text:
    No. 9461.
    Butchers’ Union Slaughter-house and Live Stock Landing Company vs. Crescent City Live Stock Landing and Slaughter-house Company.
    The opinion and decree of this Court in the case of che Crescent City Slaughter-house Co. ■ vs. The City of Hew Orleans, 33 Ann. 934, was ■ an authoritive judicial decision that Articles 248 and 238 of the Constitution of 1879 were valid and impaired no contract right of said company; that the city of Hew Orleans had the lawful right, with the concurrence of the Board of Health, to regulate the business of slaughtering within its limits, and to designate places where such business could be conducted, and also, by necessary consequence, that all persons complying with such regulations had the right to pursue said business within such designated limits. This decree was subject to reversal only by a judgment of the Supreme Court of the United States, and until so reversed, was binding as absolute law upon the parties thereto.
    In prosecuting a subsequent suit in the U. S. Circuit Court for an injunction to restrain a X>arty complying with the regulations of the city from prosecuting said business at Iliacos so designated, which suit had no foundation except in the assumption that the decree of this Court was not law, the defendant corporation acted without jjrobable cause and can find no sanction for its course, either in advice of counsel or in the decision of the circuit court sustaining such assumption. The decree of this Court fully advised the parties what was the law, and it was not justified in acting contrary thereto upon any advice whatever.
    The record sufficiently establishes that the party in bringing said suit not only acted without probable cause, but was also actuated by legal malice, i. eby improper motive, being the determination to prolong its enjoyment of a profitable monopoly, without regard to the legal rights of others.
    Held that defendant is liable for damages occasioned to iilaintiii*, not only by the unlawful-issuance of the injunction, but also by the malicious prosecution of the suit.
    In regard to the quantum and elem nts of damage, the contentions of defendant are considered and overruled and judgment affirmed.
    APPEAL from the Civil District; Court for the Parish of Orleans. BUjhtor, J.
    7?. 77". MoGaleb and B. Ti. Ifornum for Plaintiffs and Appellees :
    1. One Tvho las judicially admitted the legal existence of a corporation is estopped from Iileading nul tiel corporation, when afterwards sued for damages on the injunction bond and for malicious prosecution. B. C. C. Art. 2291; 14 Ann. 308; 33 Ann. 732, 1444; 94* U. S. 104, 673.

      2. A petition stating the name of a corporation and also the name of its president is in strict compliance with law. R. C. C. 439; C. P. 112,198.
    3. In an action for malicious prosecution, malice may he inferred from the want of probable cause. 33 Ann. 776; 9 R. 387, 418; 9 Ann. 219. Malice to support this action is any improper motive—it need not imply malignity, Drake on Attachment, § 733. J’robable cause means reasonable grounds of belief, supported by circumstances sufiiciently strong to warrant a cautious man in that belief. 33 Ann. 392.
    4. As to the measure of damages, the true standard seems to be the expenses incurred and profits lost. 27 Ann. 191, In an action for malicious prosecution, where the jury gave the plaintiff £10,000, the court refused to interfere on account of the largeness of the verdict. 2 W. HI. 1326.
    5. Where the exclusive privilege conferred upon the Creocent City Slaughter-house Company had been upheld as a lawful exercise of the State’s police power, (22 Ann. 545; 16 Wall. 36.) and afterwards all monopolies were abolished by the Constitution of 1879, (Arts, 235, 248, 258), and the State Supreme Court had finally decided in a suit provoked by the said Slaughter-house Company that its exclusive privilege was not a contract and had heen lawfully revoked (33 Ann. 934), and the theu IT. S. Circuit Judge (subsequently promoted to the bench of the U. S. Supreme Court) refused to interfere on an application for injunction made by the Slaughter-house Company, and where a suit involving the same questions between the same parties was pending in a State court of competent jurisdiction, the subsequent application for an injunction to the successor of the United States Circuit Judge by a citizen of Louisiana against a citizen of Louisiana; the prior application and the refusal thereof being concealed and suppressed—and the granting and maintaining of such an injunction under the pretext that the exclusive privilege of slaughtering animals was a vested right and contract protected by the Federal Constitelion (111 IT. S. 746), was a contempt of the State court where the question was pending, (20 Wall, 392; 16 Wall. 370), an illegal disregard of the final decision and judgment of the State Supreme Court previously rendered, (7 How. 624), and a trifling with courts which should not he countenanced or tolerated.
    The opinion and decree of the United States Circuit Judge in such case (9 Federal Rep. 743), he having no jurisdiction whatever over the controversy, by reason of the citizenship of thoparties, which decision was subsequently reversed by the United States Supreme Court, (111 V. S. 746) furnishes no excuse for such unnecessary and malicious suit, and cannot he invoked as constituting probable cause for the prosecution in answer to an action for the damages caused thereby.
    6. In an action for malicious prosecution the defendant cannot justify by the advice of an attorney personally interested. 71 Maine 555; 36 Am, R. 353. Hor if he acted from motives of private interest, and without probable cause. 15 Ann. 672.
    7. Where the whole case is before the Appellate Court, it will not pass on hills of exceptions taken to the refusal of the judge to charge the jury as requested. 23 Ann. *¡5 ; 21 Ann. 330; 22 Ann. 603.
    8. Instructions requested which are mere liypothieal propositions wore properly refused. 2 Ann. 756.
    9. The charge of the trial judge not having been reduced to writing, this Court will presume that he stated the law correct) j to the jury. 7 H. S. 250. Appellant should have required his opinion in writing. C. P. 517; 5 R. 216.

      White cC* Saunders and Robert Mott for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

This is an action by the plaintiff corporation to recover damages for injury sustained in consequence of the malicious proseentiou of a, civil suit against it by the defendant, and of the wrongful issuance of an injunction therein.

A resume, of the events preceding and attending the institution of the suit referred to, will facilitate the comprehension and disposition of the issue! of law and fact involved.

By an act of the legislature, No. 118 of 1869, the State granted to the Crescent City Slaughter-house and Live Stock Landing Company a monopoly or exclusive right of carrying on the business of live stock landing and slaughtering within the parishes of Orleans, Jefferson and St. Bernard, for a period of twenty-live years.

The Constitutional Convention of 1879, revoked this grant, in so far as its exclusive or monopolistic features are concerned, by adopting Articles 248 and 258 of the present Constitution of the State.

Article 258 declared.that “the monopoly features in the charter of any corporation now existing in this State” (with certain exceptions not pertinent to this case) are hereby abolished.”

Article 248 provided that “ the police juries of the several parishes and the constituted authorities of all. incorporated municipalities of the State shall alone have the power of regulating the slaughtering of cattle and other íive-stock within their respective limits; provided, no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation; pi oviding the ordinances designating the place for slaughtering shall obtain the concurrent approval of the Board of Health, or other sanitary organization.”

