sales, bringing his total earnings up to an average of $15 or $16 a week; his testimony, as a whole, making it reasonably certain that he had never earned more than, if as much as, $75 a month. Some time in 1900 he moved into the home in which he was living when the fire occurred, being the one side of a double tenement one-story cottage, and consisting of four rooms, viz., a front room or parlor, measuring 12x13.5; a bedroom immediately behind, and of the same size as, the parlor; a dining room behind the bedroom, measuring 11.6x13.9; and a kitchen behind, and of the same size as, the dining room. For this house, which was situated in a neighborhood inhabited by poor people, the plaintiff paid $10 a month rent. In April, 1901, his wife being sick, he sent her and his child across the lake, where he paid $10 a week for their support. In May following, according to their testimony, one Berges, who was employed by the defendant as a solicitor, suggested that plaintiff should insure his furniture, but the plaintiff demurred; saying that, his wife being sick, he needed all of his money, and that he did not feel able to pay the premium. He was finally prevailed upon, however, and, Berges having looked at the property and having fixed the amount, the policy was issued on May 14, 1901, for $2,500, and the premium, $12.50, was paid about 15 days afterwards. The plaintiff states that on the evening of the fire he had left his house about half past 6 o'clock, and had gone to a club, where he was engaged in playing cards with some of his friends, and that, whilst so engaged, between 11 and 12 o'clock that night, he was called by a boy named Barbier, who lived at the house of his mother-in-law, and was told that his residence was on fire, and that he went to the scene of the fire and fainted. He further states that the next morning a man named Mangson, with whom it does not appear that he had any previous acquaintance, introduced himself as an adjuster, though not pretending to represent the defendant, and said to him: "I know you are all right. I will fix your loss and have it adjusted in sixty days" --and that he and Mangson then made up the proof of loss, with the schedule annexed, which was subsequently presented to the defendant. The schedule foots up $3,241.66 as the value of the furniture, paintings, brica-brac, statuary, wearing apparel, etc., contained in his house, and covered by the policy here sued on, which, in the proof presented to the defendant, he swore was a total loss; stating in his affidavit that no property saved had been in any manner concealed, and that no attempt had been made to deceive the defendant as to the amount of said loss. The plaintiff, explaining how this schedule had been made up, further states that when the policy was issued, to wit, May 14, 1901, he was told by Berges, the solicitor, that he had better make an inventory, in order to be able to prove his loss in the event of a fire, and that he and his wife thereupon went through their house, from one room to another, and made a detailed inventory of its contents, appraising each article at its cost price. We make the following excerpt from his testimony on this subject: "Q. What time did you begin to do it, about?" (Referring to the making of the inventory.) "A. Well, after I was told that I would have to make proof of loss, the same as a store would have kept books, I said to my wife, 'We have got a policy, and, if anything was to occur, this policy is not good, unless you know what was in the house. We have to do the same as if taking stock in the store.' Q. And you took stock? A. Yes, sir. * * Q. Who made this book?" (Referring to the inventory.) "A. Myself. My wife called off some things, and I would look at it and put it down the same as taking stock. Q. Your wife called it off to you? A. Yes, sir; how much would this and that cost. Q. Say, for instance, you took this book and went to the first room, twenty-six yards of matting. You and your wife agreed that there were twenty-six yards? A. Yes, sir. Q. And you put down what you paid for it? A. Yes, sir. Q. Then you came to two Smyrna rugs. Your wife called that off? A. I looked at it myself. We would go along, and we looked at the stuff, which cost so much. That would be what it cost-two rugs $6 apiece. That would be $12. Q. You did all the writing? A. Yes, sir. Q. Whatever was called out, she called out? A. We looked at it. We went over it together. Q. How many days did it take you to make an inventory in the first room? A. I don't know. We would work two or three hours after supper. We didn't finish the first room in two or three hours. We may have started on a Monday, and I think on Sunday we worked four or five hours. I think it took about twelve to fourteen hours altogether. Q. You went from one room to the other? A. Yes, sir. Q. You and your wife? A. Yes, sir. Q. And you did that at the time you got your policy? A. Yes, sir." The peculiarity about this is that the