text:
    No. 9100.
    Emile Droz vs. The Parish of East Baton Rouge and Treasurer.
    Creditors of a municipal corporation have no right to invoke the remedy of injunction to restrain municipal authorities in the exercise of their administrativo functions, except as an adjunct to a remedy for the enforcement of their debts.
    In this case there is entire failuro to establish plaintiffs right to the mandamus prayed for, to pay his debt, and, tlierefoio, tlio remedy by injunction must fall with it.
    APPEAL from the Seventeenth District Court, Parish of East Baton . Rouge. Slwrburn, J.

      K. A. Gross for Plaintiff and Appellaut.

      G. W. Buchner for the Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is an action by a judgment creditor of the parish of East Baton Rouge, directed against the police jury and the treasurer of the parish; the relief sought, in which, as appears from the prayer of the petition, is to obtain an injunction “ restraining- the police jury from appropriating and the treasurer from paying any amount to the prejudice of petitioner’s said judgment,” and a mandamus commanding the treasurer “to pay petitioner the amount of said judgment out of funds in his hands to credit of a so-called contingent fund.”

The rec'ord is barren of any evidence showing that there is any special legal duty resting on the parish to appropriate this particular fund to the payment of this particular debt in preference to others, or that the contingent fund will not bo required to supplement deficiencies which may arise in the revenues anticipated to meet other lawful appropriations in the budget; and the evidence shows that, at the date of this proceeding, there was but $40 in the treasury to the credit of this fund.

Obviously, no case is established for a mandamus.

As to the injunction, complaint is made of certain appropriations already made by the police jury, for purposes claimed to be improper and beyond the province of the jury.

For aught that appears, these appropriations may already have been paid and the broad injunction asked for is, manifestly, improper.

The. appropriations are for public purposes and we are not prepared to say they are beyond the general powers of the corporation.

But, at all events, the general rule is that judicial tribunals will not interfere with municipal corporations in their administrative government, unless some clear right has been withheld or wrong perpetrated. Dillon on Munic. Corp. secs. 58, 59.

Plaintiff, in his capacity of creditor simply, can invoke the remedy of injunction in such a case, only as accessory to his remedy for the enforcement of his debt; and as he has not sustained his right to a mcmdamm for that purpose, his injunction must fall.

The general right to invoke the remedy of injunction to prevent municipal authorities from passing beyond the line of their municipal powers, is not extended to creditors except, as before stated, in aid of remedies to enforce their debts.

Such acts are assimilated in New York and Massachusetts to public mdscmces, affecting the whole public and only to be restrained at the suit of public officers authorized for that purpose, or by some private person who shows that he suffers therefrom or is threatened with some injury peculiar to himself. Dillon, sec. 735, and authorities quoted.

In other States, the right of citizens and taxpayers generally to invoke such relief is recognized. Id. sec. 731 et seq.

But it is not held anywhere that a mere creditor may do so, otherwise than as above stated.

It is not made to appear that an injunction against payment of these alleged illegal appropriations would advance the payment of plaintiff’s debt.

Judgment affirmed at appellant’s cost.


source: Caselaw Access Project

author: MANNING-, J.

license: Public Domain

text:
    No. 8989.
    The State of Louisiana vs. Richard Comstock.
    The use of clue diligence is a pre-requisite to obtaining a continuance of a criminal prosecution.
    Attachments for absent witnesses cannot be issued unless they be personally served with subpcenas.
    To procure a continuance because of an absent witness, the accused must aver in his affidavit that he cannot prove by any present witness the fact he expects to prove by him, for whose absence the continuance is prayed: And the fact he expects to prove must be stated.

      Where there has keen a continuance, and a copy of the indictment has been served on the. accused once, it need not he served again immediately preceding the trial.
    An objection to a ruling of the trial judge on a criminal prosecution, and a reservation of a hill thereto, noted in the minutes of the court, will not he noticed unless the objection is made the subject of a bill duly signed and certified by the judge. The Act of 1877, permitting an objection to be reserved by the clerk taking a note thereof, is an amendment of the Code of Practice, and as that Code regulates the practice of civil causes alone, the amendment can relate alone to those causes.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Halm, J.

      J. G. JSgam, Attorney General, for the State, Appellee.

      Jas. D. Augustim, and Ghs. A. Baquié for Defendant and Appellant.
   The opinion of the Court was delivered by ,

MANNING-, J.

The prisoner was indicted for rape upon the person of Aimée Jenkins, was convicted without capital punishment, and sentenced to hard labor for life.

The indictment was found November 28, 1882. The prisoner was arraigned on. the following day, and the case fixed for December 6th, on which day a continuance was prayed and granted. It was fixed at the next term for May 19th, when the defendant applied for and obtained another continuance on the ground of absence of material witnesses. He was then released from confinement on hail. The case was again fixed at the autumn term for October 13th, and a continuance was then made necessary by the defendant’s flight from justice, and it was finally fixed for October 20th, when a fourth continuance was asked and refused.

This refusal is one of the grounds relied on for reversal of the judgment.

The application for this fourth continuance is based on the same ground as the second, hut the two motions differ as to the names of the witnesses whose absence is complained of. All were expected to prove an alibi, hut the affidavit for continuance disclosed that he had two witnesses present who would swear to the same facts as the absent witnesses. .There are no subpoenas with returns.

There was want of due diligence, or no shewing of due diligence, and the evidence of these witnesses would have been cumulative only, since there were others present to prove the same fact. Their evidence was not therefore material. To procure a continuance, the defendant’s affidavit should have averred that he could not prove by any present witness the fact he expected to prove by him, for whose absence the continuance is prayed. State vs. Robinson, 29 A. 364; State vs. Bradley, 30 A. 326; Allen vs. The State, 10 Ga. 85; Freligh vs. The State, 8 Mo. 606.

The use of due diligence is a pre-requisite to obtaining a continuance of a criminal cause. Subpoenas for absent witnesses must have been issued. Unless subpoenas have been served, attachments cannot be issued for the witnesses. State vs. Allemand, 25 A. 525.

The objection that a copy of the indictment had not been served on the accused falls when it appears that, although not served immediately before the last setting of the case, it had been twice served on him on two former settings thereof.

The second bill of exceptions seems to have been taken to the refusal of the judge to grant a new trial, and nothing else. No ground for the new trial is stated therein.

There is no appearance in this Court for the defendant, but the brief of the Attorney General treats the ground of the motion for a new trial as if it had been made the subject of a bill. It does not appear anywhere except in the minutes of the court, and the ground is there stated, and the ruling of the court thereon, and a minute is made that a bill was reserved, after the manner permitted in civil cases by the Statute of 1877. But no bill was drawn.

The Act of 1877 is an amendment of Article 488 Code of Practice. That Code provides for the practice in civil causes alone, and the amendment can of course apply to no other. State vs. Jessie, 30 A. 1170. In a criminal prosecution, unless the objection is embodied in a bill, this Court cannot review the ruling of the trial judge. State vs. Dufour, 31 A. 804.

There was nothing lost however in this particular case. The judge ruled correctly on the objection.

Judgment affirmed.

Rehearing refused.


author: Beejiudisz, C. J.

text:
    No. 9108.
    Fred. Eyle vs. The Roman Catholic Church, etc. And The Society of the Roman Catholic Church vs. Fred. Eyle.
    Matured notes growing out of tlio same transaction, in the hands of the same creditor against the same debtor, constitute hut one debt.
    Payments made after maturity of such notes, are imputable to the entire debt.

      PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.

      Bead <& Goodale for Plaintiff and Appellee.

      Fcmrot & Lmion for Defendant and Appellant,
   The opinion of the Court was delivered by

Beejiudisz, C. J.

The plaintiff, at first, proceeded via exeeutiva, for the collection of four notes secured by vendor’s privilege and special mortgage.

Upon injunction, attacking the proceedings and phading payment of the first matured note and prescription of the remaining three, the plaintiff changed the executory into ordinary proceedings, praying for judgment for the amount of the notes, with interest, less certain credits attorney’s fees, with privilege and mortgage.

Prom a judgment in his favor the defendant corporation appeals.

The four notes are all dated October 8, 1873, each for $1794 30 with eight per cent interest from September 6, 1873, till payment, are made payable respectively at six, twelve, eighteen and twenty-four months.

The plaintiff credits them with several amounts, part of which was received prior to the maturity of the note last falling due ($208 75), the other sums being received subsequently, $1903 20, forming a total of $2111 95.

The evidence shows that the different amounts there credited, were realized and paid by a society which had undertaken, voluntarily, to pay the debt and which had been organized by one who had been authorized by the legal representative of the defendant corporation to do his best to extinguish the debt.

But, however this may be, the corporation has ratified those payments by pleading that they have been improperly imputed and that had they been properly credited, they would appear to have extinguished the note first maturing, due on April 8-11, 1874.

There is nothing to show that when those payments were made, they were to be imputed in any particular manner, by consent of parties. The payments made between the maturity of the first note and that of the last, were quite small, and as they were absolutely insufficient to extinguish the interest and capital of the first note due, they were properly imputed to the partial payment of the interest due on the three notes, matured at the time.

It is not correct to say, that the other amounts which were paid after the maturity of the last note, should have been applied to the extinguishment of the first matured note,

When those amounts were received, the four notes had matured and they constitute one and the same debt, growing out of one and the same transaction, in the hands of one and the same creditor, against one and the same debtor. 9 A. 455; 13 A. 294; 4 A. 509; 3 R. 361 ; 3 A. 352; 6 N. S. 113; R. C. C. 2164.

Payment having been made before prescription had accrued on any of the notes, it unquestionably interrupted it and maintained the debt in its integrity.