If these provisions of the organic law of the State were valid, it is clear that the exclusive privilege granted to defendant by Act L18 of 1869, was swept out of existence; that the city of New Orleans had the undoubted right, with the approval of the Board of Health, to pass regulations and establish localities for the conduct of this business within her limits; and that any person complying with such regulations, would have the absolute right to establish and conduct the business within the limits fixed.

The only possible ground upon which the defendant corporation could oppose the right of the city to pass regulations and the right of persons complying therewith to carry 'on the business, lay in the denial of the validity of the constitutional provisions, because impairing the obligation of its contract embodied in Act 118 of 1869, and thus conflicting with the Constitution of the United States.

The questions involved were serious and important. Defendant’s right to assert judicially the validity of his contract and to resist, by all legal remedies, the execution of any State laws which impaired, it, was unquestioned. The question involved was federal in its nature, and the courts of the State and, perhaps, of the United States were equally open to it for the vindication of its alleged right; and, in either forum, it was entitled to appeal to the Supreme Court of tlie United States for the final and conclusive settlement of the question.

Shortly after the adoption of the Constitution, certain butchers petitioned the council of the city of New Orleans to take action with regard to establishing limits and regulations for slaughtering. The matter was referred to the city attorney, who reported an opinion favorable, to the validity of the constitutional provisions and to the right of the city to act in the premises.

Thereupon defendant conceived that the time had arrived for it to invoke the aid of the courts to protect its alleged contract rights. It then exercised its election as between the Federal' and the State courts, and concluded to submit its claims primarily to the latter.

Accordingly, on February 5,1880, it filed a petition in the Fifth District Court for the Parish of Orleans against the city of New Orleans, alleging that the hitter had entertained the petition of the butchers and was about to designate places for slaughtering other than defendant’s own slaughter-house; asserting its exclusive privilege under a contract protected by tlie Constitution of the United States; asserting the nullity of the provisions of the Constitution of the State in so far as they impaired or interfered with said contract and praying for an injunction, restraining the city '‘from ever designating a place or places for the landing, yarding, sheltering or slaughtering animals, etc., other than at the slaughter-house and premises of petitioner.”

The city of New Orleans answered, substantially, setting up the provisions of the State Constitution as her warrant for the action which she was about to take in designating slaughtering places within her limits; asserting their validity and denying that they impaired any contract right of the petitioner which was protected by the Constitution of the United States.

The issue thus joined in a competent forum, of tlie company’s own selection, passed regularly to trial and determination in the district court, was appealed to this Court, and after full hearing, in May, 1881, we rendered onr opinion and decree, wherein we considered all the positions and arguments of the parties and held that Act No. 118 of 1869 did not create a contract protected from impairment by the Constitution of t-liii United States, but that the rights therein granted, being-related, to subjects affecting the public health, were revocable at the will of the sovereign; aud we affirmed the j ndgment of the lower court which was in favor of the city and rejected the demand of the company.

It is important to estimate the scope and effect of this decision. It was an authoritative judicial determination, by a competent court, of questions submitted to it at the instance of the company itself. In denying the rights claimed by the company, and in affirming the right of the city to regulate slaughtering within her limits aud to designate places lor the conduct of such business, it necessarily affirmed the right of persons complying with such regulations to transact that business at such places and denied the right of this company to interfere with them. If there was error in the decision, that error could he corrected by one tribunal only, the Supreme Court of the United States. Until the questions involved had been determined differently by that high tribunal, the decision of this Court was entitled to he accepted as the law by this litigant.

Technical principles of lis pendens and res jiulieata might not debar the company from prosecuting another suit against a different party involving the same subject-matter; but if such suit rested exclusively upon the assertion of rights which this Court had directly determined that the company did not possess, it could find no protection against the charge of being a malicious prosecution save in the production of a decision of the Supreme Court of the United States holding that our opinion was error.

To proceed with the facts of this case: Shortly after the adoption of the Constitution, the plaintiff in the present case had been organized as a corporation for the purpose of conducting a slaughter-house business aud, in anticipation of action by the city aud Board of Health under Art. 248, had bought land and commenced the erection of buildings for the purpose.

On the 17th of November, 1881, the city council had passed certain ordinances designating places for the slaughtering of animals within the city limits, and including therein the point at which the Butchers’ Union Company had located their building, and these ordinances were under consideration by the Board of Health, and actually received the approval of that body on November 25 ; but, anticipating tin- action of the Board of Health, on the 23d of November, the Crescent City Company filed in the U. S. Circuit Court a bill in equity against the Butchers’ Union Company, wherein it set forth that the city council had passed the ordinances; that the Board of Health would approve them; that “thereupon, the Butchers’ Union Company, unless restrained therefrom by a writ of injunction, will proceed to construct and erect slaughter-houses, etc., and there conduct and cany on the business of live-stock landing, slaughtering, etc.”

It thus alleged the existence of every condition essential, under the prior decision of this Court, to seeuro to the Butchers’ Union Company and others the absolute right to prosecute the business without interference bj" the complainant, and then proceeded to propound the identical grounds which had been considered and overruled by this Court, and prayed for a writ of injunction restraining the Butchers’ Union from proceeding with the construction and* maintenance of buildings, etc, and from carrying on anywhere within the parishes of Orleans, Jefferson and St. Bernard, the business of stock landing and slaughtering, except at complainant’s own premises.

The judges of the circuit court entertained the bill, granted a rule for injunction pendente lite, heard the parties, reviewed aud reversed our opinion, issued the preliminary injunction, subsequently heard the cause on demurrer and pleas, and rendered a final decree perpetuating the injunction. This decree was carried by appeal to the Supreme Court of the United States, aud in April, 1884, that Court reversed it, referring to and adopting the views which had been expressed by this Court in the case already referred to.

The present action, as already stated, is for recovery of damages sustained in consequence of the alleged malicious prosecution of the above suit and of the wrongful issuance of the injunction.

Was it a malicious prosecution ?

To sustain this charge it is necessary to show : 1st. That the suit had terminated unfavorably to the prosecutor; 2d. That in bringing it, the prosecutor had acted without probable cause; 3d. That he was actuated by legal malice, i. e., by improper or sinister motives.

The above three elements must concur.

The existence of the first is undisputed.

We are bound to hold that there was entire absence of probable cause. The suit involved absolutely nothing but questions of law.

Those identical questions had been submitted to' this Court by this very prosecutor, in a case precisely analogous, and had been determined ugainst him. It was thus authoritatively advised what the law was. If it was dissatisfied with the opinion, its remedy was clear by appeal to the United States Supreme Court, and it had actually availed itself of that remedy on writ of error which was pending and undetermined when the suit was brought. It must be carefully observed that though the Butchers’ Union Company was not technically a party to the suit against the city, the questions of right between it and the Crescent City Company were as directly involved as if it had been a party. If the city had the right to regulate slaughtering within her limits and to designate places for its lawful conduct, obviously persons complying with such regulations had the right to transact the business. If she had not that right, no person could lawfully slaughter elsewhere than at the old company’s slaughter-house.

