and F. A. Godefroy. The president called the meeting to order, and stated that the purpose was to explain the situation now existing with reference to the pending suit of the Lafayette Bank of St. Louis against the Algiers Brewing Company, in which application has been made for the appointment of a receiver, and John H. O'Connor has been appointed a receiver. The necessity for the appointment being recognized, and the appointment having met with the approval of the board, after discussion, it was moved by Mr. Lotz, seconded by Mr. Godefroy, that Dr. E. Y. Ames be suggested and recommended to the court for and in behalf of this corporation to act as coreceiver, in the suit of the Lafayette Bank of St. Louis v. Algiers Brewing Company, with John H. O'Connor, receiver herein; said suit being now pending in the civil district court for the parish of Orleans. It was further resolved that a copy of this resolution be presented to the Hon. F. D. King, judge of said court, accompanied by a petition, containing proper averments, asking for the immediate appointment of Dr. Ames as coreceiver in the interest of the stockholders of the company." The relator alleges that the board subsequently rescinded the foregoing resolution, as ultra vires, null, and void, and instructed their attorney to take immediate steps to revoke the appointment of J. H. O'Connor as receiver, and to restore the property of the brewery to its previous condition; that the rescinding resolution was presented to the civil district court, and permission asked to have it spread upon the records of the court, which permission was refused. The respondent judge returns that, the Algiers Brewing Company having, by resolution, approved the appointment by the court of a receiver, he declined to allow a resolution purporting to rescind the action ex parte to be spread on the minutes; the court considering that if there is any error in the order appointing a receiver, that the proper mode of procedure is that pointed out in Whitaker v. Ashbey, 43 La. Ann. 123, 8 South. 394, and State v. City of New Orleans, 43 La. Ann. 829, 9 South. 643,-to move for the rescinding of the appointment ordering a receiver. That he was not advised as to the truth or falsity of the allegations of the relator that the resolution consenting to and approving the appointment of a receiver was the result of surprise, deception, and misinformation, as alleged. That if they are true, and it constitutes in law cause for the annulment of the orders made by him, such orders could have been rescinded, on motion to that effect, after trial contradictorily with all parties in interest. That he suggested and invited from the bench such action, and assured counsel that he would make such rule returnable within the shortest possible delay. He denies that the action of the board of directors in approving and consenting to the appointment of a receiver is ultra vires. That whether ultra vires or not depends upon the terms of the charter of the Algiers Brewing Company and the action of the stockholders. That these facts can be determined only by evidence, taken contradictorily with all the parties in interest in the court of the first instance. That if a rule had been taken out, as suggested by him, investigation and inquiry could have been had, and decision thereon rendered, but relator failed and neglected to adopt such a course, clearly pointed out by law. The relator, on the face of the papers, having acquiesced in the appointment and voluntarily ratified the decree of appointment, the supreme court will not set aside the order granted and thus ratified without evidence showing the necessity for rescinding the decree appointing the receiver. The order of the court of the first instance was based upon the consent of the board of directors. We will not assume, without any evidence before us, that the court erred in thus placing confidence in the first resolution adopted by the Algiers Brewing Company approving the appointment of a receiver. If, as alleged, there was deception practiced which influenced the board, and if the action was ultra vires, and if other grounds of nullity pleaded are cause sufficient to set aside the order appointing a receiver, they should be brought up, after hearing contradictorily with the parties in interest. The court will not assume that the grave charges made are true, and proceed to a hearing upon that hypothesis, with the view of rescinding the order of appointment. The granting of a suspensive appeal upon those grounds would have the effect of temporarily sanctioning the charges, as if proven. Upon unproven averments the Algiers Brewing Company would suspend the execution of an order to which it consented. Such would be the only effect of a suspensive appeal. Parties cannot sustain contradictory positions. It would be encouraging proceedings to no purpose to grant a suspensive appeal. Therefore, we will not grant the writs applied for by the relator, and we relegate it to the district court of original jurisdiction for any remedy to which it may be entitled. Whether the company consented legally is a question of proof, which must come to this court, as proof in other cases is brought up. on an appeal. It is ordered, adjudged, and decreed that the restraining order be rescinded, and relator's demand rejected. MCENERY, J., (dissenting.) On August 28, 1893, the Lafayette Bank of St. Louis filed a suit in the civil district court for the parish of Orleans, for the appointment of a receiver to the Algiers Brewing Company. In the application for the appointment of a receiver, it is averred that the management of