We ñnd no error in the judgment appealed from, which is affirmed, with costs.


author: Pochís, J.

text:
    No. 9083.
    Succession of Mélina Webre.
    Interdicted persons are, in ©very respect, subjected to tlie same rules and. protected by the same laws which govern minors.
    The curator of an interdicted person cannot incur expenses for the support and maintenance of his ward in excess of the latter’s revenues.
    Such expenditures, unless authorized by a family meeting, are at tho risk of tho curator, who, in his final account, will be held liable for the capital, intact, of the interdict’s estate.
    The account of a curator is due to the court, and his omission to make the heirs of the inter diet parties to the proceeding will not debar the latter of their right to oppose his account.
    PPEAL from the Twenty-second District Court, Parish of St. James. Oheevers, J.

      Sims (& Boché for Opponents and Appellees.

      James Legencb'e and St. M. Bércmlt for the Curator, Appellant. ■
   The opinion of the Court was delivered by

Pochís, J.

Mélina Webre, who had been insane and*under interdiction during the last years of her life, died singló, without ascendants or descendants, in November, 1881, in the Parish of St. James, where her succession was duly opened and her sister, Mrs. Pranfois Sevin, was appointed administratis. Her legal heirs are her brother and her sisters and tho minor issue of her two predeceased sisters.

In June, 1883, PranQois Sevin, her brother-in-law, who was her curator at the time of her death, presented his account of curatorship and, on the same day, Ms wife presented her account of administratrix, based upon the accounting of the curator.

Oppositions were filed to both accounts by the tutors of the minor heirs, urging numerous objections.

Both oppositions were fixed for trial for the same day, but the record shows that the opposition to the account of curatorship alone was tried. From an adverse judgment Sevin, “personally as a creditor and as curator,” has taken this appeal. The other case is not before us.

Our attention is first called to a bill of exceptions, taken by appellant, to a ruling of the lower court, which overshadows the whole controversy.

In the inception of the trial the accountant moved for the dismissal of the oppositions to his account of tutorship, on the ground that the same had been presented to the administratrix and that opponents had not been made parties thereto, hence, it was alleged that their oppo- > sitions should, and could alone, have been presented by means of an intervention or third opposition.

The account of curatorship was, under the law, due to the court, and all interested parties should have been made parties to the proceeding.

It is true that the administratrix represented the heirs and creditors of the succession, to a certain extent, but a judgment homologating the account of curatorship, contradictorily with her alone, could not have concluded the minor heirs of the interdict.

Hence, the law opened the door to their tutors and legal representatives for the protection of their rights.

It is very clear that in presenting his account to the administratrix alone, the curator could not defeat the rights of parties whom he had illegally omitted to notify to appear in the proceedings and urge objections to his proposed settlement.

His motion was, therefore, untenable and it was properly overruled.

The account of curatorship showed that the capital of the interdict, amounted to $1690 72, and that her revenues, consisting of interests, aggregated $525 60.

He proposed to be credited with the following sums alleged to have been paid by Mm on account of the interdict:

For her support, from his appointment as curator, in 1878, to her death, in 1881. $449 08

His commission. 56 10

For debts, including expenses of last illness and funeral charges, paid since her death. 188 90

And lie claimed as another credit, the costs of board and support of the interdict during his three years of curatorship, at the rate of $20 a month, the sum of $760, thus leaving a balance of $762 24 in favor of the estate.

The main ground of opposition is levelled at the fact that the charges made by the curator exceed the revenues of the interdict; and, that his account should, therefore, be amended so as not to encroach on the capital of the estate. That view was adopted by the lower court, and the curator was held liable for the sum of $1690 72, amount of the capital received for the interdict, by him, from her previous curator.

As the appellant does not even allege or pretend that he was authorized by a family meeting to take anything from the interdict’s capital, for her support, his claim for her maintenance, during his curatorship, is without the slightest foundation in law. As the interdict was, at times, violent, and her condition required great care and attention on the part of the curator and his wife, at whose house she lived during that time, we confess that the refusal of that allowance is a considerable hardship, but the law is imperative and it must bo obeyed. That proposition is so plain and elementary, that on appeal the curator’s counsel have not pressed that claim, and we understand that they have, in all fairness and candor to this court, virtually adandoned it.

Their contention is mainly to obtain allowance out of the capital of the succession for law charges amounting to $75, and for expenses of the last illness and funeral charges, aggregating $188 90.

If the curator had not received any revenues from the interdict’s cap ital, their position would be sustained by jurisprudence and the allowance could perhaps have been made; but the, record shows that there were revenues and that the same had been absorbed by the curator during the three years of his administration, during which he disbursed the revenues which had accumulated during the preceding curatorship, and that such disbursements had been made without legal authority. Hence, we are powerless to allow even that amendment.

The argument that the account should bo amended only to the extent of the shares of opponents and not as to the interest of the other heirs, who had not joined in the opposition, is without force.

The account which was duo to the court must bo treated as an entirety, and the court cannot homologate or amend such accounts by piecemeal.

Judgment affirmed.

ApplicatioN POR Rehearing.

Appellant strenuously urges error in our refusal to allow him credit for the sum of $188 90 in reimbursement of amounts disbursed by him on account of certain law charges, for the expenses of the last illness and for funeral charges of the interdict.

In refusing him that credit we did not intend to refuse payment of the expenses of the last illness and of funeral charges out of the estate of the interdict — but simply to deny them to the curator.

His functions ceased at the death of his ward, and he then became powerless to incur any debts for her account. Nothing in our opinion precludes the administratrix, when she presents her final account, to provide for the payment of the expenses of the last illness and of funeral charges. The question will properly come up at that time — and is not decided in the present controversy — her account is not yet before us.

Rehearing refused.


author: Todd, J.

text:
    No. 9158.
    Washington Jackson vs. Smith Wren.
    Where the proceedings relating to a tax sale were conducted as against a living defaulting taxpayer, to whom a curator ad hoc was appointed, as if absent, and the tax deed purports to convey the interest of a living person in the land, when in fact the taxpayer had been dead for years and neither his succession nor heirs were represented, the sale will be null and can acquire no force by a subsequent confirmatory deed from the Auditor.
    PPEAL from the Eighth District Court, Parish of Madison. Delomj, J.

      J. C. Seale for Plaintiff and Appellant.

      E. D. Farrar for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.


author: Fesíner, J.

text:
    No. 9084.
    The State ex rel. New Orleans Insurance Company vs. The Judges of the Court of Appeals for the Third Circuit.
    The doctrine is re-affirmed, that this court, in the exercise of its supervisory jurisdiction, will not interfere with the discretion of inferior courts in determining questions within their jurisdiction, arising properly for decision, and decided in regular course of proceed ings.
    A PPLICATION for Certiorari and Mandamus.

      Olías. IS. Schmidt, for the Relator :
    Where, under a writ of attachment, a debt due by a third person, made party garnishee, has been seized in his hands, if the defendant in the attachment suit gives a release bond under Article 259 C. I?M the attachment is thereby dissolved, the bond substituted for the property attached, and the garnishee canuot set up the pendency of the suit as a reason for withholding any part of the debt. 2 A. 243; 18 L. 58.
    Under Act Ho. 51 of 1876, p. 92, one not a party to the suit claiming to be in the actual or constructive possession of the property, real or personal, attached, may on intervening in the suit, and on prima facie showing to the court, that he is the bona fide owner, pledgee or consignee of the property, have the same delivered to him on executing a bond in the same manner and amount, within the same delay, and with the same effect as the defendant himself could.
    "Where such an intervenor has been allowed to bond the property attached, the attachment being thereby dissolved, the garnishment is thereby released, the garnishee ceases to be a party to the suit, and the property attached in his hands is no longer in custodia legis, or subject to the control of the court.
    When after such bonding by the intervenor the garnishee, conformably to the authorization of the court, has paid to the intervenor the amount of the debt attached, the plaintiff in attachment cannot, on the subsequent trial of the case on the merits, disregard the dissolution of the attachment by the release bond furnished by the intervenor, treat the garnishee as still a party to the suit, and take judgment against him personally. Such a judgment is coram nonjudice and an absolute nullity.
    Such void judgment may be attacked at any time, in any form of proceeding, whether collaterally or by direct action, by any one having the least interest to have the nullity pronounced. 30 A. 692; 29 A. 647; 24 A. 253 ; 33 A. 618.
    An execution upon such a iudgment can be considered as issued without a judgment to sup - port it. 33 A. 618.
    Even though the garnishee might have appealed therefrom, his right at any time to relief by an action in nullity is expressly secured to him by law. O. 3?. arts. 604, 611, 612; 5 A. 218.
    It was error, therefore, on the part of the court of appeals to have maintained an exception to the effect that in such a case an action in nullity did not lie, and that relief was only obtainable by appeal.
    The refusal of the court of appeals to go into the merits of the action in nullity was.based upon an erroneous construction of a question of law and practice preliminary to the whole case.
    In such a case, your Honors have held that your supervisory control over an inferior court, under Article 90 of the Constitution, could be invoked to compel, by mandamus, such court to reinstate the case and proceed to a hearing on tlie merits. State ex rel. McG-ee et al. vs. Judges Court of Appeals, 33 A. 182; High on Ex. Hem. § 151.

