pellant, if any, growing out of it, and the liability of appellee to appellant, if any has accrued, for the loss and damage complained of and set out in the declaration. A demùrrer to the declaration was interposed, and was sustained by the court below, and the case comes to this court, that the legal questions raised by the pleadings may be adjudicated.

It is contended by the appellant that the water company is a public corporation of this state, and not a mere aid or arm to the municipality of Jackson, exercising a governmental function; that it is a corporation for gain, engaged in a public business, and charged with obligations and duties to the public within its locality; and appellant holds that the contract with the city was made for his benefit, and for the benefit of the other inhabitants and citizens of the city, in consideration of the special tax he and they had to pay by reason of the contract, and also by reason of the acceptance of the valuable franchises conferred by its charter, and these considerations raised a public duty on the part of the water company to the public, and are sufficient to entitle appellant to maintain his action. It is contended that it was the duty of said water company under its contract to keep all its hydrants supplied with water for fire service, and that the maximum pressure on the water in the hydrants should be maintained at all times, and be applied in case of fire, and that, if this duty had been performed, appellant's property would have been saved from destruction; that the water company failed and neglected to perform this duty, and the destruction of appellant's property was the direct and proximate result of such failure and negligence; and that appellee is bound, under its contract with the city of Jackson, made, as contended, for appellant's benefit, to reimburse appellant's loss. For appellee it is contended that the city of Jackson had no authority in law to make the contract in controversy otherwise than for itself, if it had attempted to do so, which is denied, and that the contract imposed no public duty for the violation of which a taxpayer or inhabitant, when damaged thereby, may maintain an action; that there is no privity of contract between the water company and taxpayers or inhabitants; and that the fire hydrants of the company were rented by the city for use by its own fire department, and in performance of its governmental function, and as a separate entity from the taxpayers and inhabitants. We fully recognize the rule of law as to privity of contract invoked by counsel for appellee, as also the exception thereto contended for by counsel for appellant, that a person not a party to the contract may maintain an action thereon if the contract clearly and explicitly shows that it was made for his benefit.

In this case, however, we are clearly of opinion that the contract before us im

poses no public duty on the part of the water company to a citizen or inhabitant for the nonperformance of which an action of tort can be maintained, and that the contract does not show, in express terms or by fair intendment, that it was made for the benefit of the citizen or inhabitant, in the sense that would enable him to maintain an action thereon. The demurrer was properly sus tained. Let the judgment of the circuit court be affirmed.

(78 Miss. 243)

SMITH, Sheriff, etc., v. WILLIS. (Supreme Court of Mississippi. Nov. 26, 1900.) LEVEES-TAX-LANDS-BENEFITS-CHANGE OF

COUNTY-LEVEE DISTRICTS.

1. Where land situated in a county wherein there was no tax for levees was subsequently included by act of the legislature within the boundaries of another county, comprised within a levee district wherein there was a levee tax, such land was subject to the tax.

2. Const. 1890, § 238, prohibits the taxation of any land between the levee and the Mississippi river for levee purposes; section 228 recognizes the "Mississippi levee district," as cre ated by the legislature, and provides that it shall remain as created until changed by law; districts, even by the legislature, except after and section 234 prohibits any change of levee publication of the proposed bill for four weeks. Held, that land in a levee district not actually benefited, but, rather, injured, by the levee, was not thereby exempt from the levee tax, where it did not come within the provisions of section 238, since to hold otherwise would be an attempt on the part of the court to legislate part of a district out of the operation of a tax thereon.

Appeal from circuit court, Issaquena county; W. K. McLaurin, Judge.

"To be officially reported."

Action by Mrs. Bettie B. Willis against R. M. Smith, sheriff, etc., to recover taxes paid under protest. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Walter Sillers, for appellant. Dabney & McCabe, for appellee.