the company was characterized by waste, extravagance, and recklessness; that the mortgage bonds of the company were sold at the rate of 50 cents on the dollar by said company, as the result of a combination and conspiracy between the management of said brewing company and certain persons named in the petition; that a great number of suits were pending against said company; that the entire plant was under seizure in the suit of August Borman v. Said Company, to satisfy a debt of $333.33, in pursuance of a judgment rendered in said suit, and the same was authorized to be sold by the sheriff; that certain parts of the machinery of said company were in the hands of the sheriff under writs issued in the suit of First National Bank of Chicago v. Said Company; that six mules were also under seizure in another suit against said company; that certain members of the board of directors, acting in concert with certain stockholders of said corporation and certain bondholders, had conspired and confederated together to obtain possession of the entire plant of said corporation in satisfaction of their bonded indebtedness under consent proceedings to be instituted in the United States circuit court; that the board of directors and stockholders of said corporation had passed a resolution and signed a paper agreeing and consenting to an application about to be made on behalf of one of the bondholders, acting for himself and the other bondholders, for the immediate appointment of a receiver to administer the property of said corporation through the interposition of the United States circuit court, thus establishing consent to the appointment of a receiver and recognizing the necessity therefor. The corporation is alleged to be in an insolvent condition. On this application an ex parte judgment was rendered appointing a receiver, to be "invested with all the powers with which receivers are invested under the law." He was directed to take charge of the property of the corporation, and the proceedings in case of Borman v. Said Company were ordered stayed, and the mules and machinery sequestrated in the other suits were ordered in the possession of the receiver, without prejudice to the rights of the seizing creditors under their writs. Accompanying the petition the plaintiff, who applied for the order, filed some evidence to substantiate the allegations in the petition; but the proceedings were conducted contradictorily with no one, and the judgment appointing the receiver was solely ex parte. Within 10 days after signing the ex parte judgment appointing a receiver, the relator applied for a suspensive appeal from the judgment, and tendered a bond. The appeals were refused. Hence the application to this court for the necessary writs to enforce the granting of the appeals. In the briefs filed, there is considerable length devoted to the question whether or not the respondent judge had the power to issue the ex parte order appointing a receiver. The order may or may not have been properly granted. This question can only be determined when the judg ment is before us on appeal. Our inquiry is now restricted to whether the relator is entitled to a suspensive appeal from the ex parte judgment. The application for the suspensive appeal is resisted on the following grounds: (1) That the creditors and stockholders were not parties to the judgment, and as third parties they must produce proof, which must be established contradictorily with the parties to the judgment, that they have an appealable interest; (2) that the judgment is interlocutory, and works no irreparable injury; (3) that the remedy to correct such an appointment is by rule to set aside the judgment, improvidently granted, and an appeal from the judgment on the rule. The other grounds of consent to the appointment of a receiver, and the acknowledgment of its necessity, properly belong to the investigation of the rightful issuance of the order from which an appeal is asked. 1. On the first point it is evident that, in the present proceeding, the question raised properly belongs to the proceedings on appeal in a motion to dismiss the appeal. In application to this court in the first instance for writs, the interest of the parties is presented on a prima facie snowing. The petition of relator shows an appealable interest, and this petition is accompanied by his affidavit. Even when the appeal is on file in this court, it is sufficient if the record shows a pecuniary interest. State ex rel. Bonnet v. Judge, 29 La. Ann. 397. In the case of Insurance Co. v. Costa, 32 La. Ann. 3, this court said that this pecuniary interest may be shown by proper affidavit, indicating the nature and extent of the right imperiled by the decree, and by the recitals of which the opposite parties would be so minutely informed as to be enabled to conclude, by an inspection of the evidence itself, whether to contest or acknowledge the applicant's right to an appeal. 