But it is claimed that the prosecutor acted under the advice of counsel learned in the law.» That is certainly true, and would ordinarily protect. But, here, the client was in possession of the opinion of this Court on the very point in its own case, involving the same subject matter. It had no need for advico of counsel. That advice was simply that the opinion of this Court was error. Counsel had (lie undoubted right to entertain such opinion and so to advise its client; the only lawful remedy under such advice consisted ii: an appeal to the United States Supreme Court. If it chose to act otherwise, on such advice, it acted at its peril and can take no protection therefrom. The only lawful action it could take under such advice had been already taken in the writ of error from the United States Supreme Court. Particularly does this apply here, when one of the counsel and the only one who testifies on the subject of advice, was himself a member and a director in the defendant company. We mention this with no intention to reflect upon the able and highly respected counsel, but simply to bring home to defendant the fullest knowledge and comprehension of the legal status of the case. Nor does the decision of the judges of the Circuit Court of the United States afford a better shield. They are not vested with authority to review or reverse the decisions of this Court. The effect of their action was, not only to overrule our opinion, hut practically to reverse our decree. For of' what avail was the right decreed by us in favor of the city, to regulate slaughtering and to designate places therefor, if persons complying with those regulations, could he enjoined by the United States. Circuit Court from conducting the business at such places ? It is obvious that the entire subject matter of the injunction suit -was embraced in, and disposed of by, our decree; and that though the Butcher’s Union Company, was not nominally a party, its rights aud those of all j>ersons to transact the business of slaughtering in this city, being subsidiary to, and springing directly from the light of the city, were-necessarily involved in and protected by our decree.

With the utmost respect for the judges of the circuit court and without, disputing their right to decide such questions according to their own views, we are bound to say that their proceedings in this suit, are not, in accord with the views often expressed by the Supreme Court of tiie United States, and carefully observed by us, touching the relations between the co-ordinate jurisdictions exercised by the Federal and State Courts.

We refer to Peck vs. Jenneso, 7 How. 612; Taylor vs. Carryl, 20 How, 595; Taylor vs. Taintor, 16 Wall. 370; New Orleans vs. Steamship Co. 20 Wall. 392; Memphis vs. Dean, 8 Wall. 64.

As evidence of the scrupulous respect which this Conit observes-towards the rightful jurisdiction of the circuit, court, we refer to State ex rel. Newman vs. Burke, 35 Ann. 185. We, make these remarks in no-other spirit than Horn the desire to promote in future the observance, (to use the. language, of the Supreme Court, of the United States in Taylor vs. Carryl) “of such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the States- and of the Union, so that they may co-opcrate as harmonious members of a judicial system eo-extensive with the United States, and submitting to the paramount authority of the. same constitution, laws and federal obligations.”

But the ground on which we rest our conclusion on the question of probable cause is, that, ear decree in the suit to which the defendant corporation was a party was, until reversed, the law to it so far as the subject-matter thereof is concerned; that the prosecution of a suit which had no foundation except, in the assumption that our decree was-not law, was without probable cause; and that neither the, advice of counsel nor the opinion of judges of a co-ordinate court that our decree was error, could furnish any cause whatever for the prosecution of such suit.

On the question of legal malice, the entire absence of probable, cause is an important factor in its solution, but the record abundantly suggests and sustains the existence of the dominant, motive which prompted the suit, viz: the desire and determination to maintain its enjoyment of a profitable monopoly and to prevent, competition therein, regardless-of questions of legal lights as expounded by the decree of this Court, and without awaiting the correction of any error which might, exist therein by the only tribunal comjietent to do so. The force of this motive is apparent from tiie enormous profits and dividends earned and declared by the company; from tiie fact that the market value of its .stock rose between ten and fourteen dollars a «bare on the issuance of tt.be injunction by the circuit court, and fell about as much when the United States Supreme Court reversed the decree; and that shortly offer'the latter decision tho company reduced its tariff of charges by about twenty live per cent.

But the motive is rendered yet more apparent by the fact that, when •the appeal from this Court was about to be reached on the docket of jfclie United States Supreme Court, the company dismissed it, thus postponing the decision until the later appeal in the injunction case could be reached.

Such a motive constitutes legal malice and completes the elements necessary to sustain the charge of malicious prosecution.

We conclude that plaintiff is entitled to recover the damages occasioned to it either by the wrongful issuance of the injunction or by the malicious prosecution of the suit.

The effort of defendant to avert liability on tho ground that plaintiff was already enjoined in other proceedings before the State courts, cannot avail, because under our decision in 33 Ann. 930, those injunctions .could have been released on bond. It was only the injunction in the. Federal court that placed it out of tho power of the plaintiff to prosecute its enterprise. Nor is any inference hostile to plaintiff’s claim to be drawn from its delay or failure to bond, because the federal suit rendered tho bounding useless.

The estoppel opposed to plaintiff’s claim as resulting from its judicial allegations in the suit against Howell et al., decided and reported In 37 Ann. 280, must be overruled. It is true that in the suit referred .to, the plaintiff did allege that part of tho damages now claimed resulted from the injunction issued in the suit of Howell vs. tho Butchers’ Union Company; but in the same suit defendant denied judicially that claim, on the ground of the pendency of its federal injunction. So that, on the question of estoppel tho parties are equal, and, inasmuch .as the defendant was the author of both injunctions, it cannot escape ■liability on such a plea.

We cannot sustain the contention of defendant that the damage to plaintiff’s property had all occurred prior to the institution of the federal suit. No doubt some injury had resulted, but the building had not then fallen, and, but for tho insurmountable obstacle opposed by ¡that suit, it might liave been saved and the disastrous sale averted.

The efforts of defendant to show that, in any event, the enterprise of plaintiff would have been abortive and that no profits would have accrued, are not sustained to our satisfaction by the evidence.

All these matters have been considered by the jury, and we are not ■disposed to disturb their verdict, which, though of considerable amount, is small in comparison with the profits derived by defendant from the illegal perpetuation of its monopoly during several years .after it had been effectively destroyed by the organic law of the State.

On the whole, we think justice has been done.