      Henry P. Dart for the Respondents:
    1. ‘Where the circuit court has taken jurisdiction and decided the case, maintaining a'peremptory exception, its acts are riot roviewable and mandamus and certiorari will not lie. 33 A. 16, 182, 1201; 34 A. 782; 35 A. 838; 32 A. 2224, 552.
    2 The decision of a peremptory exception which disposes of the case is not a construction of some question of law or of practice preliminary to the whole case,” hut is a final judgment, combining on its face the elements of jurisdiction and decision, the whole an act of judicial discretion.
    3. When a record is opened for discussion on the points of defense, that fact evidences the determination of all preliminary questions, and the decree disposing of the case according to the judgment of the court does not fall under the supervisory control of this Court. d
    4. An action of nullity does not lie when the plaintifi had remedy hy appeal. A litigant’s laches are no grounds for nullity.
    5. A judgment is not absolutely null which was predicated on a citation duly served.
   The opinion of the Court was delivered hy

Fesíner, J.

Relator brought a suit in the District Court for the Parish of St. Landry, against Berkson Bros., the object of which was to have a judgment which had been rendered against relator in favor of said Berkson Bros, declared absolutely null and void.

The said defendants filed in limine a peremptory exception to the effect that an action of nullity did not lie in such a case, but that the only remedy was by appeal from the judgment sought to' be annulled. This exception was overruled in the district court, judgment rendered on the merits in favor of the relator and an appeal was taken to the court of appeals.

The judges of the last named court, who are respondents here, after due hearing and with all regularity of proceeding, decided that the exception above stated was well taken, reversed the judgment of the lower court and dismissed relator’s action.

The present application of relator is for writs of certiorari and mandamus, under which he asks that we should annul the judgment of the court of appeals and command the judges thereof to reinstate the case and proceed to hear and decide the same on the merits.

It is evident that we could not grant the relief prayed for without a complete departure from the rules which we have uniformly and repeatedly laid down as those by which we should ordinarily be guided in the exercise of our supervisory jurisdiction.

The exception was peremptory in its nature, properly pleaded, carried up with the cause to the court of appeals and was a necessary matter to be considered and decided by that court. In the exercise of unquestioned jurisdiction and with entire regularity of proceeding, the respondent judges have decided it.

For this Court, in this form of proceeding, to undertake to revise that judgment, would he to exercise a purely appellate jurisdiction which, in such matters, we have uniformly declined to do. State ex rel. City vs. Judge, 32 A. 552; State ex rel. Berthoud vs. Judge, 34 A. 782; Brown vs. Raglan, 35 A. 838.

The case of State ex rel. McGehee vs. Judges, 33 A. 180, relied on by relator, has no ap]dication here. There the respondent judges refused to entertain jimsdiction of the cause. Here the court entertained jurisdiction and heard and decided the cause.

It is, therefore, ordered that the prater of relator’s petition be denied at its proper cost.


author: Manning, J.

text:
    No. 9031.
    David C. Paul vs. Heirs of P. Lamothe.
    A partition of a tract of land, made under a decree of the Supremo Court affirming that below, if attachable, can ho attacked only in a direct action for its annulment.
    Tlie details for making partitions prescribed with minuteness in tlie Civil Codo aromado with special reference to partitions of successions. When a partition is sought between co-owners of property who aro not co-heirs, the general rulos thus prescribed will govern, blit such details as are manifestly inapplicable will not bo considered sacramental.
    PPEAL from the Twelfth District Court, Parish of Rapides. Barhin, J.

      B. J. Bowman for Plaintiff aud Appellee.

      Andrews <& Foster and W. W. Wldtlinglon for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

Polycarp Lamothe and Ms wifo Editha owned a plantation in community. After the death of both,, their respective successions were separately opened, and proceedings were had for the partition of tholand between them, which terminated by a judgment of this Court affirming that of the lower court ordering a partition. The case is indexed as Bynum administrator v. Bynum among tho unre-portod decisions in 26 A. for 1874. Editha’s half was then sold for payment of her debts, and was bonglit by Hickman who sold to Paul the plaintiff.

Polycarp’s lialf was owned by six lieirs. Paul bought the shares of three of them, and brings this suit against the other three for the partition of that moiety of the land which fell to Polycarp’s srrccession in the first partition. One only of these three heirs was resident in tho parish, who does not resist tho partition. The other two reside out of the State, and for them curators were appointed who defended the suit.

One of tho grounds of resistance is that there has been no partition between Polycarp and Editha’s successions. Sundry informalities of that partition are set up which, it is urged, vitiate it, and stamp tho proceedings with a nullity.

If it is not too late to attack that partition' after tho suit has progressed through its several stages to a decree of tho court of the last resort, it could be done only by a direct action for its annulment. There is no allegation or proof of inequality in that partition, or of injury resulting therefrom. We must treat this first partition as a finality now.

Another objection is that no inventory has been taken in the present suit, whereas the Code rigorously prescribes that every judicial partition must bo preceded by an inventory. Rev. Civ. Code, art. 1324. No inventory was needed as we shall see further along. The only provisions we have for partitioning property are under the head of successions. It does not seem even to have occurred to tho redactors or revisers of our Code that real property is often held in indivisión that does not belong to a succession, and may never have belonged to one. The present case is an instance of partition being sued for between co-owners who are not co-heirs, but must necessarily be conducted by tho only rules we have on the subject unless they are manifestly inapplicable.

The first step to be taken in a partition of a tract of land is to ascertain whether a division in kind is practicable without a serious diminution of its value, or loss or inconvenience of one of the owners. Rev. Civ. Code, art. 1340. Experts are ajipointed by the court tore-port on this special subject. They reported in this case that a division in kind could not be made without such diminution in value and loss to each of tho owners. Upon the presentation of this report, testimony was offered by both sides and the witnesses confirmed the report of the experts, which was therefore homologated. But one thing remained for the court to do. The parties could not be compelled to hold in indi-visión. Rev. Civ. Code, art. 1289. The property was not divisible in kind without injury. Nothing could be done but decree a partition by licitation. Ibid. art. 1339. A sale was accordingly ordered, and from tbat judgment tbe appeal is taken.

It is manifest tbat an inventory, the sole item of which would be this tract of land, could have served no purpose whatever. It could not have guided the experts or informed the court on the initial question of the divisibility or indivisibility of the land. An appraisement will bo needful now since none has been made within a year, and for that the Code provides. Thiel, arts. 1325-6.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9122.
    John W. Johnston vs. Edward J. Barrett.
    When persons mutually engage in bandying opprobrious epithets, an action of slander for words thus uttered will not be encouraged.
    In a suit in damages foi* trespass, and assault and battery, in which the- jury clearly fail to render a proper verdict, the appellate court reviewing the facts will set the verdict aside and render such judgment as the nature of the case and justice may demand.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blaclcmcwi, J.

      B. P. Hunter and J. 0. WieMiffe for Plaintiff and Appellant.

      White & Thornton for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This controversy involves two actions in damages. The first, by the plaintiff, for trespass on his property, assault and battery on his person, and insult to his reputation and feelings. The second, by the defendant, for the use of false and slanderous words spoken publicly to his great mortification by plaintiff.

The jury, nine members agreeing, returned a verdict rejecting plaintiff’s demand and allowing two hundred dollars to the defendant on Ms reconventional demand.

More than twenty witnesses were heard for the purpose of the suit. The testimony is, as usually, conflicting, as it includes that of the litigants, and the case is one in which great acrimony and violent ill feelings between the parties are displayed.

It is not our purpose to analyze the evidence and to show in what respects it accords or disagrees. We deem it sufficient to state the facts we find to be satisfactorily established.

It appears that on the 17th clay of December, 1882, the plaintiff was in the possession of a wagon loaded with cotton in the seed, drawn by oxen and in charge of his driver. The wagon was at the time .at a place known as the Janean place and was about to be hauled to a gin a short distance off, there to be ginned.

The defendant laid claim to a lien on the cotton seed for the pay- . ment of a paltry sum said to be due him by the party from whom he thought plaintiff had' procured the cotton.

The jdaintiff was sitting on his mule on the road, near the wagon, and the defendant, in the conrpany of two men, was in a mule wagon, on the same road and at a short distance also.

Words passed between plaintiff and defendant touching their respective title to the cotton, during which both used language highly offensive. Defendant, who was armed with a cooked gun and with a pistol, assaulted jdaintiff, a man over seventy years old, punching or jmshing him with the gun, getting into the wagon, taking cotton from it, finally jmlling plaintiff by his j)ants and striking him in the face, defying and damning the law, to which plaintiff had said he would appeal for redress.

It appears, on the one hand, that during the course of the difficulty the plaintiff called the defendant various hard names, such as would naturally wound his feelings and mortify him; while on the other.hand it is shown that defendant lacked no liberality in applying to plaintiff unkind epithets.

The parties finally sejiarated on terms anything but friendly.

It is manifest that, whatever the pretensions of the defendant were to the cotton seed, he had no authority to assume to take violent possession of it, and to assail and treat plaintiff in the wanton manner which has characterized his acts; and that jdaintiff, whose life was put in jeopardy, whoseproperty was imperiled, whose body was struck, whose feelings were injured, has an undoubted right to appeal to the court for redress and is entitled to vindication and indemnity.

In a case much similar to the present, our immediate predecessors took occasion to say, and we repeat with them:

“ Such lawlessness must be rejiressed, must be put down by the strong hand of the law, and wrong-doers mgst be taught that the way of the transgressor is hard. It is only when the laws are enforced and obeyed, when rights are observed and respected, and when the citizen can feel that he is secure in his person and property so long as he does no wrong to others, that there can be j>eaec, good order and prosperity in the land.” Cooper vs. Cappel, 29 A. 213.

As to the reconventional demand on which the jury, by a majority, found for plaintiff therein for $200, it appears that no amendment of the judgment is asked in this Court and that the verdict is a just cause of complaint.

