December 1, 1903, and December 13, 1903, respectively, to the plaintiffs' order, and signed by the Iota Implement Company, by J. H. Nordyke and H. Loewer & Co., per H. Loewer (being respondent); that at the time respondent executed these notes there was no such firm in existence as H. Loewer & Co., to the full knowledge of the plaintiff's representative, but the said notes were signed in that manner at the request of the said representative, and were accepted by the said representative with the full and distinct understanding by all parties concerned that the same was in full settlement of and a complete novation of the open account of $2,080, which novation respondent specially pleads.

Answering further, respondent avers that the item of $87.95 sued upon in plaintiff's petition is for repairs which were turned over to the Iota Implement Company, to whom the plaintiff looked for payment at the time of the execution of the notes aforedescribed, which is the reason and cause of the said amount not being included in the said notes; that the notes aforesaid were still in the possession of the plaintiff or its assigns; that they were an outstanding indebtedness against respondent for one-half the amount, being joint notes; and that consequently petitioner had no cause or right of action against respondent on any open account.

In view of the premises respondent prayed that the plaintiff's action be dismissed, and for all general and equitable relief. The district court rendered judgment in favor of Hundley, and also in favor of Loewer. In this judgment it was stated that there was no evidence connecting Hundley with the transaction. Plaintiff appealed.

Opinion.

The defendant Henry Loewer admits the original existence of his own liability upon the contract which the plaintiff sues upon,

but alleges that his indebtedness upon this same has been extinguished by reason of three promissory notes in the possession of the plaintiff, which were produced on the trial of the case one for $400; one for $1,271, and one for $409, payable November 1, 1903, December 1, 1903, and December 13, 1903, respectively, to plaintiff's order, and signed by the Iota Implement Company, by J. H. Nordyke and H. Loewer & Co., per H. Loewer-which notes he averred were received by plaintiff's representative with the full and distinct understanding by all parties that the same were in full settlement and extinguishment of, and a complete novation of, the open accounts of the plaintiff.

Plaintiff proved up his claim independently of defendant's admission. The court sustained Loewer's defense, and rejected plaintiffs' demand. In so doing the court erred. Setting aside the fact itself that the plaintiffs had in their possession the notes referred to, signed as they were, there is no evidence whatever in the record to sustain defendant's plea of novation. On the contrary, the evidence negatives it positively.

The evidence shows beyond dispute that these notes were received by a clerk or employé of the plaintiffs named Cease merely as collateral security for the debt due by Loewer to the plaintiffs; that when they were executed Loewer desired to sign them individually, but Cease refused to allow him to do so, saying the contract was signed "Loewer & Co.," and the notes should be signed similarly, or plaintiffs would not accept them. Cease never represented to the plaintiffs or to Loewer that they were received, or extinguished the latter's debt, nor did plaintiffs ever say so or do anything which could justify Loewer in supposing that they were so accepted. Novation is not presumed. The intention to novate must clearly appear from the terms of the agreement or by a full discharge of the original debt. Loewer's defense rests entirely upon the infer

ence which he seeks to have the court draw from the fact itself that his creditor held in his possession notes corresponding in amount with his indebtedness signed with names other than his own, payable at different dates from the original indebtedness with a higher rate of interest than plaintiffs had novated. Novation does not arise from mere implication. Code, art. 2192, declares that the delegation by which a debtor gives to the creditor another debt, or who obliges himself towards such creditor, does not operate a novation unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation, while article 2187 is to the effect that the pre-existing obligation must be extinguished, otherwise there is no novation. If it be only modified in some parts, and any stipulation of the original obligation be suffered to remain, it is no novation. Plaintiffs' action is not upon the notes, but upon the original obligation precisely according to its terms. Implication finds no place when it is opposed by direct unimpeached evidence to the contrary, and such is the case here. The implements sold by the plaintiffs were sold to Henry Loewer as being Loewer & Co., a firm which really had no existence. They were shipped to and received at Gueydan, La., according to the contract. Loewer shipped them to Welsh, La., to the Iota Implement Company, a commercial partnership which he had formed at that place. Under what circumstances and conditions they were sent to that company does not appear, but the implements were partly sold by that company and the balance turned back to Loewer. Whatever may have been the terms and conditions under which the Iota Company received them was a matter which did not concern the plaintiffs. They certainly did not consent to substitute

to Loewer's indebtedness to them that of the latter company. Plaintiffs' counsel, in their brief, say: "It is sought to impose upon the credulity of the court that the Sucker Drill Company had released Henry Loewer & Co. in a debt for which he was wholly liable, and fully able to pay, and that the plaintiffs had accepted notes on which he (Loewer) says he was only jointly liable with a partnership concern as a co-maker perfectly irresponsible, and which, as testified to, was insolvent at the maturity of the notes, a concern with which Henry Loewer had severed his connection six months after its formation.