Judgment affirmed.


source: Caselaw Access Project

author: Todd, J. ' Manning, J.

license: Public Domain

text:
    No. 9328.
    The Baltimore and Ohio Telegraph Company vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    Whore plaintiff and defendant are citizens of the same State, and the interevnor a citizen of another State, the latter cannot remove the cause pending in a State court to the-Federal court, unless the controversy between him and the plaintiff can be fully determined in the absence of the defendant, from the suit.
    Where the law requires that the charter of a corporation must declare “ the time when and the manner in which payments on .stock subsciibed shall bo made,” held that, where the •charter declares that the stock shall be paid in cash at such times and such amounts and with such notices to the subscribers as the managers and directors shall deem best ffor all parties in interest.” it is a substantial compliance with the law. In an expro .priation proceeding where the land sought to be expropriated extends through moro than one judicial district, the suit must he brought in the district in which the owner luis his domicile,
    "The map or plan required to accompany the petition for expropriation, which in connection with the petition gives intelligible information respecting the locus and condition of the land sought to be. expropriated, complies with the logal requirements.
    Where a proceeding for expropriation is directed against the owner of the soil to secure a sufficiency of land for a telegraph lino, and a company intervenes and claims that the •owner has already conveyed to it (the intervening company) the entire space for tele* •graph purposes sought to be expropriated for like purposes, but alleges no special injury ito itself from the expropriation, or that the land occupied by it (the intervening company) is insufficient- for both lines of telegraph, held that no cause is shown by the intervenor,
    'Where a telegraph company seeks to secure by an expropriation a sufficiency of the right of way of a railroad to construct its line of telegraph, and another telegraph company socks to exclude the first company from such right of way of the railroad on the ground that it is entitled to the entire right of way under a contract with tho railroad company, such a claim can only he urged on tho theory that such opposing company possesses the exclusive light to the land against which the proceeding for expropriation is directed.
    A RPEAL from the Civil District Court for the Parish of Orleans. XX Rujhtor, J.

      J. R. JRccJarith for Plaintiff and Appellee:
    l. In expropriation of land for works of public utility, the owner of the land is entitled to the value of tho land actually taken, at the market value of the same area or acreage of land similarly situated in the same locality at the time the land is actually taken, without considering any enhanced value which will result from the contemplated improvement when completed.

      2. If the entire tract belonging to a laud owner is taken, the market value of tlu* land at the time of taking, irrespective of the effect of the contemplated improvement on the price, is all the land holder can recover for both land and damages.

    3. Where only a portion of an owner’s land is taken, the owner is entitled to the marked? value of the land actually taken, not- to be enhanced by the effect, of 1ho proposed improve* ment on the land taken or land in the vicinity, and such damages as the owner may suffer in addition of the actual value of 1he land taken, by reason of its expropriation. The-jury must first, ascertain the actual market value of the area of lamt actually taken, and: then pass to t-lie question whet her the portion of the land of the land holder not taken 'in depreciated in value by the oNpropriation of the part taken.
    •1. That the true method of arriving at the damages to be paid in addition to aelual value* of the land is to first ascertain the value of the entire tract at the moment of taking,, without taking into consideration any inereaso in value to fiow from the completed ini pyovemeni, and having ascertained that- value, at that time, then ascertain and determine-the market value of the poition of the land not taken ft om the land holder by expropriation at its market value, after the contemplated improvement is eomjilefed, and ihe. difference-between the market val tie of tho entire tract before expropriation and before the improvement, and the market value which the portion of the. tract not expropriated will have after-the contemplated improvement.is completed, is the true measure of the amount of damage “beyond the actual value of the laud taken,'’which should be awarded to the land, holder as damages.
    5. If the advantage which will result to the land holder from the improvement are greater than the damage which will result to him from the completed public improvement or work, the advantage must he set off against the disadvantage, and the land holder can. recover nothing for damage “beyond tho value of the land taken.”
    6. If the advantage resulting to the land holder is determined (o bo less in money value than» fair compensation to the land bolder for “damages beyond the value of the land taken,” estimated in money, tho ascertained advantages must ho offset against the ascertained, damages, and only the difference in the money estimate of damages and advantages can. bo allowed the hand holder for “damages beyond the value of the land taken.”
    7. In estimating damage “beyond the value of the land taken,” all damage in character “damnum- absque injuria,” or which the land holder suffers in common with others in the vioinifey of tho improvement?, cannot be considered or allowed.
    8. Loss of profit from new competitions in business, either caused or encouraged by the new public improvement, contemplated, cannot be considered or allowed the land holder* as damage resulting from the improvement, ' It is the duty of the law to encourage lawful competition in all lawful business and occupations.
    Ü. In expropriation proceedings, the jury or commission can only allow as damage, “beyond the value of the land taken,” such direct and immediate damage as directly affects and lessens tho value of that portion of the land not expropriated, and tends to lessen its value, as land, below the market price which the same had before the improvement existed or was contemplated.
    The preceding nine propositions aro in accord with tno following authorities; R. S sec. 701; New Orleans and Opelousas It. It. Co. vs. Lagard, 10 Ann. 158; Vicksburg and Shreveport It. It. Co. vs. Caldonvood, 15 Ann. 481; New Orleans Pacific It. R. Co. vs. Gray, Tutor, 31 Ann. 431; Railroad Co. vs. Dillard, 35 Ann. 1005; Railroad Co. vs. Francis, 70-111. 238; Snyder vs. Railroad Co., 25 Wys. 60; Railroad Co. vs. Capps, 07 111. 607; Pierce on Railroads, 213 ;• Schuylkill Navigation Co. vs. Farr, 4 Watts & S. 362*, Rover on Railroads, 373, 383; Sutherland on Damages, 442; Troy and Boston R. It, Co. vs. Turnpike Co., 16 Boh. 100; Railroad Co. vs. Old Colony R. R. Co., 12 Cush (Mass); Racket vs. Metropolitan It. R., 2d English and Irish Repeals (Law Reports) 175; Mills on Eminent Domain, par. 159, p. 194,