Tt can well be conceived that under the circumstances of the case, in a moment of fear and in the heat of passion, the plaintiff, who saw himself about to be deprived by violence and force of the possession of cotton which he had good reason to consider as his, may have forgotten hi mself in the way in which it is claimed he did, by calling his aggressor and spoliator the hard names used on the occasion.

Besides, the principle of law applicable to a case like the present one is, that where- persons mutually engage in bandying opprobrious epithets, an action of slander is not to be favored for words thus uttered. 13 Pick. 510; 2 Camp. 72; The Bigney case, 36 A. 38.

It is, therefore, ordered and decreed that the judgment appealed from' he reversed and the verdict whereon rendered be quashed and set aside. And it is now ordered and adjudged that the plaintiff, John A. Johnson, do have and recover of the defendant, Ed. J. Barrett, the sum of five hundred dollars and that the reconventional demand of the latter against the former be rejected, with costs in both courts.

Whatever the names be by which the defendant was called, there is nothing to show that they have affected his standing and reputation, which are well established in the section of the country in which he resides.


author: Poché, J.

text:
    No. 8746.
    Edward S. Maunsell vs. Henry Willett.
    A party seeking to recover under an alleged partnership, against his alleged partner, must prove the existence of the partnership with legal certainty.
    In this case, in which plaintiff claims that he was a partner with the defendant in the construction of certain wharves and in a wharfage business carried thereon, the evidence shows that the wharves had been constructed under a contract made by defendant in his individual name, with funds realized by means of his individual noto; and that the plaintiff was his solicitor and collector on a compensation consisting of one-fourtli of the gross receipts of the wharfage business. Hence, there was no partnership and plaintiff has no ownership in the wharves.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. . BigJitor, J.

      T. M. Gill and JBrecmx & Hall for Plaintiff and Appellant.

      J. H. Ferguson for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

This is an action for the dissolution and settlement of an alleged partnership between plaintiff and defendant in tbe wharfage business and in a land trading speculation.

Plaintiff charges that on or about tho 1st of August, 1880, he formed a- co-partnership with defendant for the purpose of building wharves and of engaging in the wharfage business at a point opposite to the city of Now Orleans, on lands owned by Peter Marcy, who charged them no rent for the use of his lands. That the gross receipts from said business was to bo divided as follows: one-half to bo applied to tho payment of tho cost of tho wharves and of other incidental expenses, and the balance to be equally divided between the alleged partners; and that the partnership continued in operation until February, 1882, when the lands on which tho wharves'had been built ware sold by the owner thereof.

Ho further charges that the negotiation for the sale of said lands had been entrusted to the defendant and himself by tho said Peter Marcy, who liad given them the refusal of tho same for $90,000, with the understanding that any amount in excess of said sum which they might realize on the sale of the property would accrue to them in equal shares; that said lands having been subsequently sold for $100,000, tho defendant received $10,000 on said sale from Marcy, thus entitling plaintiff to one-half of said profits thus realized. Hence, he sues for the sum of $5000 on said transaction and for other sums which may bo due him on account of partnership income.

Tho answer is a general denial. The judgment of the district court is in favor of defendant and iilaintiff appeals.

The issue presented in the case calls for the solution of the following two questions:

1. Was there a partnership between the parties as owners of the wharves built in 1880 on Peter Marcy’s lands opposite to this city, and in the wharfage business earned thereon?

2. Was the sale of tho lands on which those wharves had been erected jnade under the negotiations flowing from the refusal of the same for $90,000 given to plaintiff and defendant by Peter Marcy in November, 1881?

Under our examination of tho record both questions must be answered in the negative, and hence we conclude that the judgment of the’lower court is correct' and that it must be affirmed.

Plaintiff’s theory is that ho was taken as a partner by the defendant in the construction of these wharves and in the wharfage business, under conditions by which the contract for building the same was made and executed by the defendant in his individual name, that the funds raised for tho payment of such contract were realized on a note executed by the defendant alone and renewed four times, and that by contributing his labor alone he, plaintiff, became a full partner in the business and owner of one-lialf of the wharves.

The main support of his theory is his own testimony, corroborated by the circumstance that on two different occasions he introduced the defendant to third parties as “his PARTNER,” and that the latter did not object or correct him. To resist his theory the record shows the sworn denial of the defendant, corroborated by numerous circumstances and by all the equities of the ease, all of which point to the correctness of the defendant’s theory, which is as follows:

That the wharves wore built exclusively by himself on the lands of bis father-in-law, Peter Marby, with whom he had expected to operate in the wharfage business in the early future on a larger scale, after a successful experiment; that the funds needed for the construction of the wharves were raised on his own note, with the endorsement of his father-in-law, with which the note (for four months) was renewed four times; that being unable on account of his occupation as a farmer to give the time and the attention required by the nature of the business, he had employed the plaintiff, who was married to a niece of his wife, to attend to the business as a general solicitor and as collector, on a compensation to consist of one-fourth of the gross receipts of the wharfage business, with the additional right of disposing of a large portion of the ballast taken from the vessels mooring at his wharf, which was allowed him as a perquisite.

That theory is supported not only by the defendant’s testimony but by numerous indisputable facts shown by the record, of which we enumerate the following:

From the books of the eoucern, kept by the plaintiff himself, it appears that one-fourth of the wharfage received from each particular vessel was allowed him and the balance to the defendant, and that all the receipts have been accounted for. The billheads and the business cards of the concern show that the business was exclusively the defendant’s and that plaintiff’s name was printed in red ink across the business cards, as is the custom with clerks and other agents of commercial houses. In a letter written by plaintiff from Bay St. Louis to the defendant in August, 1881, he requests the defendant to send him $10 of my commission on wharfage of bark Buteshire.” The attempt in his testimony-to explain this expression by saying that he might as well have said, as he had the right to say, “my proportion,” is as weak as it is disingenuous and cannot have the effect of subverting the plain meaning of word.s .written at. a time not suspicious.

From Ms own testimony it appears that lie liad no experience in the wharfage business; that he had no means and no property; that there were judgments against Mm resulting from the recent failure of a commercial house of which lie had been a partner, and that although he kept the books of the concern he does not know what was the cost of the construction of the wharves.

But, on addition to the foregoing facts and of others not herein enumerated, we find circumstances which absolutely dispel plaintiff’s whole theory of a partnership in this business.

We cannot conceive of a rational being who would form a partnership under such conditions as are herein advanced by plaintiff. His pretension would tax our minds to believe that the defendant, who had secured the use of the grounds, who had made and signed a contract for the construction of the wharves, had executed Ms individual note for the purpose of raising the necessary funds, had then taken the plaintiff, situated as hereinabove shown, in full partnership, with the right of receiving as Ms share of the business one-fourth of the gross receipts before meeting the payment of the debts of the concern, and had vested him with the ownership of one-half of the wharves before payment of the construction of the same. Such a proposition cannot receive judicial sanction, even if not met by negative testimony.

On the second branch of the case, the record shows that the refusal of the lands for the price of $90,000 was given, ,by Mr. Marcy to the plaintiff and the defendant jointly, on the 11th of November, 1881, provided the sale be effected within thirty days.

They then employed R. S. Howard, an influential merchant in this city, to negotiate a sale for them at an advanced price, so as to secure the difference as their joint profit. At the end of the time, and of an extension of three days, Howard having failed to secure a satisfactory result, informed Mr. Marcy of the failure of his negotiation and formally abandoned the agency, returning to Marcy his written agreement.

At this juncture Willett, the defendant, who had studied and closely followed up the situation of affairs, brought a Mr. Duggan to Mr. Marcy and obtained from the latter a written agreement to sell the lands to Willett for $100,000, with the authority to use Duggan as Ms agent in the negotiation for a sale, the whole to be completed within two days. Within the delay a satisfactory sale was effected through the efforts of Duggan, whereupon Willett received $10,000 from Mr. Marcy as Ms compensation or profit in the transaction.

The mere recital of these facts is conclusive against plaintiff’s position on this branch of the case. The record shows to our entire satisfaction that the delay granted to Maunsell and Willett on the refusal given to them by Mr. Marcy had expired, that all negotiations thereunder liad terminated and that the connection of Maunsell with the matter of the sale had been completely severed when the contract under which the lands were sold was entered into with Willett, with Duggan as his broker or agent.. As was clearly and truthfully stated by Mr. Marcy in Ms testimony, the latter ‘‘was a new transaction altogether, and Maunsell was not known in that transaction at all.”

Hence, he has no claim to the profits realized by Willett.

Judgment affirmed.

Rehearing refused.


author: Fenner, J.

text:
    No. 9125.
    T. S. Buffington, Executor, vs. J. D. Blouin et al.
    When defendant lias assumed payment of a prior mortgage for $1000 and interest from date, tlie £act that some interest was already due at the date of the assumption, does not mato the suit on said debt appealable.
    The accrued interest did not thereby decome principal, but remained interest, and the debt sued for does not amount to $1000, occlusive of interest, which is essential for our jurisdiction. '
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.

      L. D. Beale for Plaintiff and Appellee.

      J. W. Burgess, Iiobertson & Bussell and Ihos. B. Dupree for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Wo have no jurisdiction of this appeal.

The suit is upon a note for one thousand dollars with interest from maturity, secured by mortgage upon property of which defendants subsequently became purchasers, assuming, as part of the lírico, payment of tMs prior mortgage. The fact that, at the date of their said assumption, interest had already accrued upon the note, does not affect the case. The accrued interest did not thereby become part of the principal, but is still interest. The debt assumed and sued for is one thousand dollars with interest from maturity. It does not exceed one thousand dollars, exclusive of interest.