CALHOON, J. The land of Mrs. Willis had been in Warren county, but was taken from Warren and put in Issaquena in order to compensate that county for territory taken from it for the construction of the county of Sharkey. Acts 1876, p. 58, § 3. Afterwards all of Issaquena was put in the Mississippi levee district. Acts 1877, p. 73, § 1; Id. p. 77, § 12. Thereupon the tax collectors proceeded to collect the levee tax from her land, though while it was in Warren it was in no levee district, and therefore free from that tax. Having paid the levee tax under protest, she sued to recover it back; and the learned court below sustained her claim for recovery on the ground, no doubt, that although her land is in the levee district, all of which is taxed by the letter of the law, nevertheless she ought not, according to the reason and spirit of it, be made to pay, because the land is to the south and east of the extreme south

ern end of the levee, and actually injured by it, instead of receiving any benefit. Her contention is that, being in fact entirely unprotected, the courts should hold the land, according to the purpose of the laws and of the constitution, within the exemption of lands between the levee and the river, though not in fact between them. Const. 1890, 8 238, expressly prohibits the taxation for levee purposes of any land between the levee and the river. But section 228 recognizes the "Mississippi levee district" as formerly cre ated by the legislature, and provides that it shall remain as so created until changed by law. Section 234 prohibits any consideration of a change of the boundary of the district, even by the legislature, except upon four weeks' previous publication of the proposed bill; and, besides, other restrictions are thrown around such legislation. It would seem to result, logically, from the argument of the learned counsel for Mrs. Willis, that, in any case of land directly east of the main line of the levee, which, for any reason, it did not in fact protect or benefit in any degree, and such instances, no doubt, may be found, the courts should hold such land not liable to levee taxation. From such a position it is inescapable that we should assert a doctrine of comparative benefits and graduation of levee tax servitudes. We may not do this. When the constitution and the laws put an entire county in a district for local taxation, the courts cannot legislate any part of it out of their operation. The only appeal Mrs. Willis has must be to the lawmaking department of the government. Reversed and remanded.

the term of two years. An indictment was presented against him on the 11th day of September, 1900, charging him with killing and murdering Henry Williams on the 1st day of August, 1899. In due time, before assignment, the defendant presented and had a motion to quash filled, setting out that the grand jury that found the indictment against him was not a legal grand jury, for the reason that the names of the grand jurors were not advertised as required. On the trial of this motion, an admission was made and incorporated in the note of evidence, showing that W. H. Baker, whose name was drawn as a grand juror, was not advertised with the names of the other members of the grand jury. It further appears from this admission that Baker did not serve as a grand juror; that he was excused by the court previous to the impaneling of the grand jury on account of illness. It is made to appear by the minutes that this motion was taken up for trial, tried, and overruled, and to this ruling of the court the defendant excepted, and reserved a bill of exceptions. There is no bill of exceptions before us forming part of the transcript.

In our view, the court's action in overruling the motion to quash is not brought up in the manner required. The evidence on which the motion is grounded is not regularly on appeal for review, as it is not incorporated in a bill of exceptions, as required. State v. White, 37 La. Ann. 172.

The case being of great importance to the defendant, we none the less gave our best attention to the point raised in his behalf on the motion to quash the indictment. We have not found that the court's ruling, in refusing to sustain the motion to quash, was prejudicial to the accused. By the terms of the jury act of 1898, the grand jury is impaneled from 20 names. The 12 names constituting the body by which the defendant was indicted had all been regularly drawn and advertised. The fact that the name of one of the remaining 8 was not advertised was not, in any manner, prejudicial to the cause of the defendant. He (this intended grand juror) was not, after he had been excused, even one of the remaining 8 originally drawn, and forming the grand jury list from which to draw the grand jury of 12.

The judge of the district court unquestionably had the authority to excuse for cause one of the number of the original grand jury list from service. It happened that the juror's name had not been advertised, although his name had been regularly drawn to serve. His discharge, for good cause, was more than sufficient to put an end to every possible objection. The accused cannot complain. A presumption of correctness attaches in the process of procuring a grand jury, and continues until error is shown. As far as the record discloses, he had a legal trial. It only remaing

for us to affirm the verdict, judgment, and sentence. For the reasons assigned, the verdict, sentence, and judgment appealed from are affirmed.

(104 La. 67)

STATE v. SEIPEL. (No. 13,396.)1 (Supreme Court of Louisiana. Jan. 22, 1900.)

FALSE PRETENSES-INDICTMENT.

An indictment for obtaining money under false pretenses, which, in substance, avers that the accused did unlawfully, falsely, and designedly pretend that he had certain moneys deposited to his credit in bank, against which he could draw a check, and upon which he did draw a check on which he obtained money, is sufficient averment, notwithstanding it does not allege that the check was presented and payment refused; it being averred that the accused had no money deposited or to his credit in bank, nor any moneys therein upon which he could draw a check, and that same was a false pretense, as the accused well knew at the time, and that by means of said false pretense he did then and there feloniously and unlawfully obtain the sum of money named.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Iberia; Félix Voorhies, Judge.

