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WATERWORKS AND WATER SUPPLY.

VERDICT-Continued.

thorizing the state to appeal from a judgment acquitting accused
when a question of law has been decided adversely to the state

has no application. State v. Brooks, 661.
3. Railroads. Obstruction of highway. Code 1906, section 4049. Er-

cessive damages.
Where plaintiff, a woman, being ill, was on her way to see a physi-

cian and was detained on a public crossing on account of its being
blocked by a railroad train for twelve minutes while going and for
forty-two when returning a verdict for one thousand dollars was
excessive and should be reduced to five hundred dollars. Rail-
road Co. v. Engle, 878.

WATERWORKS AND WATER SUPPLY.

1. Waters. Water meters. Defects. Estoppel. Accord and satisfaction.
In a suit by a waterworks company against a consumer on a con-

tract for water furnished, the mere negligence or lax business
methods of the waterworks company in failing to put in a correct
meter to properly register the amount of water used, will not
estop the company from collecting the amount actually used
unless it can be shown that the consumer was misled thereby to
its injury. Waterworks Co. v. Railroad Co., 504.

2. Same.
If the parties to the contract, knowing that the meter was out of

commission, had agreed to estimate the amount due and accepted
the estimate as the total amount, in such case there would be
an accord and satisfaction. 1b.

3. Defective meter. Mode of computation.
Where a water company contracted in writing with a consumer to

furnish it water, payments to be made monthly, and in such
contract there was a provision, that, if in any month the meter
failed to correctly register the amount of water used, the amount
used the month preceding and the month following the month in
which the meter failed to register should be averaged, and the
average taken to be the amount used during the month in which
the meter failed to register, and the meter failed to register for
fifty months. In such case the provision for the ascertainment
of the amount of water used, did not furnish an exclusive basis
for the proof of the amount furnished during the fifty months in-
volved in the controversy, during which the meter was out of re-
pair. Ib.

WATERWORKS AND WATER SUPPLY.

WATERWORKS AND WATER SUPPLY—Continued. 4. Water. Contract. Defective meter. Mode of computation. Where the meter registering the amount of water delivered to the

consumer was out of repair for a period of fifty months and did not correctly register the amount of water which passed through it and was supplied to the consumer during this period, and the water company had furnished the consumer, on the first of each month, a statement of the amount due for the preceding month, which statement in every instance charged the consumer with the same amount of water and on each statement was the word “Estimated," and as a matter of fact the water company furnished the consumer water largely in excess of the amount charged, it was permissible for the water company as a matter of evidence, in estimating the amount actually used, to take the last known correct amount which passed through the meter in one month, and the amount which passed through the meter per month after it had been replaced by a correct meter and to average between these amounts for each of the fifty months during which the meter

was out of order. Ib. 5. Water companies. Charges. Penalties. Forfeiture of interest. Code

1906, section 2678. Usury. A water company furnishing water to the public has no power

to enforce a rule that, if the bills for water furnished during a month are not paid by a certain day of the next month, ten per cent shall be added thereto, as the only damage which the law contemplates that a creditor will suffer by reason of the mere withholding of money due, is legal interest thereon. Ford v. Wa

terworks Co., 717. 6. Same. The attempt of a water company to collect ten per cent damages

upon overdue bills does not subject the company to a forfeiture of all interest under Code 1906, section 2678, as this section of the Code covers only two classes of cases; first, where parties contract for a rate of interest in excess of that allowed by law; and second, where the creditor receives a rate of interest greater than that

allowed by law. Ib. 7. Municipal Supply. Service pipe. Repair. Streets. Where a city owns the waterworks supplying water to consumers,

in the absence of an ordinance requiring or permitting householders to repair service pipes located in the streets, it is the duty of the city and not of the consumer to repair such pipe. Van Norman v. Waterworks Co., 736.

WEAPONS-WITNESSES.

WEAPONS.

.

1. Carrying concealed weapons. Evidence. Threats.
It is not necessary, in order that one who has been threatened with

an attack may be justified in carrying a concealed weapon, that he
shall anticipate the attack at a particular time or place. Harvey

v. State, 544.
2. Same.
Nor is it necessary for one who has been threatened and in good

faith anticipates an attack to disarm himself, whenever he is
temporarily so situated that for the time being he is in no im-

mediate danger of an attack. Ib.
3. Deadly weapons.

Pocket knife. Code 1906, section 1110. Constitu-
tion.
A pocketknife is a deadly weapon under the provisions of Code

1906, section 1110, making it a criminal offense to exhibit a deadly
weapon in a rude, angry or threatening manner in the presence
of three or more witnesses. State v. Ware, 634.

WILLS.

1. Construction. Testator's intent.
A will should be so constructed as to carry out the intent of the

party making it. L'Hole v. Roca, 121.
2. Laws governing. Disposable property."

*
A will made by a resident of Louisiana, conveying the “disposable

portion of all” the property that she owned at the time of her
death, conveys the whole of her property situated in the state
of Mississippi; though under the laws of Louisiana her “dis-
posable property” was only one-third of her estate, the laws of
Mississippi controlling as to the property located in this state. Ib.

WITNESSES.

1. Criminal law. Objections to testimony.
It is too late to make an objection for the first time on a motion

for a new trial, that a witness in a criminal prosecution was not
of sufficient intelligence to appreciate the obligations of an oath.

Smith v. State, 330.
2. Former conviction. Explanation.
Where an accused while being exmined as a witness in his own

behalf testified that he had been convicted of another crime, it

WITNESSES.

WITNESSES—Continued.

was not error to refuse to allow him to explain his former con-
viction, as this would place upon the jury the burden of retrying
an issue already adjudicated. Ib.

a

3. Criminal law. Appeal. Bill of exceptions. New trial. Error.
Where a criminal case was called for trial and defendant announced

that he was not ready on account of the absence of witnesses
who had been duly summoned, and at the suggestion of the judge
the trial was proceeded with, upon the understanding that the
witness would be brought into court in time to testify, and the
record nowhere discloses what the witness would have testified to,
so that the supreme court may judge of the materiality thereof
and no bill of exceptions discloses that these witnesses were not
present while the defendant was introducing his witnesses; nor
that defendant interposed any objection to proceeding with the
trial in their absence, such facts cannot be shown on a motion for
a new trial, as this is not the manner in which to reserve a point
of this character. Brumfield v. State, 610.

4. Objections. Bill of exceptions.
Where a defendant rested his case without interposing any objec-

tion to continuing the case on account of his absent witness or
at least the bill of exceptions does not disclose such an objection,
he cannot avail himself of this objection in the supreme court
on appeal. 16.

1

5. Same.
Where the record does not disclose what the testimony of absent

witnesses would have been, the supreme court will not reverse
on account of the absence of such witness, unless it appears from
the record that the testimony was material and there is no presump-
tion in the absence of a showing in the record that such testimony
was material. Ib.

6. Misconduct of district attorney. Cross-examination of accused.
It was improper for the district attorney on cross-examination

of accused on trial for forgery to ask him whether it was not a
fact that he was charged in the indictment here of forgery, and
uttering forged deeds and other county warrants and that you
were run out of the parish in which you were born and raised on
account of land over there. Saucier v. State, 647.

WITNESSES.

WITNESSES—Continued.

7. Same.
Where the guilt of the defendant is clearly established and the jury

refused to accept the explanation of the accused and the court
gave proper instructions and the trial was otherwise fairly con-
ducted, the court will not reverse the case for improper questions
by the district attorney. Saucier v. State, 647.

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