Let the appeal be dismissed.


text:
    No. 9150.
    Colomb & Gondolfo vs. John McQuaid.
    An appeal must be dismissed when tbe transcript contains no pleadings, and presents no question of law or fact for decision.
    Unless tlie amount in dispute .somewhere appears in tbe transcript, dismissal ensues for want of jurisdiction; but if jurisdiction is apparent and tbe transcript is barren of any issue of law or fact, there is nothing to decide, and dismissal equally follows:
    APPEAL from tire Seventeenth. District Court, Parish of East Baton Rouge. Slierburn, J.

      0. 0. Bird and A. K. Cross for Plaintiffs and Appellees.

      Knox & Lacoelc for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This is a singular transcript. The first entry in it is an order of the district court, reciting that whereas the order for a sus-pensive appeal in this cause applies only to the reconventional demand, and the judgment of the circuit court upon the principal demand is executory, the clerk is therefore ordered to issue execution upon the judgment for that demand.

Then follows an appeal from that order — the petition of appeal, the order for it, the citations and service, and bond completing the transcript.

What the judgment was — its amount etc. no where appears, and the appellant, although he has taken the pains to file his transcript, has apparently deemed it unworthy of further attention.

We must sustain the motion to dismiss.

There is nothing to show that we have jurisdiction, and if we had jurisdiction, there is nothing for us to pass on. There is no question of law or fact mooted. There are no pleadings — a simple order that an execution issue upon an unnamed and undescribed judgment, and an appeal from it — only that and nothing more.

The appeal is dismissed.


author: Beumudez, C. J.

text:
    No. 9127.
    S. G. Laycock vs. City of Baton Rouge.
    If Section 14, of Act 44, of 1878. which. is the charter of the City of Baton Rouge, was inconsistent with the Constitution of 1879, it was either repealed or amended so as to conform with it. If it was not, it reads as the organic law does.
    The City Council of Baton Rouge has a right to levy a tax not exceeding six mils for the State and ten mills for the city, under the very terms of the Constitution (art. 209).
    A PPEAL from tlie Seventeenth District Court, Parish of East £jL Baton Rouge. Sherburm, J.

      Knox & Layooolc and O. JD. Kcwrot for Plaintiff and Appellant.

      O. G. Bird, City Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Beumudez, C. J.

This is an injunction proceeding involving the legality or constitutionality of a municipal tax.

From an adverse judgment the plaintiff has appealed.

It appears that the city of Baton Rouge, in December, 1881, levied a tax of ten mills on the dollar of the valuation of property within its corporate limits and that on plaintiff’s failing to pay it, his real estate was seized and advertised for sale, but that the sale was judicially arrested.

The contention is, that in attempting to raise that percentage the corporation has transgressed its powers. In support of that position, section 14, of Act 44 of 1878, which is the city charter, is invoked.

It is claimed that under its organic law the city can collect only “ such rate of taxation not exceeding the total State tax on every dollar of valuation,” and that inasmuch as by Article 209 of tlie Constitution now in force, “tlie State tax for all purposes whatever shall not exceed, in any one year, six mills on the dollar of assessed value,” the unavoid-able consequence is that the power of taxation vested by the charter in the corporation is restricted to a like rate.

On the other hand, it is insisted that at tlie date of the adoption of the charter, 1878, the State tax was of fourteen mills and a half, and that when the Legislature gave to the city of Baton Bongo the charter under which the plaintiff seeks refuge, it intended to limit taxation by it to that percentage.

It is further urged that this legislation was continued in force by tlie Constitution, at least so as to authorize municipal taxation up to ten mills and no more; and that, as the tax claimed is not in excess of that limit, it is legal and exigible.

It may, perhaps, be difficult to ascertain what the intention of the Legislature was when it granted the charter in question; whether taxation by the city of Eaton Rouge was never to exceed the rate of taxation for that year (1878), or whether it could fluctuate with the State tax itself, from year to year.

Be that as it may, the inquiry is simply whether the section invoked was either modified or repealed 9

The litigants virtually admit that it could be either, for while plaintiff’s contention is that it was altered by the addition of the proviso that the State tax shall never exceed six mills, the defendant’s is that it was amended, or even recalled, so as to limit city taxation to ten mills.

It is needless to determine specially whether the section was amended or repealed, for it is enough that it was a piece of legislation susceptible of either and that there had been legislation on the same subject-matter.

The Legislature of 1878 did not, and could not, contemplate to enact a legislation which could not be revised.

A convention, the direct representative of the people, clothed with plenary powers to legislate on all subjects properly pertaining to a Constitution, the dominion over which had not been formally abdicated in favor of the General Government, had the indisputable right to modify or revoke the charter of Baton Rouge in every respect, save that of impairing the obligation of contracts, if it was thought advisable to do so.

One of the main objects of the convention was to relieve the people as far as practicable from the oppressive taxation under which they had groaned during the previous quarter of a century, and to effectually shield them from the abuse of the power in the future, by fettering both the State and her functionaries. To that end it was that Article 209 was formulated, limiting State taxation to six and municipal taxation to ten mills on the dollar of valued property.

Necessarily, all anterior legislation, general or special, inconsistent with the Constitution, was abrogated at the appointed time after its going into operation, and it became of no effect. Indeed, Article 258 wisely provides for such cases.

It, therefore, follows that, if section 14 of the charter under consideration antagonized with the Constitution, it was either totally repealed or amended so as to conform with it; the more so as the language used restrictive of the power of taxation by the State, or by municipal corporations, is couched in negative terms.

If tile provision of the section harmonized with the Constitution, then it reads with the organic law in the sense that State and municipal taxation are limited, the former to six, the latter to ten mills, throughout the State — the cities and towns within her territory.

When the charter issued there existed no constitutional restraint on the power of taxation. The check was put upon it by the Constitution of 1879, which now reigns supreme on the subject, any legislation anterior or posterior notwithstanding.

The vague, indefinite and unsatisfactory legislation of 1878, open to mischievous or injurious construction, has taken form and substance, and acquired fixity and inflexibility, by the adoption of that provision of the Constitution of 1879, which forbids in prohibitory language parochial and municipal taxation from exceeding ten mills and therefore authorizes by implication such taxation to that limit.

It is, therefore, apparent that when in 3881 the city council of Baton Rouge levied the tax complained of, it.ex< rcisad a power with which it had been and was expressly vested. Whether it has done so judiciously or not, involves the issue of the propriety of an administrative act, with which this Court has no concern.

Judgment affirmed, with costs.


author: PocmS. J.

text:
    No. 9098.
    A. DeLambre vs. M. J. Williams.
    A party for whom constructions consisting of improvements and appurtenances have been made under contract, who has accepted the work, has expressed his satisfaction therewith, and settled therefor without objection or complaint, is estopped for claiming damages for alleged violations of said contract.
    Under a contract for general work, in which the owner makes a direct contract with a carpenter and engineer for these respective specialties, the general contractor cannot be held responsible in damages for the alleged shortcomings oí either.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.

      A. K. Gross for Plaintiff and Appellant.

      Knox c£ Layeoelc for Defendant and Appellee.
   The opinion of the Court was delivered by

PocmS. J.

This suit is for the recovery of damages for alleged violations of a contract, and for certain amounts alleged to have been overpaid by plaintiff on said contract.

In January, 1832, the defendant contracted to construct a steam-train and other sugar-house apparatus on plaintiff’s plantation at a stipulated price, evidenced by a written contract.

In addition thereto ho sold to plaintiff, for use in the sugar-house, other machinery, all of which had been delivered and erected by the middle of October of that year, and for all of which plaintiff settled by drafts on time and by notes of hand.

He used the machinery and the apparatus for the purpose of taking off Ms crop of that year, which amounted to about 100 hogsheads of sugar and corresponding molasses.

On the score of damages, iris complaint is that the defendant violated his contract in using' inferior material, principally in the matter of connecting, charging, and discharging pipes, adapted to'the clarifiers and evaporators, forming part of the steam-train, in consequence of which he lost sugar by leakage of juice and syrup. He nest charges defect in the steam generating apparatus, in consequence of which he lost time and fuel, and he finally charges, that owing to tinskillful turning and defective setting of the rollers of his mill, the cane was not sufficiently mashed, in consequence of which ho lost a great quantity of sacharme matter.

He fixes all such damages at tho aggregate sum of two thousand dollars.

The defendant admits the contract, but disclaims any responsibility for alleged deficiencies in the engineer’s work, and in the carpenter’s work, on the ground that plaintiff had made a separate and distinct contract with same, for work not necessarily connected with the steam-train. He also pleaded tho general denial and estoppel.

Plaintiff has taken this appeal from a judgment rejecting Ms entire claim.

Our examination of the record has brought us to the conclusion’thafc defendant is not responsible for alleged defects in the engineer’s and in tlie carpenter’s works. The stipulation fixing the value of those two elements in the construction, is contained, it is true, in the written contract, but from tho tenor of tho stipulation itself, and from other evidence, it appears clearly to our minds that they formed' no part of defendant’s contract, and that these two details were thus inserted at plaintiff’s request, and for the purpose of showing by one paper, to his merchants, the entire costs of the whole enterprise. Hence we conclude that, although the defendant had the general supervision of the whole construction, including the work of the engineer and of the carpenter, be cannot be bold responsible for deficiencies in their labor or acts, not more than be could have been .held responsible to either for bis stipulated compensation under the contract.

These views eliminate from the cause the discussion of all damages alleged to have been caused by the defects in wooden troughs, in the cane and bagasse carrier, in the rollers and in the steam generating apparatus.