Harry Seipel was convicted of obtaining money under false pretenses, and appeals. Reversed.

Todd & Davis, for appellant. Milton J. Cunningham, Atty. Gen., and James Simon, Dist. Atty. (Charles M. Cunningham, of counsel), for appellee.

WATKINS, J. The defendant was tried and convicted of a charge of obtaining money under false pretenses, and sentenced to imprisonment in the state penitentiary for 12 months, and from that verdict and sentence he prosecutes this appeal.

The charge with which the defendant stands indicted was for securing $50 in currency on his check on the State National Bank of New Iberia, and the grounds upon which his counsel rely for a reversal of the sentence are, in substance, (1) that the indictment does not charge that the defendant claimed to have money in the bank at the time he drew the check, but, on the contrary, it expressly states that he claimed to have had money there; (2) that the indictment fails to state in whose favor the check was drawn, or that the check was indorsed to party claiming to have been defrauded, or that the check was presented at the bank and refused payment.

At the incipiency of the proceedings, and before the jury was impaneled, defendant's counsel filed a motion to quash the indict

the check was drawn, nor is it alleged that he pretended that said check was at the time good, or that it would be paid. (2) Because all pretenses, even if false, that defendant had had money in the State Bank of New Iberia, and not that he then had money, could not mislead. (3) That it is not alleged that the said check was drawn in favor of Wallet, nor indorsed to him, nor that it was signed by the defendant, nor that it was delivered to him when the money is alleged to have been obtained, but that, on the contrary, it is alleged that he pretended he did give said check to Wallet at a time not stated in the indictment, and that said allegation is a mere allegation of a promise, and not of a false pretense. (4) That there is no allegation that defendant intended to defraud Wallet of the said money, and that an allegation or attempt to defraud, without alleging anything to defraud out of the very money in question, will not support the indictment for obtaining money under false pretenses. (5) That there is no allegation as to ownership of the money in question; that, while the said indictment alleges something not therein specified to be the property of Wallet, it does not state that said money belonged to him." For the foregoing reasons, the motion shows that the indictment is insufficient, and should be quashed.

This motion was subsequently tried and overruled, and to the ruling of the court counsel retained a bill of exceptions. The following is an extract from the indictment, to wit: "That one Harry Seipel, 9th day of September, 1899,

on the devis

ing and intending to cheat and defraud one Walter J. Wallet of his money, goods, and chattels, unlawfully did falsely and designedly pretend to the said Walter J. Wallet that he had certain moneys deposited and to his credit in the State Bank of New Iberia, which said bank is situated and located in the town of New Iberia, against which he could draw sight drafts; and that he desired him, the said Walter J. Wallet, to let him have the sum of fifty dollars, for which he would give him, the said W. J. Wallet, the sight draft drawn by him on said State Bank, and against said fund in the said State Bank of New Iberia, for said sum of fifty dollars, which he, the said Harry Seipel, did then and there draw and execute against said State Bank of New Iberia for the said sum of fifty dollars, and on which he secured the said sum of fifty dollars from the said W. J. Wallet; whereas, in truth and in fact, the said Harry Seipel had no moneys

extract, to wit: "(1) That there is no allegation therein that the defendant pretended to the said Wallet [the party named in the indictment as the person upon whom the fraud was practiced] that he had any money in the State Bank of New Iberia at the time

1 Rehearing denied March 5, 1900.

of New Iberia, nor any moneys therein upon which he could draw sight drafts; which said pretenses he, the said Harry Seipel, then and there well knew to be false, and, by color and means of which said false pretenses he, the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J. Wallet the sum of

fifty dollars, lawful currency of the United States of America, and thereupon gave to said W. J. Wallet the said draft for said sum, drawn against said State Bank against moneys he pretended to have had in said bank; being then and there the property of said Walter J. Waliet, with intent to cheat and defraud him, the said Walter J. Wallet, to the great damage of said Walter J. Wallet," etc. The motion to quash proceeds upon the theory, mainly, that the indictment fails to aver that the defendant claimed that he had any money in the State Bank of New Iberia at the time the check was drawn, and that it is not alleged therein that the defendant pretended that the check given to Walter J. Wallet was good at the time it was given or that it would be paid.