plaintiff also testifies most positively and circumstantially that his wife and child went over the lake in April, before the policy was taken out, and did not return to the city until some time in July, a month after the fire, and there is no attempt to reconcile the contradiction. Among the articles included in the inventory, the making of which is thus described, is a piano, for which the plaintiff swears that he paid one Isaac Levy $300 on the 24th of May, 1901, and he produces a bill purporting to have been made out and receipted by Isaac Levy as of that date. Isaac Levy is, however, not produced; and it will be remembered that it was about that time that, according to his testimony, the plaintiff needed all of his money for his sick wife, and was obliged to avail himself of a delay of 15 days in the matter of the payment of the premium, amounting to $12.50, on the insurance which he had just taken out. Another marked peculiarity about the piano is that it is said to have been purchased May 24, 1901, and yet it figures on the inventory which the plaintiff swears he made a week before of the effects then in his house. And finally, upon that subject, Mr. Uthoff, who appears to be qualified to judge of such matters, valued the piano, judging from the name plate, frame, and part of the front, which were not consumed, at $40. Other articles included in the inventory, and said to have been purchased from plaintiff's brother, who keeps a secondhand furniture or "antique" store, are as follows: On June 3, 1899: One large oil painting, scene, "Battle of Paris" $ 75 00 35 00 Oil painting and frame, "Driving Cows to Pasture" 38 00 Oil painting and frame, "Musical Afternoon' 35 00 $183 00 The persons from whom these purchases are said to have been made, with the exception of the plaintiff's brother, seem to have disappeared, leaving no trace behind, and were not produced on the trial. The plaintiff's neighbors, however, who lived in the other side of the tenement, were called as witnesses for the defense; and one of them (a German woman) testified that she was in the habit of going into the plaintiff's house every day, and that the furniture was all plain and cheap, such as poor people use; that the plaintiff's wife dressed plainly, and had no jewelry, except a pair of earrings, and perhaps a ring; and that the pictures were of the cheapest kind. It is true that she showed that she knew nothing about fine pictures, and her testimony on that subject, taken alone, would be of little value; but another witness, who inspected the house after the fire, testified that the pictures that he found there were cheap chromos, worth about $4 or $5 a set; that the bedroom furniture, said to have been walnut, or veneered walnut, was stained poplar, etc. And another witness testified that a wagon load of furniture was taken away after the fire. There is but one other matter which need be specially noticed. The witness Berges was in defendant's employ for a few months, and solicited the insurance out of which this litigation has arisen. Whether he was discharged, or left the defendant's employ of his own accord, does not appear. Upon his cross-examination he testifies as follows: "Q. How many risks did you insure with the Palfrey Agency? A. I don't know, sir. Q. How many, other than this? A. I don't know, sir. Q. Was it more than three? A. I don't know. Q. Was it as many as three? A. I am sure I did. * * * Q. What other risks did you take? A. I don't know. Q. Was it five, six, or seven? A. I know I furnished Mr. Palfrey a memorandum, and I had to file suit for my commission. Q. Did you file as many as ten? A. I don't know. Q. As * many as twenty? A. I couldn't tell you Q. You don't know whether you filed one or one hundred? A. I know I filed more than one. Q. You don't know how many more than one? A. No, sir." There are some other facts which might be commented upon if any good purpose would thereby be subserved, but we forbear. It is sufficient to say that they all lead to the conclusion that but a small proportion of the property which the plaintiff pretends to have lost ever belonged to him, or was destroyed by the fire at his house. And that being the case, his deliberate and fraudulent attempt to impose upon the defendant liability for a loss which he has not sustained, according to the terms of the contract on which he sues, defeats his right to recover. Regnier v. Ins. Co., 12 La. 336; Claflin v. Ins. Co., 110 U. S. 81, 3 Sup. Ct. 507, 28 L. Ed. 76. Judgment affirmed. (109 La. 892) SOUTHWESTERN TELEPHONE CO. (Supreme Court of Louisiana. March 2, 1903.) TELEPHONE COMPANIES-CONSTRUCTION OF LINES-EXPROPRIATION OF 1. The language, "along and parallel to any of the railroads in the state," as used in the act of 1880, p. 168, No. 124, does not confer upon the telephone companies the right to construct their lines upon the railroads, but it does authorize them to construct such lines upon the right of way of the railroads in the state. 