In answer to the alleged defects in the steam-train proper, the defendant urges that after using the same and manufacturing therewith some hundred hogsheads of sugar, after expressing himself as satisfied with the job, and after settling in full for the price thereof, plaintiff is estopped from claiming damages for alleged violations of the contract which he had heretofore treated as satisfactorily executed, We find in the record full proof, in the shape of verbal statements by plaintiff, of letters and other evidence, documentary and otherwise, in support of that plea.

The record shows to our entire satisfaction that all the charges which were made in the work, all defects in the job had been fully considered by plaintiff, and satisfactorily accounted for and explained in his mind, and that he had knowingly and unequivocally accepted the work and had settled for the same advisedly, and without any error or concealment on the part of the defendant. Hence his lips must be sealed from the utterance of any complaint.

His counsel relies on the decision in the case of Levy vs. Schwartz & Bro., 34 A. 211, which he holds as precisely similar in its facts with the present case.

But in that assertion he is mistaken. In that case the construction was not accepted and used without objection, and the plaintiff was not shown, as in this case, to have expressed his satisfaction with the -work. We adhere to the principle therein announced, that payment of the price will not by itself be conclusive proof of a waiver of damages. But we do hold here, as we did there, that such a. settlement must be considered as one of the links in the chain of evidence which demonstrates that by his acts in the premises, this plaintiff has effectually waived all claims to damages.

On the score of errors in his settlement, plaintiff charges that defendant interpolated in one of his drafts a stipulation for interest from demand, and he claims the return of interests thus unlawfully collected. But the record shows that he was informed of the addition made to his draft, and that he approved of the same. He charges error in a debit of fifteen dollars which should have been set to his credit on the account. But it appears that he was allowed credit for thirty dollars on a note of his held by defendant. He complains that he was charged twenty-eight dollars and twenty-four cents for a strike-tank which figured in the contract of the value of eighteen dollars. But the record shows that at his own request, the tank furnished was larger in dimensions, and, therefore, more costly. Ho charges several other minor errors, but his complaint is met by satisfactory explanations and by full proof of the correctness of each item alleged to be erroneous.

We have failed to find any error, to his prejudice, either in his settlement with the defendant or in the conclusions of the district judge.

Judgment affirmed.


text:
    No. 8970.
    Louis Johnson vs. Bernhard Meyer.
    An action for damages for the wrongful issuance of a writ of provisional seizure, not being based on any bond, is for a quasi offense and prescribed by one year.
    An action of ejectment by a landlord against a tenant, unaccompanied by any interference with person or property, forms no ground of claim for damages, without clear proof of malice and want of probable cause.
    The landlord’s right of re-entry into the leased premises, after the expiration of the lease, is absolute; and whore the person left in physical possession by the tenant voluntarily surrenders the keys and possession to tho landlord, even against the tenant’s will, the landlord’s peaceable entry violates no right of the tenant and gives the latter no claim for damages. '
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.
    P. J. Kramer and A. J. Ker for Plain till’ and Appellee.

      L. K. Bouclierean, A. A. Ker and J. Duvignecmd for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is an action sounding in damages resulting from three alleged causes, viz:

1. That defendant, having leased certain premises to plaintiff, wrongfully sued him for rent which was not due and caused a writ of provisional seizure to be issued, under which his property was seized and which was dissolved by the court as having been wrongfully issued.

The provisional seizure was executed ou the 18th, bonded on the 20th and dissolved on the 24th of June, 1881. The present suit for damages was filed on September 29,1882.

The plea of prescription of one year, as to this cause of action, was manifestly well taken.

2. That on tlio I4tli of July, 1881, during' tlio pendency of the lease, defendant instituted an action for possession of tho premises, which was decided against him.

As this action was not accompanied by any process interfering with person and property and is not shown to have been maliciously prosecuted, it furnishes no ground for an action of damages.

3. That on the 2d day of October, 1881, defendant took possession of the property which had been leased, during the absence of plaintiff from the city and without his consent.

The evidence is uncontradicted that the lease exirired on the 30th of September, and the landlord’s right of re-entry was absolute unless he had permitted the tenant to remain for a week without opposition, which lie had not done. 0. 0. 2089.

Defendant demanded possession on the 1st of October, when plaintiff’s attorney, who was present, refused to permit him to take it. Subsequently, the person had been left in physical possession of the house surrendered the keys to defendant and voluntarily gave him possession. Wo can conceive of no right of plaintiff that was violated thereby and are at a loss to discover on what ground damages could be recovered for such entry.

The pendency of a suit lor possession, instituted long prior to the expiration of the lease, could have no influence on the absolute right of the landlord to re-enter after its expiration.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now decreed that plaintiff’6 demand be rejected at his costs in both courts.


author: Manning-, J.

text:
    No. 9126.
    The State of Louisiana vs. William Brooks.
    Tho additional jurors, which tlio Act of 1877 empowers tho judge to lmvo drawn, are a part of tho rogular panel, and their names should ho placed in tho jury hox along with those drawn before tho mooting of court, and aro to bo offered for accoptanco or rejection as chanco may determino.
    A jury law with its complex details must bo so construed ns equally to conservo tlio interests of the public in tho vindication of law and order, and to guard tlio right of individuals to a fair and impartial trial.
    PPEAL from tho Twelfth District Court, Parish of Rapides. x JL Blackman, J. -

      J. O. Bgcrn, Attorney General, for the State, Appellee.

      B. J. Hertsog and R. P. Hunter for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning-, J.

The prisoner was convicted of murder and was sentenced to be banged. The case comes up on a single hill of exception, and on this state of facts.

Jurors had been drawn for the term, a certain member for each week, as usual. The term had progressed until tho judge, admonished by the state of the docket, ordered thirty additional jurors to be drawn for the third week. The objection appears to be, not to the drawing by the commissioners, but to depositing tho names of the additional jurors in the jury box used in court, thereby mixing them with the regular jurors already therein for that week.

That was the proper place to put them. These additional jurors are a part of the panel, so made by the act which empowers the judge to have them drawn as regular jurors, Sess. Acts 1877, p. 57 sec. 7, and their names should be with the others of the regular panel previously drawn for the service of that week.

The reason urged for the objection is that the law requires the publication of the names of j urors drawn for a term, and that persons accused of crime thereby have tho advantage of knowing beforehand who are to be offered to them to pronounce their guilt or innocence, and should therefore have the privilege of first accepting or rejecting those thus published before any others are tendered them.

To all appearance tho statute has gone a great way to facilitate the escape of the criminal class from punishment when it gives them information who are to be their triers long enough before trial to enable an accused to tempt their integrity, and thus sap the foundation of trial by jury. But that which the law may give, it may withhold, and it has not directed the publication of these additional jurors’ names, nor given to them the quality of talesmen, but has made them an addition to the regular panel, like them to be offered as chance may determine.

That construction of the jury statute will best subserve the purposes of justice which ignores verbal and technical objections, when no great wrong has been committed, and such is tho spirit as well as the letter of that law when it directs that certain irregularities shall not be considered important. Ibicl. sec. 10. A jury law' with its complex details may be made by construction either an inflexible piece of mechanism, which shall hinder and obstruct the administration of justice and in no wise fulfill the purpose for which it was framed; or it may be moulded into a harmonious system of judicious rules for the selection of good men and true, equally adapted to conserve tho interests of the public in the vindication of law and order, and to guard tho right of individuals to a fair and impartial trial. Our duty is to redress the tendency to the first method and to hold the last steadily in view.

Judgment affirmed.


text:
    No. 9055.
    The State of Louisiana vs. Giles Frances.
    Under an indictment for shooting with intent to commit murder, it is unnecessary to charge specifically that the accused did ‘'wilfully, feloniously and of his malice aforethought,” shoot, etc. It is not defective where the words ''feloniously and with intent to commit murder” are used. Those words arc amply sufficient under the Statute.
    Uudcr such a charge, the jury can find a verdict under either Section 791 or 792 of the Revised Statutes. The two crimes provided against are of the same generic class, the greater including the less.
    In such a case, a verdict of “ Guilty of shooting at witli intent to commit murder,” is responsive to the indictment.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.

      J. 0. JSgan, Attorney General, for the State, Appellee.

      J. JET. Lanson and 71. D. Beale for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

Tlie defendant was prosecuted for shooting- with intent to commit murder. He was convicted of shooting at with intent to commit murder and sentenced to six months at hard labor. . On appeal he complains that:

1.The indictment is fatally defective and cannot sustain a conviction, as it does not contain the indictable words of the Statute.

2.That the jury were misled by the charge of the trial judge, who instructed them that they could return a verdict either under section 791 or section 792 of the Revised Statutes.

3.That the verdict is not responsive to the indictment.

T.

The indictment charges that: Giles Prances, * " * * then and there being, feloniously did shoot, with a dangerous weapon, with intent to commit murder, Abraham Ray, etc.

The Statute provides:

Section 791. Whoever shall shoot * * * any person with a dangerous weapon, with intent to commit murder, * * * shall on conviction suffer,” etc.
“See. 792. Whoever shall assault another by wilfully shooting it him, or with intent to commit murder, * * * shall on conviction * * * be imprisoned, * * * ” etc.

The complaint is, that the indictment does not charge that the accused did, “wilfully, feloniously and of his malice aforethought, slioot,” ote.; that those words are essential averments, as the attempt to commit murder is the offense charged.

The indictment charges that the accused feloniously did shoot, with a dangerous weapon, with intent to commit murder. It is drawn in accordance with the statute, which does not expressly require that the shooting must have been done wilfully, feloniously and with Ms malice aforethought. The words used in the indictment, “feloniously,” and “with intent to commit murder,” are amply sufficient. 29 A. 601; 27 A. 572 ; 33 A. 911, 1294; 24 A. 191, 494; 34 A. 529, 147.