* *

The extract made from the indictment clearly shows this is a mistake, as the same, in terms, declares that the defendant did "unlawfully, falsely, and designedly pretend to the said Walter J. Wallet that he had certain moneys deposited and to his credit in the State Bank of New Iberia, against which he could draw sight drafts"; and it further declares that he "desired him, the said Walter J. Wallet, to let him have the sum of fifty dollars, for which he would give him, the said W. J. Wallet, a sight draft drawn by him on said State Bank, and against said fund in the said State Bank of New Iberia,

for the sum of fifty

dollars, which he, the said Harry Seipel, did then and there draw and execute against said State Bank of New Iberia for fifty dollars, and on which he secured the said sum of fifty dollars from the said W. J. Wallet." True it is that there is no averment in the indictment, in terms, to the effect that the check was good, or that it would be paid; but the substantial allegation is made that he had funds in the bank on which he could draw, and that he obtained the money upon a check he did draw on the bank, and which sum the said Wallet parted with upon the representations made.

The averment of the motion that it is not alleged in the indictment that "the said draft was drawn in favor of Wallet, nor indorsed to him, nor that it was signed by the defendant, nor that it was delivered to Wallet when the money is alleged to have been obtained," is, likewise, disproved by the language of the indictment above quoted, which is to the effect "that he [defendant] desired him, the said Walter J. Wallet, to let him have the sum of fifty dollars, for which he would give him, the said W. J. Wallet, a sight draft drawn by him [defendant] on said State Bank, and against the said fund in the said State Bank of New Iberia." It also contradicts the statement of the motion that it is not alleged that the draft "was delivered to him [WalJet] when the money is alleged to have been cbtained," as is shown by the averment that "the said Harry Seipel did then and there feloniously and unlawfully obtain from the said 28 So.-56

Walter J. Wallet the sum of fifty dollars, lawful currency of the United States of America, and thereupon gave to said W. J. Wallet the said sight draft for said sum, drawn against said State Bank."

*

The language of the indictment likewise negatives the averment of the motion to the effect "that there is no allegation that defendant intended to defraud him of the said money"; for it avers "that Harry Seipel unlawfully, feloniously, and designedly pretended to the said Walter J. Wallet that he had certain moneys deposited and to his credit in the said State Bank of New Iberia, * whereas, in truth and in fact, the said Harry Seipel had no moneys deposited to his credit in the said State Bank of New Iberia, nor any moneys therein upon which he could draw sight drafts, which said pretenses he, the said Harry Seipel, then and there well knew to be false; by color and means of which said false pretenses he, the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J. Wallet the sum of fifty dollars."

The point taken in the motion to quash, to which attention was chiefly directed in the argument, is that "all pretenses, even if false, that defendant had had money in the State Bank of New Iberia, and not that he then had said money, could not mislead." The averment in the indictment to which that objection is directed is as follows: "By color and means of which said false pretenses he, the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J. Wallet the sum of fifty dollars, lawful currency of the United States of America, and thereupon gave to said Walter J. Wallet the said sight draft for said sum drawn against said State Bank against the moneys he pretended to have had in said bank, being then and there the property of said Walter J. Wallet, with intent to cheat and defraud him, the said Walter J. Wallet." While somewhat inartificially stated, the language of the indictment evidently relates to the date at which the draft or check was executed by the defendant to W. J. Wallet, and against funds he pretended to have had in the bank at the time, and, taken in that sense, the argument pressed upon our attention is not admissible. A careful scrutiny of the indictment, in connection with the motion to quash, has satisfied us that it is sufficient in law to support the charge preferred against the defendant, and that the motion to quash was properly overruled.