2. The difference, in the matter of convenience or inconvenience, to the defendant, as the plaintiff's line may be established upon the one side or the other of its track, seems to be hypothetical, rather than real, and the evidence does not justify the conclusion that any error has been committed in the valuation of the right of way expropriated. (Syllabus by the Court.) Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge. Action by the Southwestern Telephone Company against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Alexander & Wilkinson and Lathrop, Morrow, Fox & Moore, for appellant. Sutherlin & Barret and Monk & Palmer, for appellee. MONROE, J. The defendant appeals from a verdict and judgment expropriating a right of way for the plaintiff's poles and wires on the east side of its (the defendant's) right of way from the Sabine river to Shreveport, and thence to the Arkansas line, and from De Quincy to Lake Charles-a total distance of 248 miles-and assessing the right thus expropriated at $10 a mile. The propositions relied on for the reversal or amendment of the judgment appealed from will be considered seriatim. 1. That the plaintiff has no right to expropriate the property in question, because the law under which it proceeds (Act No. 124, p. 168, of 1880, and section 5 of Act No. 125, p. 170, of 1880) authorizes the construction and maintenance of telephone lines "along and parallel to any railroads in the state," but not upon such roads. The answer to this is that the plaintiff does not propose to establish its poles and wires upon the defendant's railroad, but, as the judgment reads, "along on the east side of the railroad, within three feet of the outside of the right of way." 2. That the plaintiff's poles and wires should be established upon the west, and not upon the east, side of its (defendant's) track, as likely thereby to occasion less inconvenience. It appears from the evidence that the wires of a telegraph company are already strung on the western side of defendant's track, and the judgment, as rendered, requires that the plaintiff's poles and wires shall be so erected and maintained upon the east side "as not to interfere in any manner with the conduct, traffic, and management of said railroad." The difference, in the matter of convenience or inconvenience, to the defendant, as the telephone line is established upon the one side or the other of its track, seems to us to be rather hypothetical than real. Should the situation so change as to make the plaintiff's line, as located by the judgment appealed from, an actual obstruction to the defendant in the use of its property and the discharge of its functions, the courts will, no doubt, afford such relief as the occasion may require. 3. That the amount allowed is insufficient. Upon the former trial the jury awarded $5 a mile. The verdict and judgment appealed from allow $10. The evidence is conflicting; some of the witnesses testifying that the right expropriated is not worth more than $2.50, and others fixing it at $3,000, a mile. The land, for the most part, without the timber, is worth little or nothing-say, 50 cents an acre. The cost of clearing it was from $30 to $35 an acre. The cross-arms on the plaintiff's poles are to be 6 feet long, so that its line will occupy a strip 6 feet wide on the eastern edge of the right of way; being about 1% miles to the acre. If, therefore, to the value of the land we add the average original cost of clearing, and charge the plaintiff for the proportion to be occupied by it, the amount to be paid would be $23.45 per mile. It is to be remembered, however, that the plaintiff does not acquire an absolute title to the property. It merely gets a right of way and of use, in the exercise of which it is not to interfere with the defendant's use of the same property. Thus, whilst the cross-arms on its poles are to be 6 feet long, its poles, at intervals of 200 feet, are to occupy spaces only 5 or 6 inches square, and between the poles and under the cross-arms and the wires the defendant may excavate and operate at will. More than this, the plaintiff, by being placed upon the edge of the right of way, derives but a partial advantage from the clearing, and must protect itself from the adjacent timber. It also appears that the obligation will rest upon the plaintiff, for its own protection, to keep its right of way clear of undergrowth. Under these circumstances, we are not prepared to say that the amount allowed is insufficient. The judgment appealed from is therefore affirmed. (109 La. 894) SPROWL et al. v. LOCKETT et al. (No. 14,333.)* (Supreme Court of Louisiana. Jan. 5, 1903.) LOST WILL-REVENDICATION-PETITIONSUFFICIENCY. 