The court will not accept this theory upon its knowledge of human nature, and be induced to believe that the plaintiffs would have surrendered a certainty for an uncertainty, a good for a worse advantage in a mercantile bargain, and waive its vendor's lien and privilege on the implements sold under contract to H. Loewer & Co. Carriere v. Labiche, 14 La. Ann. 211, 74 Am. Dec. 428; Latiolais v. Citizens' Bank, 33 La. Ann. 1450; Hughes v. Mattes, 104 La. 218, 28 South. 1006; Studebaker v. Endom, 50 La. Ann. 674, 23 South. 872.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiffs, the Sucker Drill Company, do have judgment against Henry Loewer for the sum of $2,167.95, as follows: For $693.33% due December 1, 1902, for $693.33% due January 1, 1903, and $693.33% due February 1, 1903, with legal interest from their respective dates of maturity until paid, and for the further sum of $87.95, with legal interest thereon from judicial demand.. with costs in both courts.

1. A street railway company will not be held responsible for the death of a child 2 years old which has suddenly and unexpectedly run upon the track 5 to 10 feet ahead of an electric car moving rapidly through a narrow street.

2. In such a case, the fact that the car was not brought to a full stop within as short a distance as the evidence shows it is possible to bring such a car to a full stop is insignificant, in view of the fact that, even if it had been done, the fatal result would not have been avoided.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.

Action by Alfred Miller and wife against the St. Charles Street Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Robert John Maloney and Mark Neuhauser, for appellants. Harry Hinckley Hall, for appellee.

PROVOSTY, J. The jury found for the defendant, and the trial judge refused a new trial, and we have no difficulty in reaching the same conclusion. Plaintiff's 21⁄2 year old child was run over and killed on Royal street, at the intersection of Marigny street, by one of the electric cars of the defendant company going uptown. Royal and Marigny are narrow streets, 29 feet from curb to curb, and 10-foot sidewalks. The distance between the car track and the curb on Royal is 12 feet. The child, just before the accident, had been making mud cakes at the woods side, downtown corner of Royal and Marigny. It was off the sidewalk, somewhere on the line of the prolongation of the Royal street woods

*Rehearing denied April 10, 1905.

side sidewalk, or possibly within the property line, but, if so, very near it. The boy in whose charge it was was within a few feet of it on Marigny street, playing with a dead snake with other boys. Standing between the child and the coming car, and to some extent screening the child, were a large square telegraph post, three awning posts, and a trolley post, and there were two, and possibly more, persons standing on the sidewalk near the corner. The car came at the usual speed, which is pretty fast, and the child suddenly and unexpectedly ran in front of it, 5 to 10 feet ahead of it, and was run

over.

We do not think a motorman is obliged to check the speed of his car whenever there are persons on the sidewalk or at the corner, and if a child comes suddenly and unexpectedly from behind, or from among, such persons, and runs upon the track right in front of the car, so that it is impossible to stop the car in time to save it, we do not think the railway company is responsible.

Three of plaintiff's witnesses say the child walked upon the track; but one of them says it ran fast, and so say defendant's witnesses. If the child had walked, we cannot conceive how some one of the persons standing so near would not have saved it.

Plaintiff's principal witness, Mrs. Casey, was on the sidewalk in front of the grocery which stands at the woods side, uptown corner of Royal and Marigny-that is to say, on the same side of Royal as the child-and was walking in the direction of the child and of the coming car. She did not see the car until it was upon the child, and did not see the motorman at all, her attention having been concentrated on the child; but she is positive that the motorman did not see the child until after it was on the fender, when his attention was attracted by her own exclamation. On the other hand, plaintiff's next principal witness (we say "next prin

cipal witness," because the others were youths who were playing with the dead snake), Louque Petrovich, was opening oysters inside of his shop which stands at the riverside, downtown corner. Through the door he saw the car pass, and the motorman was then screwing the brake to stop the car. At that moment there intervened between the car and the child, first, the three or four feet between the door, through which the witness looked, and the property line; second, the 10-foot downtown sidewalk of Marigny street; third, the distance, whatever it was, between the downtown curb of Marigny street and the point where the car actually came in contact with the child. Mrs. Casey's statement as to the motorman's not having seen the child until it was on the fender is therefore contradicted by Petrovich.

From the uncertainty as to the location of the child just before the accident, and from the contradiction as to whether it walked or ran towards the track, and from the fact that persons so near made no effort to save it, we suspect very strongly that none of the witnesses observed the child until it had run into the peril, and that its movement was so sudden that there was no opportunity to attempt to save it.

The car ran 69 feet after the collision, and the answers of the motorman would go to show that he is either a very stupid or very ignorant man. But the court is satisfied that under the circumstances the best of motormen could not have saved the child; hence between any deficiency of the motorman and the fatal result there is no causal connection.