H.

The judge did not err in charging Hie jury as he did.

The crimes provided against by the two sections, 791 and 792 R. S., are of the samo generic class, the greater including the less. The indictment contains all the averments necessary to admit proof under either section, and the jury could therefore return a verdict under the one or the other.

III.

The verdict reads: “Wo return a verdict of guilty of shooting at, with intent to commit murder, and recommend the accused to the mercy of the court.”

Shooting implies shooting at, where the charge is that it was feloni-ously done, with intent to commit murder.

Judgment affirmed.


author: Boché, J.

text:
    No. 9146.
    Succession of Philip Hoggatt.
    On a rule on administratix to pay debts.
    The decretal part of a judgment rendered by the Supremo Court, and not the opinion or the reasons, afford the proper test to ascortnin the matters which become res adjudicator undor tlio docrco.
    An order or judgment rescinding an order of appeal previously obtained by a party to a suit will bo annnllod and sot aside if it apnoars that the rescinding order was rendered after tho death of the party who had obtained the appoal.
    The latter’s administrator is competent to prosecute an appeal from such a judgment.
    APPEAL from the Eighth district Court, Parish of Madison. . Delony, J.

      James T. Oolenian for Plaintiff and Appellant.

      Jno. P. Stone for Defendant and Appellee.
   N to Dismiss.

Tlie opinion of tlie C. as delivered by

Boché, J.

Tlie administratrix urges that this appeal caniiot be maintained because it is taken from a judgment which had already been pronounced a nullity by a decree of this Court.

The following statement of previous proceedings is necessary to a proper understanding of the grounds of this motion:

In the suit of Thomas S. Martin vs. Thomas W. Watts and Philip Hoggatt, a final judgment was rendered by this Court in March, 1882, in favor of Martin and against Watts and Philip Hoggatt, through the administratrix of the latter, who had died pendente lite.

Subsequently, Martin took a rule against the administratrix of the Hoggatt succession looking to a sale of property to satisfy his judgment. On a defense alleging the nullity of that judgment the rule was dismissed by a decree signed on January 12, 1883, from which judgment a devolutive appeal was obtained on the same day.

On return of that appeal to this Court, in February, 1883, appellee moved for its dismissal on the ground that Martin had died on the. 13th of January, 1883, and that no appeal bond had been furnished by himself or by his legal representative. That motion prevailed and the appeal was ordered to be stricken from our docket, for the reason that no appeal was properly before us. Opinion Book 57, fo. 546.

In the meantime, on January 17,1883, the appellee had filed amotion for the rescission of the. order of appeal of the 12th of that month on the ground of the alleged acquiescence of appellant in the judgment complained of. That motion was sustained in a judgment rendered on the 19th of the same month.

The present appeal was granted on petition of the administrator of Martin’s succession, on January 14 of the present year, and is from the judgment of January 19, 1883, rescinding the order of appeal of January 12, preceding.

The merits of the motion turns upon a correct construction of our decree striking the case from our docket.

That decree was not intended to declare the nullity of any proceedings which had taken place in the lower court; and, hence, it cannot be construed as having any greater effect than to brush away the appeal which was not properly before us. Any language in the opinion intimating that all proceedings had after the death of Martin were null, is nothing more than an exxiression of opinion, and a declaration of a well'recognized principle of law.

In order to ascertain the matters which are adjudicated in a judgment, recourse must be had to the decretal portion of the judgment and not the body or reasons of the same. Having refused to entertain the appeal, the Court could not, and did not, assume to pass upon any matters or issues involved in the judgment appealed from.

The present appeal presents the question of the validity of the order rescinding the devolutive appeal taken by Martin, before his death; it is properly before us, hence, the motion to dismiss cannot prevail.

On the Meihts.

It is conceded by both parties that Martin died on January 13, 1883, hence, it follows that the judgment rendered on January 19, rescinding the order of appeal, previously granted him, is an absolute nullity and must be set aside.

But this case, however, presents a very anomalous state of affairs.

For instance, we have appellee who loudly proclaims the nullity of the judgment in question, rendered in her favor. And, on the other hand, appellant’s counsel disclaims,,, as a reason for its nullity, the fact that Martin had previously departed this life. His contention is that the record affords no proof of Martin’s death, and, hence, he is clamorous for a decision reversing the rescinding order on its merits.

In the heat of argument his counsel manifestly forgets that this very appeal rests on an order granted on the petition of “A. W. Crandell, administrator of the succession of Thomas S. Martin,” who, it is stated therein, died in Louisville, Ky., on the 13th of January, 1883.

Hence, we. rest our conclusion as to the nullity of the rescinding order on the fact that it was rendered against Martin after his death.

But before closing, we must correct another error of appellant’s counsel, who thinks that on this appeal wo have the power to dispose of the judgment discharging his rule on January 12, 1883. In his petition of appeal ho had prayed for an appeal from both judgments — that rendered on January 12th, and the other rendered on January 17th, following.

But in his order on that petition the district judge very guardedly restricted the appeal to the judgment rendered on January 19th. That restriction has doubtless occupied counsel’s attention. But, nevertheless, its effect is unavoidable and its result is that the judgment of January 12,1883, is not before us. Hence, we cannot look into it.

The effect of the decree which wc propose to render in the premises will remove the obstacle which stood in the way of the appeal taken by Martin before bis death. We express no opinion as to the status of that appeal, or in answer-to appellee’s suggestion that it is now too late to perfect and bring it up.

It is, therefore, ordered and decreed that the judgment rendered on January 19, 1883, purporting to rescind the order of appeal granted from the judgment of January 12th, preceding, be and the same is hereby reversed and set aside at appellee’s costs in both courts.


text:
    No. 9099.
    Emile Droz vs. Parish of East Baton Rouge.
    Rule on Garnishee.
    Garnishment by a judgment creditor of a parish of the parish funds in the bands of the parish treasurer is equivalent to garnishment in the hands of the debtor.
    The taxes and revenues of a municipal corporation cannot be subjected to seizure, either in its treasury or in transit thereto, or evep in the hands of the tax debtors.
    PPEAL from the Seventeenth District Court, Parish of East Baton A Rouge. Sherburn, J.

      K. A. Gross for Plaintiff and Appellant.

      Geo. W. Buchner for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, a judgment creditor of the parish of East Baton Rouge, issued a writ of fi. fa. and by process of garnishment and interrogatories to the treasurer of the parish, sought to seize, in his hands, the funds of the parish derived from the collection of its taxes and other public revenues.

The xiroceeding is entirely untenable. It is equivalent to a garnishment of the debtor himself. Nothing is better settled than that the taxes and revenues of a municipal eor]ioration cannot be seized, either in the treasury or when in transit to it, or even in the hands of the original debtors thereof, by garnishment or otherwise. Dillon on Municipal Corp. secs. 64, 65; Edgerton vs. Municipality, 1 A. 435; Municipality vs. Hart, 6 A. 570; Railroad Company vs. Municipality, 7 A. 148.

Judgment affirmed, at axqiellant’s cost.


text:
    No. 9037.
    The State of Louisiana vs. Nathan Washington.
    Applications for new trials in criminal cases on tiro ground of newly discovered evidence must always 'bo received wit!) caution." Tire inducements to false swearing on the part of the person convicted aro obvious, and therefore the rule is well established that his affidavit alone will not suffice. It must be supported by the affidavits of others, and when possible, by those of the newly discovered witnesses.
    The mere statement that the accused did not know of the testimony in time to have brought it forward, is not sufficient. It must appear that he could not have ascertained it by reasonable diligence.
    Great reliance is placed upon the trial courts by appellate tribunals that they will exercise the discretion entrusted to them, in the matter of granting new trials in criminal cases, well and wisely, and consequently their refusal to grant them is rarely disturbed.
    PPEAL from the Sixth District Court, Parish of West Carroll. Brigham, J.

      J. G. JSgan, Attorney General, for the State, Appellee.
    The Defendant and Appellant unrepresented in this Court.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of inflicting a wound less than mayhem, and was sentenced to hard labour for one year, and was fined fifty dollars.

A bill was taken to the refusal of the judge to charge “that drunkenness does excuse crime where, in the absence of criminal intent, the condition of the accused was such that he knew not what he was doing, and intended no offence.”

The charge thus requested is erroneous as an abstract proposition of law, and if it had been correct, there is nothing to shew that it had any relevancy to the case. On either ground it was properly refused.

A new trial was prayed on several grounds: 1 — because at the time of the assault the defendant was not in a condition to know what he was doing, or to remember what happened, or who were present, and was consequently unable to get together all the evidence in his behalf; 2 — that he has discovered since the trial new and' material evidence, and then goes on to recite what it is, and by whom he can prove it, which he alleges will establish that he acted in self defence. The prisoner’s affidavit is appended to the motion, and his alone.

Applications for new trials on the ground of newly discovered evidence must always be received with caution. The inducements to false swearing on the part of the person convicted are obvious, and therefore the rule is well established that the application for the new trial must be corroborated by tlie affidavits of otlicr persons than the party convicted. If possible, the affidavits of the newly discovered witnesses should bo produced. Pleasant vs. State, 8 Eng. 360.

There is also something else required than the mere statement that the accused did not know the existence of this testimony in time to have brought it forward. It must affirmatively appear that lie could not ! ave ascertained it by reasonable diligence. His affirmation, that he did not know what was done or who \\\ re present at the assault, develops into a flimsier pretext than even appears on its face, when the record is scrutinized and ho is there disclosed to have been arrested on Ma,y 30th, released on bond instanter, and not tried until October.