1. Persons claiming as testamentary heirs, under a will which they allege has been lost or destroyed, have no standing in court to revendicate the property claimed, in the absence of an averment that the execution of such will has been ordered by a competent court. (Syllabus by the Court.) Appeal from judicial district court, parish of Red River; Charles V. Porter, Judge. Petition by L. P. Sprowl and others against N. M. Lockett and others, for revendication of property under a lost will. Exception of cause of action, maintaining plaintiffs' appeal. Affirmed. no John Daniel Roach, for appellants. Wilkinson & Carter (Alexander & Wilkinson, of counsel), for appellees. MONROE, J. The relevant allegations in the petition in this case are, substantially, as follows: That petitioners are the only surviving children of Wm. Sprowl, who died insolvent in the parish of Red River; that his brother, Jonathan Sprowl, with his wife, Nancy Barker, in 1862, by authority of a special statute, and by notarial act, adopted Alice L. Hammett; that in January, 1864, Mrs Sprowl died without issue; that in July of that year Jonathan Sprowl married Mrs. Nancy M. Long, and thereafter, in community with her, acquired property in this state; that in January, 1869, Miss Hammett married A. J. Lawson; that the adoption of Miss Hammett was illegal originally, because not authorized by the general law, but, if legal at all, ceased of effect after the death of the adoptive mother, and the emancipation, by marriage, of the adopted daughter, who, by reason of those events, lost her right, if any she had, to inherit from the adoptive father to the prejudice of heirs of the blood or testamentary heirs, and could not inherit the property ac quired by him during the second community; that, "prior to his death," Jonathan Sprowl made a will, leaving all of his property to Rehearing denied March 16, 1903. the children of his brother William, which will has been "lost, destroyed, or burned"; that he died in 1877, and that petitioners were entitled to be put in possession of his estate, but that his widow and the husband of his adopted daughter were appointed administrators, and administered the estate; that in 1882 the widow and adopted daughter, by notarial act, partitioned the estate between them, and that all of said acts were illegal and in fraud of petitioners' rights, because, under the law of Louisiana, "no adopted heir can inherit to the prejudice of the forced, or testamentary, heirs, or heirs of blood relations"; that in 1867 A. J. Lawson sold to Jonathan Sprowl certain land (describing it) for a nominal sum, and that in 1874 Sprowl sold said land, with other land and movables, to Mrs. Lawson, and that both sales were simulated for the purpose of turning over to Mrs. Lawson the interest that Sprowl intended that she should have in his succession; that, after the death of Jonathan Sprowl, his widow married J. M. Lockett, and that she and Lawson leased to third persons a plantation that had belonged to the community existing between her and the decedent, and that, after the death of his wife, Lawson caused his children to be put in possession of the property of the estate of said decedent. They pray for citation and judgment against Mrs. Lockett, Lawson, individually and as tutor, and against certain of his children who have attained majority, for the property left by Jonathan Sprowl, with the revenues thereof, and directing that certain of the defendants be required to answer interrogatories on facts and articles. The defendants filed an exception of no cause of action, which was maintained, and the plaintiffs have appealed from the judgment. The only property claimed is that which is said to have belonged to the community which existed between Jonathan Sprowl and his second wife, now Mrs. Lockett, who is made defendant. It is not, however, alleged that she has taken possession of any more than the property to which she is entitled as partner in the community. It is alleged that Jonathan Sprowl made a will which has been lost or destroyed, and, as we understand their allegations, that plaintiff's are claiming under that will, and not as legal heirs. But it is not stated whether the will was lost or destroyed before Sprowl's death or after, or whether by him or by some one else, and there is nothing purporting to connect any of the defendants with its loss or destruction, unless the allegation that, after the death of the alleged testator, his widow and his adopted daughter, with the husband of the latter, made "a minute and accurate search among all" of his papers, can be so considered, it not being suggested, however, that the parties mentioned found anything. There is no intimation in the petition that the will referred to has ever been proved or offered for probate, nor is it alleged that the special statute authorizing the adoption of Miss Hammett was obnoxious to the State or Federal Constitutions, or that, in the manner of her adoption, there was any failure to conform to that statute. The law of this state provides that: "No will can have effect, unless it has been presented to the judge of the parish in which the succession is opened; the judge shall order the execution of the testament after its being opened, and proved, in the cases prescribed by law." Rev. Civ. Code, art. 1644; Aubert v. Aubert, 6 La. Ann. 104; Succession of Earhart, 50 La. Ann. 526, 23 South. 