      10. Section 698 R. S., m so far as it reíate*» to the plan to be filed with the petition in expropriation proceedings, is directory, not mandatory. Remy vs. Municipality, No. 2, 12 Aim. 500,
    .11. The petitioner having filed a plan with his petition, his plan is simply in aid of the description of the land sought, to be condemned. Tf the defendant assorts the plan tobe incorrect, lie should plead that both the plan and description in the petition are incorrect-, and establish the correctness by affirmative proof. R S. sec. 698.
    12. If the description of t he promises contained in the petition and plan described the property with sufficient- ceifainty to malte a good conveyance in a deed of conveyance, the statute is complied with. If the description is too faulty to designate the property sought, to he expropriated, the owner should raise the issue when an ent-ry is sought to he made after an expropriation. R. S. secs. 698. Ci)9, TOO.
    13. The Statutes of Louisiana, relating to expropriation for works of public utility, relate only to the expropriation of private property and not property public in destination and character. 11. S. secs. 696. 698. TOO. Act No. 124, Acts of 1880: The Constitution of 1879, arts. 244, 231.
    ¡14. Under the provisions of the Constitution of 1879. and Act 124 of Acts of 1880, a corporation organized under the laws of Louisiana for the transmission of intelligence by telegraph or telephone for hire, has the right of entry on the unoccupied right of way of any railroad company in the State, subject to the conditions and restrictions of said Act 124, without- resorting to expropriation, because the railroad is a public highway, as contemplated in Act 124 of 1880. Article 244 o'f the Constitution, there being no private property in the road. Railroad Co. vs. Casey. 26 Pa. St. 307; Trumick vs. Smith, 36 Pa. St. 18; notes to Dovnston vs. Payne.
    Second, Smith's Leading cases: Peck vs. Smith. 1 Conn. 103,132 ¡ Northern Central R. R. Co. vs. Commonwealth, 9 \V. X. C. 130; New Orleans vs. Chattanooga R. R. Co., 27 Ann. —: Norwich Gaslight Co. vs Norwich City Gas Oo., 25 Conn. 19; Nicholson vs. Rail-Toad Co.. 22 Conn. 14; Dillon on Mun. Oorp., par. 695, 3d ed; Logan & Son vs. Payne, 43 Iowa. 524 : Chicago vs. Rumpf, 45 111. 90 ; State vs. Cincinnati Gaslight and Coke Co., 18 Ohio. St 290, ot seq : Messenger vs. Pennsylvania R. R. Co., 7 Vroom, 413; Marriott vs. London and Southwestern R. R. Co.. 81 Eng. C. L. 498: Sauford vs. Railroad Co., 24 Pa. St. 378: Andendried vs. Railroad Co., 68 Pa. St. 379 ; Western Union Telegraph Co. vs. American Union Telegraph Co., 65 Ga. 160, 38 Am, Rep; Rechinan vs. Saratoga R. R. Co.. 22 Am. Dec. 679,
    13. Article 364 C. P.. and other provisions of the Code of Practice relating to the intervention of third poisons, apply only to the ordinary actions authorized by the Code of Practice, and do not relate to or authorize intervention by third parties in special proceedings for expiopiiation of lands for works of public utility. The. statutes relating to expropriation do not authorize or permit the intervention of third parties. O. P. art. 365.
    46. A contract or convention between a railroad company and a telegraph company by which the two colorations sought to vest a telegraph company with an exclusive Tight to erect telegraph lines on the railroad right of way in the State of Louisiana and throw obstacles in the way of competition, is ultra ri-nm the power of each of the corporations and void as contra bonus- worn and contrary to public policy, and an illegal effort to place the control of a public highway beyond the reach of the State. Audendried vs. Philadelphia and Reading R. R. Co., 68 Pa. St. 379 ;■ Western Union Telegiaph Co. vs. American Union Telegraph Co , 65 Ga. 160, 38 Am. Rep: Messenger vs. Pennsylvania R. R. Co.. 1 Vroom, 413; Harriot vs. London and Southwestern R. R. Co.. 87 Eng. O. L. 198; Sanford vs. Railroad Co.. 24 Pa. St. 378; Southern and Atlantic Telegraph Co. vs. New Orleans, Mobile and Texas R. R. Co., 53 Ala. 211: Western Union Telegraph Co. 'vs. Pensacola Telegiaph Oo., 96 U. S. 1; Thomas vs. West Jersey R. R. Co., 9 W. N. O. 71; Railroad Co. vs. Davis, 43 N. Y. 137; Railroad Co. vs. Seeley, 45 Mo. 212; Redfield on Railroads, Yol. I, p. 234, note!, 5th ed; Addison on Contraéis, par. 270-274; Lake-on Contracts, 734; Addison on Contracts, par. 273; Atlantic and Pacific Telegraph Co.. vs. Union Pacific R. R. Co., 1 McCreary, 541; "Western Union Telegraph Co. vs. Wabash. R. R. Co., 9 Biss. 72; Western Union Telegraph Co. vs. Burlington and .Southwestern R. R. Co., 3 McCreary, 131; Thomas vs. West R. R. Co., 10L U. S. 71: American Union Telegraph Co. vs. Pacific R. R. Co., 1 McCreary, 188; Oregon, etc., vs. Winsor, 20 Wall. 66; Acts of New York, approved April li, 1848, sec. 4, N. Y, Stal. at Large, Yol, III.. 720, 2d ed; Railroad Co. vs. Davis, 43 N. Y. 137.
    17. Neither the railroad company nor the Western Union Telegraph Company can object ihat Act 124 of J880 is inoperative as to them, because passed subsequent to their pretended contract. 1st Rediield on Railroads, 5th ed, 651; Wynn vs. Railroad Co., 5-Excli. 420: Stevens vs. Railroad Co., 13 Beav. 48; Atkinson vs, Ritchie, 10 East. 330 Pollock on Contracts, Eng. ed 340; Bailey vs. DeCrespigny, L. R. 4, Q. B. 180; Gaslight Co. vs. Middleton, 39 N. Y. 228; Brewster vs. Kitchen, ¡ Salk. 198; Western Union? Telegraph Co. vs. Atlantic and Pacific Telegiaph Co., 5 Neh. 103; Pensacola Telegraph Co. vs. Western Union Telegraph Co., 96 U. S. 1; Western Union Telegraph Co. vs. American Union Telegraph Co.. 19 Am. Law Reg. 173.
    18. The jury impaneled in expropriation proceedings under tiio laws of the State, is a special commission composed of twelve commissioners requii ed to possess peculiar qualifications and fitness, called into existence with special care to fitness, subject to challengelor cause in not possessing the statutory qualifications, and the court will not disturb the estimate of value of the property in damages made by the jury, except for reasons extraordinary in character, showing an erroneons application of the rule of damages. Railroad vs. Hart, 15 Ann. 507; 35 Ann. 1045.
    19. The court should construe the laws for the encouragemont ol‘ works of public utility with that liberal spirit; necessary to make them effective to the end contemplated, and? ought not to give sanction to or encourage unconscionable devices and obstructions thrown in the way of the enforcement of the statutes when inspired by the greed of rival corporations, acting through the possessor of the land sought to be expropriated, under compulsion of dishonest and fraudulent stipulations of contracts seeking to throttle competition and give a monopoly.