Defendant's counsel complain of the refusal of the trial judge to give the following requested special charge, to wit: "That the jury must be satisfied that the accused got the money under false pretenses, and the mere giving of a check on which the money was obtained, without the false pretense that there was money in the bank to meet the check, is not sufficient evidence to support a conviction." The reasons assigned by the

judge for refusing to give the special charge are as follows, viz.: "The court had charged the jury, and repeated to them, that there must be a false representation by words written or spoken to constitute a false pretense, that is, words used by the offender or accused himself, or used by another and assented to by him; that the intention to defraud is essential to constitute the offense of obtaining money under false pretenses; that this intent is a question of fact for the jury, and inseparable from a deliberate act, and the circumstances surrounding the act." While it is true that the reasons of the judge for refusing the special charge requested are not quite clear, yet we think them sufficiently responsive to meet the exigencies of the case. The gravamen of the charge asked was that the jury must be satisfied that the accused got the money under false pretenses, and that is the question to which the judge directed the attention of the jury in a general charge, to which he referred. True it is that the charge requested goes a little further, and uses the correlative request that the jury be instructed "that the mere giving of a check on which the money was obtained, without the false pretense that there was money in the bank to meet the check, is not sufficient evidence to support the conviction"; but this, to our thinking, is opposed in meaning and in terms to the first part of said requested special charge, to the effect that "the jury must be satisfied that the accused got the money under false pretenses." We feel sure that, under the circumstances related, the giving of the special charge requested to the jury, subsequent to the giving of the general charge, would have had the effect of confusing, instead of enlightening, their minds. The simple statement that the jury must be satisfied that there was a false representation by words spoken by the accused, or assented to by him, whereby the party receiving the check was deceived, and parted with his money upon such representation, is deemed sufficient for all necessary purposes, and we therefore affirm the ruling of the trial judge in this respect.

Counsel for the accused made an application for a new trial, based mainly on the ground that the verdict was contrary to law and the evidence, but the motion also gives a partial analysis of the testimony adduced at the trial. This motion was submitted and overruled by the trial judge, and counsel reserved a bill of exceptions to his ruling. From the bill of exceptions we make the following extract: "The court, in giving reasons for overruling said motion, declared as a basis for such decision that a motion for a new trial, based merely on the ground that the verdict of the jury was contrary to the law and the evidence, should not be considered by the trial judge, and should not be granted; the court further declaring, in overruling said motion, that the supreme court had so decided." The bill of exceptions was signed by the trial judge, but no reasons were given

for overruling the motion. In our opinion, he was under an erroneous impression as to what this court had decided, and we take it for granted that it was the result of simple inadvertence on his part. This court has fre quently held that, as it did not have constitutional jurisdiction to examine the facts adduced on the trial of a criminal case, it could not review facts of a case, or a motion for new trial based on the ground that the verdict was contrary to the law and evidence; but it has not decided that the trial judge could not do so. On the contrary, the special province of the trial judge is to supervise the trial, and pass upon motions for new trial, for the purpose of determining whether the verdict was responsive to the law and evidence or not. Entertaining this view, we deem it our duty to reverse the judgment and sentence pronounced against the defendant, and remand the case to the court below, with instructions to the trial judge to entertain and decide the motion for new trial, but not to interfere otherwise with the trial and disposition of the case. It is therefore ordered and decreed that the judgment and sentence pronounced against the defendant be annulled and reversed, and that the cause be remanded to the court below, with instructions to the trial judge to examine and decide the motion for a new trial; and it is further ordered that the verdict of the jury and other proceedings in the case be left undisturbed, pending the action of the trial judge upon the motion for a new trial.

(104 La. 167)

STATE. THOMPSON. (No. 13,678.) (Supreme Court of Louisiana. Dec. 3, 1900.) JURY-GENERAL VENIRE-WAIVER-CRIMINAL

LAW.

1. The general venire of jurors should not be set aside for defects or irregularities in its selection, unless it should appear that some fraud has been practiced, or some great injury committed therefrom, which would work irreparable injury. Section 15, Act No. 135 of 1898.

2. Parties accused of crimes necessarily punishable at hard labor have no legal right to waive trial by jury, and insist upon being tried by the district judge. Article 117, Const. 1898. (Syllabus by the Court.)

Appeal from judicial district court, parish of Assumption; Paul Léche, Judge.

William Thompson was convicted of theft, and appeals. Affirmed.

Pugh & Pugh, for appellant. Walter Gulon, Atty. Gen., and G. Adolph Gondran, Dist. Atty. (Lewis Guion, of counsel), for the State.

NICHOLLS, C. J. The defendant was found guilty under an information charging him with horse stealing, and was sentenced to hard labor in the penitentiary for one year. Prior to going to trial, he moved to quash and set aside the jury, on the ground that it was drawn to the great injury, wrong,