476. In Clappier et al. v. Banks et al., 11 La. 595, it was said: "In an action of revendication, persons claiming to be instituted heirs under a will, alleged to be lost or destroyed, will not be allowed to prove its existence, loss, and contents in the district court, when it has never been admitted to probate." See, also, State ex rel. Remendo v. Judge, 17 La. Ann. 189. Counsel for plaintiffs says, in his brief, "the petition to probate the will was filed after this suit." We must, however, deal with the case before us upon the basis of the allegations contained in the petition, and, so doing, in view of the law and precedents cited, conclude that the plaintiffs have no present standing in court for the purposes of the demand made by them. The judgment appealed from is, therefore, affirmed, at the cost of the appellants. (109 La. 897) SIMPSON et al. v. CITY OF NEW ORLEANS et al. (No. 14,346.)* (Supreme Court of Louisiana. Feb. 16, 1903.) MATERIAL LIEN-RIGHTS OF PARTIES-PAYMENT-NOTE-FORGED INDORSEMENT. 1. A furnisher of materials with privilege on a building may look to the amount due to the contractor, his debtor, under the building contract, and is not bound to have recourse to the surety on the contractor's bond; and it makes no difference that the contractor has assigned his right to payment under the contract. 2. Where a debtor makes a note to his own order, and indorses it, and forges indorsements on the note, so as to give it negotiable value, the signature of the maker himself being of no negotiable value, and thereupon delivers the note to his creditor in payment, and the latter indorses and negotiates the note, the transaction does not constitute a payment. The creditor is bound to restore the amount received from the negotiation of the note. As obtained on the note delivered to him by the debtor, he at no time had the right to keep the money. If it so happens he cannot return same, his obligation to refund stands in the place of the money itself. (Syllabus by the Court.) Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge. *Rehearing denied March 16, 1903. 1. See Mechanics' Liens, vol. 34, Cent. Dig. § 149. Action by O. H. Simpson and others against the city of New Orleans and others. Judgment for plaintiffs, and certain defendants appeal. Affirmed. Buck, Walshe & Buck and Dufour & Dufour, for appellants Germania Nat. Bank and George L'Hote. William S. Benedict and John G. Robin, for appellees. Edward L. Simonds, for appellee W. A. Simonds. PROVOSTY, J. Charles H. Charlton, Jr., contracted with the city of New Orleans for the construction of two schoolhouses, and gave bond for the faithful performance of the contract; and contract and bond were duly recorded, all according to law. The bricks, lime, cement, etc., for the buildings he obtained from Charles A. Kent on credit. Shortly after beginning work on the buildings, and while his account for materials was running with Kent, he assigned to George L'Hote all his rights to payment under the contract, and L'Hote made a subassignment of the same rights to the Germania National Bank. Kent recorded his claim for the preservation of his furnisher of materials' lien, and shortly thereafter went into bankruptcy; and the present suit is instituted by O. H. Simpson and others, the trustees of his bankruptcy, to make good the claim for said materials so furnished. The defendants are Walter A. Simonds, the city of New Orleans, George L'Hote, and the Germania National Bank. Between plaintiff's and Simonds there is no contest. Plaintiffs admit the claim of Simonds, and concede to it a right of preference. The city of New Orleans also is eliminated from the controversy. By agreement of parties, the balance due by her was paid over to the Germania Bank, to be held subject to the decision of this suit, and she was released from all further responsibility. L'Hote and the Germania Bank stand together, and may be considered as one party. After pleading the general denial, the defendants George L'Hote and the Germania National Bank allege the transfer made to them by Charlton of his right to receive payment under the contract, and then proceed as follows: "Further answering, defendant avers that the said assignments were made to the knowledge of the said Kent, and the said Kent acquiesced therein, and that said Kent cannot be heard at this time to question defendant's title, nor that of his assignee, to the payments resulting from said assignment. "Further answering, defendant avers that, if the said Kent did furnish the said Charlton with any of the material charged herein, he furnished same with the knowledge that the said Charlton had assigned his payments to defendant, and defendant had, in turn, assigned same to the Germania National Bank, and acted solely on the personal responsibil |