2. An interlocutory order is something which is ordered by the court between the commencement and end of a suit, which decides some preliminary part or matter, which, however, is not a final decision of the matter in issue. From this class of decrees an appeal is permitted, when an irreparable injury may result from its enforcement. But in a judgment appointing a receiver certain facts have to be presented and passed upon by the judge to whom the application is presented, and the decree in such a case possesses some of the elements of a final judgment, which requires the signature of the judge, and belongs to that class named in the Code of Practice, distinguishing them from interlocutory orders, which do not require the signature of the judge, but which must be correctly entered in the record. Code Pr. arts. 537, 544 546; Starke v. Burke, 9 La. Ann. 345. The facts alleged by respondent in his application for the appointment of receiver, such as the abandonment of the franchises of the corporation, its insolvency, and the conspiracy between the shareholders and directors,are matters which, by a definite judgment, may become res judicata between the parties to the litigation. Code Pr. art. 539. A judgment contradictorily rendered is that which has been given after the parties have been heard, either in support of their claims or their defense. Code Pr. art. 535. The usual method of appointing a receiver is after the parties have been heard, and a judgment is rendered on the facts presented. That there is a consent judgment does not detract from the force of the judgment, as the facts are admitted, and proof by witnesses and documentary evidence dispensed with. All such judgments have to be signed as final judgments, which may become definitive as to the issues presented by abandoning an appeal, or by a final judgment of the appellate court. From all such judgments an appeal will lie, and the reports of this state will show that appeals from judgments appointing receivers have never been denied. 3. It is urged by plaintiff and respondent that the relator should have provoked a rule to set aside the ex parte judgment appointing a receiver, and an appeal should have been taken from the judgment on the rule. I fail to see the force of this argument. In some cases, in the exercise of the supervisory jurisdiction of the supreme court over inferior tribunals, it may be required that the applicant for relief exhaust his remedies in the lower court. In the exercise of the right of appeal, if the party cast could appeal from a judgment rendered contradictorily with him, there seems to be a stronger reason why he should be permitted to do so if the proceedings leading to the judgment have been ex parte and irregular. What reason is there for the proposition that the defendant should proceed by rule, and ask a reversal of the judgment as a prerequisite to an appeal? The presumption is that the judgment is valid, and why should the defendant require the court to reverse its proceedings as irreg ular, and proceed regularly to pronounce judgment, before an appeal should be allowed? The time of the court should not be occupied in order to reach such a result, when it can be accomplished by a direct proceeding by appealing at once from the judg ment. It avoids expense and delay, and the convenient and speedy administration of justice is the first consideration of courts in the disposal of cases. But it is the judgment rendered from which the defendant has the right to appeal,-no matter how rendered, so that it is final, or an interlocutory order that may work an irreparable injury. The judgment may be null and void from irregularities in the proceedings. The defendant has the right to attack it, and have its nullity declared, either by appeal or an action of nullity. The relator herein has chosen the first mode of proceeding,-by an appeal,—a constitutional right which cannot be denied him. State ex rel. Johnson v. Judge, 36 La. Ann. 210; State ex rel. Morey v. Judge, 31 La. Ann. 823-825. 4. It is suggested in respondent's brief that the action of the court in the appointment of a receiver is not reversible on appeal. This doctrine has been unquestionably held in other jurisdictions, but in this state there is no statutory proceeding authorizing the appointment of a receiver to a corporation, and the assumption of such authority by the courts has only been in extreme and special cases, such as where the property of the corporation has been abandoned, or where there are no persons authorized to take charge of or to conduct its affairs. Baker v. Railroad Co., 34 La. Ann. 754; State v. City of New Orleans, 43 La. Ann. 830, 9 South. 643. And this authority has heretofore been exercised when all the parties were before the court. Whether there was a consent proceeding in the lower court to authorize the ex parte judgment appointing the receiver can only be determined when all the facts are before us on appeal. The respondents contend that in no event is the relator entitled to a suspensive appeal, and article 580 of the Code of Practice is referred to as being conclusive on this point. The judgments which are exe cuted provisionally are mentioned in said article, and rendered in the matter of the appointment of tutors and curators of incapacitated persons, and syndics of creditors where they are ordered to administer provisionally as creditors of vacant successions. The reasons for these exceptions are obvious. The necessity for some one to take care of the incapacitated persons or vacant estate is imperative, and the syndic provisionally appointed remains in charge of the provisional administration only, without power to sell, his acts only being conservatory, until a regular syndic is elected by the creditors. In this case there was no provisional appointment of a receiver, with power limited to conservatory acts, but he has the amplest power under the order for a full administration, extending to the sale of the effects under the order of court, and a general winding up of the concerns of the corporation. The article referred to does not include a judgment relating to such matters. If a party has a right to appeal, the rule is that he can appeal suspensively, and I find no exception to the judgment in appointing a receiver to a corporation with full powers of administration. The directors had no power to consent to the appointment of a receiver. The shareholders only could give this consent. The directors are only the agents of the shareholders, and cannot do any act not authorized by the charter. Rehearing refused. A brakeman thrown from a car while releasing a brake cannot recover for the resulting injuries in the absence of evidence of any defect in the brake that would cause it to "stick," or of proof of any fact accompanying its release that would tend to throw him off. Appeal from circuit court, Montgomery county; John P. Hubbard, Judge. Action by E. M. Binion against the Louisville & Nashville Railroad Company to recover damages for injuries sustained while in the employ of defendant. Judgment for plaintiff. Defendant appeals. Reversed. Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they must find for the defendant." (2) "If the jury believe the evidence of the plaintiff, Binion, they must find for the defendant." (3) "If the jury believe from the evidence that when defendant's engineer called for brakes, that Binion, the plaintiff, applied the brakes on the car from which he fell, and that said brakes performed the service for which they were attached to the car; and that when defendant's engineer called the brakes off, and failed, but found it tight, and in consequence thereof the car was jumping; that he made a second attempt to release the brake, but failed, and that he then put down his lamp, and at a third time attempted to release the brake, and this time succeeded, and in doing so he fell from the car, and received the injuries of which he complains,-then the jury must find for the defendant." (12) "If the jury believe from the evidence that when the plaintiff started to loose the brake he discovered that there was something wrong with the brakes, and that there was danger in attempting to turn the brake loose without help, then, if he failed to ask for help, and was injured in consequence thereof, he so far contributed to his own injury as to prevent any recovery in this case, and the jury must find for the defendant." (13) "When the plaintiff discovered, as he alleges, that there was something wrong with the brake, and he did not there choose the safer plan of calling aid, but chose the more dangerous plan of releasing the brake, he was guilty of contributory negligence, and cannot recover." (17) "If the jury find from the evidence that plaintiff, in attempting to turn loose the brake after having applied the same, lost his balance and fell from the car, and thereby sustained his injuries, then they must find for the defendant." (19) "If the jury believe from the evidence that when a brake is stuck, that it requires extraordinary care to turn it loose, and if the jury find that the brake in question was stuck when he attempted to turn it loose, and this fact became known to plaintiff when he attempted to loose it, then it became the duty of the plaintiff to use extraordinary care in turning it loose, and, if he could have gotten it loose with safety by calling aid for that purpose, it was his duty to have done so; but if he failed to call for help, but attempted, without help, to get the brake loose, and if it was a dangerous thing to do, then in not calling for help, and in attempting to loose the brake by himself, he so far contributed to his own injury as to prevent any recovery in his behalf, and the jury must find for the defendant." (20) "The defendant is not liable, even if the jury believe there was a defect in the brake, unless the jury further find from the evidence that defendant's inspector at Mobile was negligent in not discovering it." (27) "If the plaintiff discovered that the brake which he alleges threw him off the car was defective, and failed to notify the defendant of such defect, he cannot recover unless he knew the defendant was already aware of the defect." J. M. Falkner and Chas. P. Jones, for appellant. Chas. Wilkerson, for appellee. STONE, C. J. Binion, plaintiff in this suit, was brakeman on a freight train of the appellant railroad company. While in the discharge of his duties as brakeman he fell from the top of one of the box cars, and was so injured that he lost his arm. The present suit was instituted under the employers' act, (Code 1886, § 2590,) and seeks to recover damages for the injury suffered. The complaint consists of a single count with amendments. It charges that the injury was caused "by reason of a defect or defects in the ways, works, machinery, and brakes connected with, or used in, the business of said defendant; and plaintiff alleges that the brake or brakes on said railroad car or box car was defective, and plaintiff did not know of said defect in said brake or brakes on said car; that the brake and appliances on and attached to the box car from which plaintiff was thrown were defective, in this: that the dog, ratchet, chain rod, or shoes of said brake were so defective or so worn as to be inoperative and ineffective for the purpose for which they were attached to said car; that the said brakes were defective in some part, so that plaintiff, while engaged in and about his duties as brakeman, and while trying to execute the duties required of him as brakeman in letting down said brakes, was thrown from the top of said car, right arm cut off, and injured as aforesaid, by reason of the defect in said brakes; that said defect in said brakes was not discovered owing to the negligence of the said defendant, or of the parties in the employ or service of the said defendant intrusted with the duty of seeing that the ways, works, and machinery of de |