Largo discretion is given the trial courts in the matter of granting new trials in criminal cases, and great reliance is placed upon them by appellate courts that they will exercise that discretion well and soundly, and their action thereon is rarely disturbed. Jones vs. State, 1 Kelly, 610; State vs. Camp, 23 Vermont, 551; Pate vs. People, 3 Gilman, 644.

Judgment affirmed.


text:
    No. 9132.
    Booksh and Gay vs. John A. Dardenne et al.
    Act 104 of 1882 and Act 88 of 1880, which is amended, refer not only to levees kept by the State, but also to district or parish levees kept otherwise, which are designed to protect the public from overflows from the Mississippi river.
    Police juries have the right to make such regulations, not already provided for by law, as may be necessary to carry out fully the provisions oi the statutes on the subject, subordinate to ihe disapproval of the Board of State Engineers, whose authority, in case of conflict, must prevail.
    A party who has not obtained the prescribed permission of the police jury, or, who having obtained it, has not paid the required license, has no right to out such levees and place and use flumes therein for the purpose of irrigating his fields.
    APPEAL from the Twenty-third District Court, Parish of Iberville. . Pope, J.

      David N. Barrow for Plaintiffs and Appellants.

      E. B. Talbot for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit to prevent the closing of flumes by the police jury, to the use and enjoyment of which the plaintiffs claim to be entitled to irrigate their fields.

The district judge states the facts and the law of the case in the following language:

“ Booksh and Gay, the plaintiffs, cultivated in rice their plantation situate on Bayou Grosse Tete, within the Fordoche and Bayou Grosse Tété special levee district, and for the purpose of irrigating their fields have cut the public levee running along the bank of Bayou Grosse Tete and placed therein two flumes without previously paying hito the parish treasury, according to law, the license due since the year 1880.
“John A. Dardenne, president of the police jury, and Peoria Halli-day, inspector, being about to close their flumes in default of payinen t of the license, the plaintiffs have enjoined them, for the reason that the Act of the Legislature, No. 88, passed during the session of 1880, has no reference whatever to the special levee district above named and only affected levees made by the State; and admitting that it did, these officers could not forfeit petitioners’, rights without recourse to judicial proceedings.”

The title of Act 88 reads: “An Act to provide for the protection and preservation of completed public levees,” etc. Section 5 of said act provides: “ That no person shall be permitted to insert in any public levee kept up- by the State, or any special levee, district or parish, any flumes or piping to be used for flushing rice fields, or other purposes, unless upon written application of the owner of the land he shall have obtained the consent of the police jury where the levee may be located, to permit him to make use of said flumes or piping.”

This section includes and refers to all public levees kept by the . State, special levees, district or parish, and its terms appear to the Court sufficiently clear.

The levee cut is kept by the Fordoche and Bayou Grosse Tête special levee district and is intended to protect the public from overflow from the Mississippi River.

The other grounds appear untenable.

Have plaintiffs any right or interest in the flumes to be closed?

Section 6 of said act provides: “ That in addition to conditions prescribed in the preceding section, the party applying for permission to cut the levee and place therein flumes or piping, shall pay previously into the parish treasury an annual license,” etc.

So that, according to these two sections cited, there are two conditions precedent to plaintiffs having any right to these flumes:

1. That they have the permission of the police jury.

2. That they have paid the required license.

It appears by tlie pleadings and admission of parties, that tlie latter condition lias never been complied with. Hence, tlie Court is of opinion that Act 88 of 1880, does include and embrace the Fordoclie and Bayou Grosse Téte special levee district and that plaintiffs have no right or interest in the flumes in question until they pay into the treasury of the parish of Iberville the amount of the license due by them.

We have examined Act 104 of 1832, p. 156, which proposes to amend Act 88 of 1880, and consider that both, in their titles and provisions, refer, not only to levees kept by the State, but also to district or parish levees kept otherwise, which are designod to protect the public from overflows; and that police juries have the right to make such regulations, not already provided for by law, as may be necessary to carry out fully the provisions of the Statutes on the subject, subordinate to the disapproval of the Board of State Engineers, whoso authority in cases of conflict shall prevail.

For these reasons the plaintiffs have no right to complain.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed, with costs.


text:
    No. 9093.
    New Orleans Pacific Railway Company vs. George M. Murrell.
    In proceedings by a railroad company for the forced expropriation, of lands for the construction of its road, the test of the value of the lands is their market valuó as shown by the evidence. The assessment of a plantation of several hundred acres of land, among which is a large proportion of swamp lands, at an average price per acre, by the owner, will not estop him from proving a higher value of that portion of his lands which the railroad company proposes to use.
    The railroad company is responsible for all impediments to drainage and to the system of cultivation which the location of the road causes to the owner of the expropriated and contiguous lands. Vicksburg, Shreveport and Pacific K. R. Oo. vs. Dillard; Bourdier St Bebiesen vs. Morgan R. R. Co. Affirmed.
    A PPEAL from the Twenty-third District Court, Parish of Iberville. Jrx. Hébert, Judge ad hoe.

      Kennard, Howe & Prentiss for Plaintiff and Appellant.

      David H. Barrow for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

This suit, which has for its object the expropriation of so much of defendant's lands as may be necessary for tlie construction of plaintiff’s road, and the adjustment of the value of the same, and of damages occasioned to defendant by the location of the road, was before rrs in April, 1882. 34 A. 536,

As the jury of freeholders had erroneously compensated the value of the right of way and of the damages caused to defendant, by certain works which they required the railroad company to perform on defendant’s plantation, we remanded the cause with instructions to the court to direct the jury to ascertain, in details, the value of the lands and the items of damages which the nature of the case would call for.

This appeal is taken by plaintiff from the judgment predicated on the finding of the second jury of freeholders empanelled under our order remanding the cause.

Their verdict was, in substance, as follows :

1. They allowed for the company’s’ right of way, 5 74-100 acres, which they valued at $50 per acre, making the sum of. $ 287 00

2. They allowed to defendant as expenses for changing head lines, building bridges and roads on both sides of the railroad . 522 00

3. They allowed to defendant for damages to 150 acres of land, including the loss by small triangles, by rain -water backed up on said lands by an embankment thrown up in the rear of the same, the sum of. 1800 00

Total amount allowed by verdict.$2609 00

Plaintiff’s complaint is that the verdict is largely excessive,'and we are urged to reduce it by more than one-half.

1. As to the value of the right of way, it is contended that, as the defendant himself in his assessment had valued his plantation containing 1063 acres, in area, at $20 an acre, that figure should be the maximum of the allowance for iris lands.

This is hardly a fair test for a plantation which contains a large proportion of wood and swamp lands which, together with the front and improved lands, are valued at an average of $20 an acre.

The verdict of the jury is amply supported by the testimony of competent and disinterested witnesses.

2. The damages allowed under the second item of the verdict are intended to cover the expenses for re-establishing the fields which have been cut up and disarranged by the road.

The plantation is situated on the Mississippi river whence it extends to the rear between slightly opening or diverging lines, and is established as a sugar plantation. Hence, it contains numerous roads and ditclies, and is distributed into sub-divisions commonly known as “ cuts,” so as to facilitate the cultivation as well as the drainage of the lands.

Now, as the railroad crosses the plantation diagonally, it follows that the cuts bordering on. both sides of the road are all disarranged and that in thosi parts of the field a new division must be made and a new system of cuts must be established. This operation necessitates the closing of certain ditches and the cutting of others; the filling up of certain cross roads, and the laying out of new roads, so as to fit the new head lines, and it necessitates the removal of old bridges and the construction of new ones, so as to connect the new cuts with the main or leading roads.

The plantation has upwards of twenty ditches and contains numerous cuts to be attended to, and the evidence shows conclusively that the allowance of the jury for these important items is very reasonable.

3. The third item covers mainly the damages to the drainage of the plantation.

The record shows that its main drainage is by means of a bayou which runs to the rear, at about the centre of the place, and that several hundred acres of its lands had a surface drainage to that bayou which is crossed by the railroad at a point where such lands are in the main situated. The embankment of the road impedes that drainage, and, after heavy rains, the waters stagnate two or three days on these low lands, and sometimes hack up on the higher and better lands of the place. In consequence of this defective drainage a large quantity of these lands have become unfit for cultivation. In addition to this, the record shows that the boxes and flues placed by the company in the leading ditches are defective, many of them being- placed too high in the ditches, and others are too small for a free flow of the waters, from which, considerable damage is caused to the drainage of the place.

This ■ item also covers the loss occasioned to the place by the total loss of parcels of land included in triangles formed by the bayou mentioned above, the railroad and large ditches.

A careful scrutiny of the testimony has satisfied us that the allowance on the score of such damages is quite reasonable.

The rule of law requires of a railroad company, in enforcing its right of way over the lands of others and in constructing its road, to have the adjoining lands and fields which it crosses, in the same condition as regards the facilities of cultivation and as concerns the utility of those lands to tlieir owners, as they were before the entry of the' company. Bourdier & Belliesen vs. Morgan’s Louisiana and Texas R. R. Company, 35 A., 947; Vicksburg, Shreveport and Pacific Railroad Company vs. Dillard, Foster et al. 35 A. 1045.

The record shows that, as the road crosses the defendant’s plantation at a considerable distance from the sugar-house, in the rear thereof, and as the plantation has its shipping facilities from the Mississippi river, it derives little or no benefit from the location of the rdad. We are unable to find any fault with the verdict of the jury. ’

Judgment affirmed.