      .Leovy é Leovy mid J. P. Blair for Defendant and Appellant:
    1. Section 683 of the Revised Statutes requires that the charter of a corporation shall contain a statement of the amount of capital stock, the number of shares, the amount of each share, the time when and the manner in which payment in stock subscribed shall be made. A proviso in a charter that payment shall be made f*at such times and in suoli? amounts and with sue!) notices to the subscribers as the manager and directors of said corporation, or a majority thereof, shall deem for the best, of all parties in interest,5' is not a compliance with the statute. The charter does not fix time or manner, but relegates this duty to 1 he officers of the company, and the public is unprovided with the information which it was the object of the charter to give.
    2. A jury of freeholders, impaneled in the parish of Orleans, cannot, in an expropriation case, assess the value of lands and improvements in a distant parish. The Act of 1880-(p. 170) requires the suit for such purpose to he instituted before, the judge of ihe district court, where the land is situated, or if the land extends into hvo districts, in either of the ho,o. And Section 700 of the Revised Statutes (which is not amended by the Act of 1880) requires “that the case shall be tried before a jury of freeholders, remdentu of the j>arUh in which the land lies.”
    3. The Constitution provides that, vested rights shall not be divested, unless for purposes' of public utility and for adequate, compensation;” and the Revised Statutes (Sec. 700) and the Act of 1880 (p. 171) provide that in case of expropriation, the owner of the proporty expropriated shall be paid the land “with Its unprormu-.nti,” and such “damages”besides as the owner may sustain. Under these provisions of the law, the owner of the land expropriated for telegraph or railroad purposes is entitled to payment of the value of the property as improved and fitted by him for such purposes. Mills on Eminent Domain, sec. 113; Rorer on Railroads, p. 833 j 33 Ann. 1043; 1 Redñeld on Railroads, sees. 71, 74: Louisiana Cons., Arts. 155, 15(3: 98 U. S. S. C. 453.

      liuync (l- Denigre and (if. V. Glark for Intervenor.
   The opinion of the Court was delivered by

Todd, J.

This is a proceeding- instituted by the plaintiff corporal ion to expropriate land occupied by the defendant railroad company, as its right of way for the purpose of establishing aud constructing its line of telegraph from the city of New Orleans to Lafayette.

The Western Union Telegraph Company intervened in the suit, claiming a right to the use of this roadway aud possession of the same for its own telegraph purposes, under a contract with the railroad company defendant, and praying for damages against the plaintiff company, should it succeed in obtaining the expropriation asked for in this suit.

From a judgment in favor of the plaintiff and against the defendant and intervenor, the two latter have apipealed.

1st. We will first direct our attention to the motion to remove the cause to the Federal Courts made by the Western Union Telegraph Company, so soon as its intervention was filed and allowed.

This company (the intervenor) was chartered by the State of New York, where it has its domicile. The plaintiff aud defendant companies are domiciliated in this Slate.

This application for removal was made under the alleged authority of the second section of the Act of Congress of the 3d of March, 1875,. conferring upon the Federal Courts jurisdiction in certain eases therein enumerated.

An analysis of this section shows, that it consists of two clauses,, and that by the first clause removal is allowed only in the following; eases:

1st. The amount in dispute must exceed $500, and must arise under the Constitution and laws of the United States or treaties made or which shall be made under their authority.

2d. Or a suit at which the United States shall be plaintiff.

3d. Or one between citizens of the same State, claiming lands under grants of different States.

4th. Or a suit between citizens of a State and foreign States, or the citizens or subjects of foreign States.

fit'll. Or a suit iu which there shall be a controversy between citizens of different. States.

It is evident, that the removal in the instant case could not be allowed unless under the provision last cited, bat the second clause of this section prescribes not only that the controversy must be wholly between citizens of different States, but must be one which can be fully determined between them without the presence of the other parties to the record.

Now, this proceeding was resorted to by the plaintiff for one specific purpose: that is to have condemned for its use enough of the right of way of tiie railroad company, for the erection and maintenance of a line of telegraph from the points designated.

Both plaintiff and defendant are citizens of Louisiana. The intervenor, a citizen of New York, asserts a similar right on the property of the company to that asked by the plaintiff, as already obtained by contract, and a right conflicting with and excluding the claim made by the plaintiff.

It is difficult to see how the claim of the plaintiff against the railroad .company and the right of the iutervenor apon the property of the same company, and the respective and conflicting claims of the plaintiff and iutervenor could be determined in the absence of the railroad company, whose property forms the very corpus or subject matter of the controversy.

There is, however, one feature of the case presented by the record that places this matter beyond doubt.

The iutervenor, (Western Union Telegraph (Jo.,) though asserting an exclusive light, iu itself over the road-bed for telegraph purposes, does not pray for a decree recognizing such right in its favor, and rejecting by reason thereof the adverse claim of the plaintiff, but merely asks that, in the event the plaintiff company obtains a decree ordering the expropriation sued for, then and in such ease the intervening company recover of the plaintiff company tiie value of the land expropriated. That is, the only relief asked for by the Western Union Telegraph Company is predicated and contingent upon the judgment that may be rendered in favor of the Baltimore and Ohio Telegraph Company (plaintiff) against tiie railroad company, defendant, which judgment can only bo rendered, if rendered at all, in the State Court, since the controversy as between tiie latter two companies—citizens of the same State -is one confessedly 11011-removable.

We are therefore clearly of opinion that the motion to remand was properly overruled. See Hyde vs. Ruble, 104 U. S. 407; Corbin vs. Van Brant, 105 U. S. 570; Fraser vs. Johnson, 106 U. S. 191; Memphis and Charleston R. R. Co. vs. Alabama, 107 U. S. 581.

II.

A number of exceptions were filed by the defendant to the plaintiff’s proceeding; among them we find:

1. One denying or questioning the validity of the charter of the plaintiff Baltimore and Ohio Telegraph Company (plaintiff) on the ground that a law of the State (Sec. 685, R. S.) required that the charter of a corporation must-declare among other things “the time when and the manner in which payment on stock subscribed shall be made;” ■ anxl that the charter, in this instance, only prescribes that the capital stock “shall be paid in cash, at such times and in such amounts, and with such notices to the subscribers, as the managers and directors of said corporation, or a majority thereof, shall deem for the best of all parties in in terest.”

We think this clause in the charter is a substantial compliance with the iaw.

The subscription fixed the amount of the stock subscribed, and the liability therefor. The stock is to lie 'paid for by the terms of the charter in installments, as ordered by the managers and directors, and in cash after ten days’ notice. This seems sufficiently definite and certain; and in this opinión we are confirmed by the legislative construction given this clause of the statute by a number of charters granted from time to time to various corporations by the legislature. Among others we find that the charter to the company defendant in this case, and which sets up this plea—the Morgan’s Louisiana and Texas Railroad Company—contains almost the identical words on this point that the charter of the plaintiff company-'-the language being as follows:

“The time and manner of payment for stock shall be such as may be determined by the board of directors.” Sec. 10, Act 87 of 1877.

Tite same language may he found in Act 97 of 1877, incorporating the Barataría Shi]) Canal Company, Sec. 4 ; and also in the charter of the New Orleans and Jackson R. R. Go., Act 1858, p. 109, and in that of the Mississippi and Lafourche R. R. Co., Act 108 of 1855, and in several other legislative charters unnecessary to enumerate.

2. Another exception was to the effect that “the map or plan filed together with the petition was not snch a plan of the right of way as the law required.”