In order to show that the car was going at extraordinary speed, plaintiff's learned counsel, who has presented this case very ably, makes an ingenious computation of the speed which the car had to maintain in order to cover its prescribed course in the time allowed by the schedule, and make all stops. In

the first place, the main basis of this calculation-the distance is not established by any evidence, and could be arrived at by the court only by taking judicial knowledge of the termini of the route, and of the number of squares along the route, and of the length of the squares and the width of the streets. Even if the data were in the record, such a computation would be too uncertain to serve as a basis for judicial action. A car so scheduled might make extraordinary time at certain places and crawl along at others. Judgment affirmed.

(38 South. 402.)

No. 15,552.

STATE v. FOLEY.*

(March 13, 1905.)

CRIMINAL LAW-AUTRE FOIS ACQUIT-FORMER

JEOPARDY.

1. Where, by reason of the date of an offense, as alleged in the indictment, the prosecution is barred by prescription, so that, quoad the offense charged, there can be no legal conviction, and the defendant, upon his own motion, whether by the trial or the appellate court, is discharged upon that ground, such offense cannot thereafter, and for the purposes of the plea of autre fois convict, be identified by him as being the same as that charged, by information subsequently filed, to have been committed at a later date, the prosecution of which is not so barred.

2. But if such identity could be established. the plea of autre fois convict is founded in the law that no one shall be twice put in jeopardy for the same offense, and the law does not consider that one has been put in jeopardy by a prosecution under an insufficient indictment: and it holds, moreover, that when his conviction is set aside, at his instance, on motion for new trial or in arrest of judgment, he thereby waives any objection that he might otherwise urge to being tried again.

3. The plea of autre fois convict, based on a conviction that has been set aside, on motion in arrest of judgment, as illegal, is, on its face, demurrable, and is properly heard and decided by the trial judge, without a jury.

*Rehearing denied April 10, 1905.

4. No appeal lies from the ruling of the trial judge refusing to allow a plea of autre fois convict, demurrable on its face, to be tried by jury.

(Syllabus by the Court.)

Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.

Paul Foley was convicted of larceny, and appeals. Affirmed.

Montgomery & Robira and John Lewis Kennedy, for appellant. Walter Guion, Atty. Gen., and William Campbell, Dist. Atty. (Lewis Guion, of counsel), for the State.

Statement.

MONROE, J. Defendant was prosecuted and convicted of burglary and larceny, under an indictment filed in April, 1904, which charged that the offense had been committed on January 22, 1903, and he filed a motion in arrest of judgment, on the ground that, upon the face of the record, the prosecution was barred by prescription, and the conviction was therefore illegal. The motion was overruled by the district court, but, on appeal (36 South. 940), was sustained by this court, and the conviction was set aside. In December, 1904, he was prosecuted, by information, for burglary and larceny, charged to have been committed on January 22, 1904, at the same place and of the same property, and he filed a plea of autre fois convict, and prayed that the same be tried by a jury, which prayer was denied, and, the plea having been tried before the judge and overruled, the defendant, after an unsuccessful application for a new trial, appealed, and now presents his case to this court on bills of exception taken to the different rulings mentioned.

Opinion.

It has been held by many of the courts of this country that an acquittal or conviction of a crime is no bar to a subsequent in

dictment for the same offense, or the same species of offense, where the latter is alleged to have been committed at a different date from that previously tried, unless the offense is continuous. Cyc. vol. 12, p. 281. See, also, State v. Malone, 28 La. Ann. 80. Under our law (Rev. Laws 1904, § 1063), the omission from an indictment of the time at which the offense charged is supposed to have been committed, or the improper statement of such time, save in cases where time is of the essence of the offense, is immaterial; hence, where a defendant in a criminal prosecution has been acquitted, or convicted, under an indictment in which no date or an impossible date, is given, or the offense is charged to have been committed upon some other than the real date, the plea of autre fois acquit, or autre fois convict, may operate as a bar to a subsequent prosecution for what is, in fact, the same offense, since the defendant might legally have been convicted thereof notwithstanding the omission or error in the indictment as to the date of its commission. But where, by reason of the date of the offense as stated in the indictment, the prosecution is barred by prescription, so that, quoad the offense, charged there can be no legal conviction, and the defendant, upon his own motion, whether by the trial or the appellate court, is discharged upon that ground, such offense cannot thereafter be identified by him as being the same as that charged, by information subsequently filed, to have been committed at a later date, the prosecution of which is not barred by prescription. Assuming, however, arguendo, that although the present defendant, on his former trial, successfully pleaded that he was charged with an offense committed on January 22, 1903, the prosecution of which was prescribed, he may now set up that such offense was and is really the same as that which he is charged by the information in this case with having committed a year later,