We have attentively examined both the petition and the map annexed thereto, and when we consider that the purpose of the proceediug was to obtain an expropriation of land along the line of a railroad long established and well known and defined, sufficient to erect telegraph poles, and further consider that the reason of this requirement was simply to give intelligible information as to the situation or locus of the land wanted and its condition, it is too clear for argument that the description in the petition and delineations in the accompanying map fulfilled completely all legal requirements. There was no possibility of mistake as to what was sought by the suit.

3. Another exception to the plaintiff’s suit was:

That the jury impanneled to value the property sought to be expropriated, is from the parish of Orleans and is called upon to value property situated out of said parish.

Section 098 of the Revised Statutes prescribes that in cases of expropriation,, the party seeking the appropriation must apply to the judge of the district in which the land may be situated, or if it extends into two districts, to the judge of the district in which the owner resides.

The owner of the Morgan Railroad is the defendant corporation, having its domicile in the parish of Orleans. The land sought to be expropriated extended into two or more districts. The charter of the company moreover provides that it must be sued in the parish of Orleans, that is at its domicile. Therefore the institution of the proceeding in question before the Civil District Court for the parish of Orleans was compulsory, since no other court, under the law referíed to, liad jurisdiction of the matter.

This law further provides that the judge shall indorse on the petition presented an order directing the clerk to give notice to the owner of' the land sought to be expropriated, and that immediately after this order shall have been made by the judge, the clerk and sheriff shall make a list of forty-eight free holders, residents of the parish where the land lies, out of which number shall be drawn the jury to determine the value of the land.

Now it is evident if the court of the domicile of the owner has sole and exclusive jurisdiction of the suit, the officers of that court, the clerk and sheriff, could not go outside of that jurisdiction to select a list of jurors to sit. in the case: they, of course, must be confined in their selection to jurors resident of the parish where the suit was-brought.

The judge himself would be powerless to direct the drawing or selection of jurors in other parishes beyond his jurisdiction. Therefore to give any effect to the law providing for a proceeding of this kind, it-was absolutely necessary that the jury shouldbe drawn from the parish or parishes within the jurisdiction of the court before which the suit was pending. If any attempt had been made to institute separate-proceedings in each of the parishes over which the land extended, it is evident that such attempt would or could have been defeated by a plea to the jurisdiction, since no other court, in such case, could entertain the application under the positive provisions of the law save the court of the domicile of the owner, which, in this instance, was the Civil District Court of the parish of Orleans, and in which parish, it is-conceded, that the land in part was situated. This conclusion is irresistible when we consider the several sections of the statute, guided by that rule of construction which seeks to harmonize the apparently conflicting parts in order to render it effective as a whole.

There were other exceptions made, which are not seriously pressed before this Court and which, in our opinion, are without force. The-exceptions were all properly overruled.

III.

The only remaining contention on the part of the defendant is, that the compensation allowed for the land expropriated was wholly inadequate. We have carefully weighed the testimony on this point, which to some extent is conflicting, but when we consider the small quantity of land required for the erection of the poles and the construction of' the telegraph line, and the use of which cannot possibly interfere with or obstruct in the least the right of way of the railroad company or impair in any manner the operation of its line, we are not disposed to disturb the estimate of the jury, which was fixed by their verdict at two thousand one hundred dollars.

IV.

T n k Inte it v ent ion.

As before stated, the object of the intervention of the Western Union-Telegraph Company was (o recover from the iilaintiff company a sum equal to the amount that might he assessed by the jury as the value of" the land expropriated in the event of a judgment decreeing the expropriation. This demand was founded on a contract between the inter - venor and the Morgan Railroad Company, in which the exclusive use for telegraph purposes was granted by said company.

This contract was offered in evidence both by tlie Western Union and the Morgan Company. By the first not for the purpose, as stated in the bill.of exceptions, “of establishing any exclusive use of the right of way for its lino of telegraph,” “which would interfere with the State’s right of eminent domain,” “but for the purpose of showing the usufruct and base of said right of way granted to the intervenor,” and by the defendant company it was offered with a view of showing the value of the land sought to be expropriated by the plaiutiff.

The court properly sustained the objection of the plaintiff’s counsel to the admission of the contract for the purpose for which it was •offered by the defendant, since plaintiff was no party to that contract and the consideration given by the Western Union, purporting to bo for the exclusive use of the entire right of way for its line, was no criterion of the value of the modicum of the land sought to be obtained by the plaintiff for its purposes.

The court, however, erred we think in rejecting the contract on the ■objections made when offered in evidence, by the intervenor.

The main objection was, that the grant of the exclusive use of the right of way for telegraph purpose to the intervenor, was contrary to law and public policy, and rendered the contract void. This plainly went to the effect of the contract or the evidence, and so in fact did ■ every other objection made and noted in the bill.

We find the. contract in tlie record and shall ti oat it as properly before us.

It is plain that the claim of the intervenor to recover of the plaintiff' whatever sum the jury might ñx upon as the value of the land expropriated for the use of the Baltimore and Ohio Telegraph Company, can rest alone on the theory of an exclusive grant to the intervening company under its contract with the Morgan’s Railroad Company. In the petition of intervention there is no special damage alleged as resulting from the expropriation or the use of the land to he expropriated by the plaintiff.

It is not charged that such use by the plaintiff will interfere with or -obstruct the operation of the intervenor’s line, or that the right of way of the railroad company is not sufficient for the working of both lines •of telegraph; and leaving out the question of the exclusive, grant to the Western Union Company—which the contract, with the railroad ■company plainly purports to convey—it would seem clear that the petition of intervention on the very face of it sets forth no cause, of action.

Inasmuch, therefore, as the intervenor asks for no judgment against, the plaintiff decreeing or recognizing its exclusive use for telegraph purposes of this right of way of the roilroad, but, on the contrary, -expressly declines in the petition to press such a claim and disclaims .any purpose or intention to assert any such exclusive right under the contract, and moreover, as we are fully satisfied that no damage could result to the intervening company by the mere construction of plaintiff’s line of telegraph,—we think, therefore, for these reasons alone, we are justified in rejecting the intervention, without discussing and determining the effect of this exclusive grant contained in the contract and deciding whether it was legal or illegal, valid or void, a point upon which a lengthy argument has been submitted to ns by the plaintiff’s counsel.

Nevertheless the question naturally suggests itself as to which company—the railroad company or the Western -Union Telegraph Company—should receive the sum awarded by the jury as the value of the-expropriations, and which sum was paid into court by the plaintiff. This question, however, we cannot now determine, since there is no issue raised in the pleadings between these two last named companies, touching their respective, claims thereto. We have only decided that the plaintiff was legally entitled to the expropriation, and mast pay, therefore, the. sum fixed by the verdict of the jury. The rights of the intervening and defendant companies not being put at issue, nor passed upon with respect to this fund are of course reserved.

Judgment affirmed.

On Api’rkjation for Rehearing.

' Manning, J.

The application for rehearing complains of the insufficiency of the sum allowed as damages, and the reservation of theintorvenor’s right to a part of that sum.

We, are not disposed to alter the sum assessed by the jury, and our remarks in tin- concluding paragraph of the Opinion were not intended ¡is a suggestion to the intervenor to instituto a new suit, nor to deprive the defendant of receiving the money adjudged to be due it under the-terms of the judgment. We simply meant to say that if the, intervenor has a. just claim to any part of the money awarded as damages, it is not concluded from advancing and pressing such claim against the defendant, but- the judgment of the, lower court was in favor of the defendant against; the, plaintiff for the damages and wo affirmed it, and therefore the defendant- has a present right to that sum according to-the terms expressed in the judgment.

Rehearing Refused.


author: Mannikc, J. Fennek, J.

text:
    No. 9446.
    The State ex rel. Board of Health vs. City of New Orleans et als.
    The charter of New Orleans empowers her Council to Ax the compensation of every officer of her own or of the State whoso salarios are to be paid by herself, and to prescribe the number of such officers.
    'The exercise by the Board of Health of the power to appoint sanitary inspectors and police’ men at salaries larger than the appropriation made by the City Council will warrant, and to require the City to pay them, is inconsistent with and in derogation of the City’s right to iix the compensation of all officers that are to bo paid by her.
    Discretion is lodged in the Council as to the amount of the appropriation to be annually made for the Board of Health and the Board has no control over it. 11 can expend that and no more.
    APPEAL from the Civil District Court for the. Parish of Orleans. Lazarus, J.

      M. J. Cunningham, Attorney General, and V. O. Zacliarie for the Relators, Appellants.

      W. 11. Rogers, City Attorney, and 1>ranch K. Miller, Assistant City Attorney, for Respondents, Appellees.
   The. opinion of the Court was delivered by

Mannikc, J.

This is an application by the Hoard of Health of the State for a mandamus against the City and its officers to cany on its police, roll six sanitary policemon employed by the relator and to pay their salaries out of the general appropriation for police in the City budget.

The budget for 1884 contains an appropriation of six thousand dollars for the Board of Health. An Act of 1870 authorizes the Board to appoint sanitary inspectors and the salaries of these inspectors have consumed this appropriation. The same Act confers upon the Board the control of the sanitary police, Acts 1870 ex. sess. p. 55, and it is to compel the City to pay the salaries of these latter in addition to those of the inspectors that this mandamus is invoked.

The City charter empowers her council to iix the compensation of every officer of her own or of the State whose salaries are to be paid by herself and to proscribe the number of them. Acts 1882, p. 81. When she appropriated six thousand dollars to the Board of Health for all purposes it was tantamount to fixing the salaries of these servants of the Board at that sum, leaving to the Board to apportion it among them. It might well have been supposed that the Board was the best judge of the nature and extent of the duties of these servants and could best apportion to each or to each class the compensation that each ought to receive, the Council contenting itself with fixing the sum in bulk and leaving its distribution to the Board.

The. exercise by the Board of the power to appoint sanitary inspectors and policemen at the minimum salaries, and to require the City to pay them regardless of a fixed appropriation made by herself and outside of it, is inconsistent with her right to fix the compensation of all officers who are to bo paid by her and is in palpable derogation of that right.

The relators rely on the Act of 1877 but that Act, in empowering the Board to protect the health of the City, restricted its authority to incur expense to the assent and concurrence of the Council, and made it the duty of the Board to report to the Council annually an estimate of the probable sum required to meet its expenses, and then obliged the Council after considering that report to make such appropriation ashy it may he dee ned necessary. Acts 1877, p. 118. Discretion was lodged in the Council as to the sum and the Board had no coutrol over it. Tt could not be otherwise, for in no other way could the Council protect its revenues.

The lower court refused to make the mandamus peremptory and dismissed the. relator with costs.

Judgment affirmed.

Rehearing refused.

Dissenting Opinion.

Fennek, J.

Without entering into questions as to the power of the City Council to limit and fix the appropriation for expenses of the Board of Health, including the compensation of sanitary inspectors and expense of sanitary police, I am clearly of opinion that the appro priation on the budget for 1884 was actually made for expenses other than that of the police, and, having been so made, the council had no power, by subsequent resolution, to divert the amount so budgeted to the payment of the sanitary police, which the law required the. city to furnish and which had always been detailed from the police force and paid from the police appropriation.

For these reasons I dissent from the decree herein.


author: Fenner, J.

text:
    No. 9521.
    The State of Louisiana vs. Robert Jackson.
    Evidence of violent and dangerous character of deceased, in a murder case, is inadmissible unless supported by the foundation of proof of assault or hostile demonstration at the time of the killing.
    Where the,'judge states as his reason for excluding such evidence that the proof did not establish such foundation, we cannot reverse his ruling.
    APPEAL from the Eighth District Court, Parish of Madison. Déloney. J. .

      Jon. Si. JRansdeU, District Attorney, for the State, Appellee.

      J. J}. tftone for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The only error claimed appears on a bill of exception taken to the ruling of the court excluding-evidence as to the dangerous character of the deceased. The bill contains averments going to show a hostile demonstration or assault by the deceased, which might have supported the introduction of the evidence; but the State objected “on the ground that no assault had been established and that two witnesses for the State had previously sworn that deceased was walking quietly along, no pistol being drawn or demonstration made, and that defendant’s witness did not state accused went towards him drawing a pistol.”

The judge having before him the two statements of accused and of counsel for the State, gives as his reason for excluding the evidence, “that, an assault was not sufficiently shown.”

It is elementary that evidence of dangerous character of the deceased is inadmissible, unless the foundation has been laid by proof of some assault or hostile demonstration on the immediate occasion of the killing. State vs. Jackson, 33 Ann. 1087; State vs. Claude, 35 Ann. 71.

The judge must determine whether such foundation has been laid, and when liis statement shows that the proof did not sustain it, we are bound to accept it. State vs. Ford, 37 Ann. 443 ; State vs. Janvier, 37 Ann., not yet published.

Under this view we cannot, reverse the ruling.

Judgment affirmed.


author: Manning, J.

text:
    No. 9520.
    The State of Louisiana vs. Spencer Jackson.
    An aocusod. cannot accept a juryman when be has good cause of challenge, take the chances of a verdict in his favour, and when disappointed present the objection in a motion of arrest ot judgment. Much more is he forbidden to make the objection after convict5 on when, having been informed of it in open court by the juryman himself, he consents that the latter shall sit. The disqualification being such that the prisoner could waive it.
    A PPEAL from the Sixteenth District. Court Parish of East Feliciana. A.JL Kernan, J.

      M. J. Cmminghmi, Attorney G-eneneral, for the State, Appellee.

      Kilbowme & Wedge, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

From a conviction of perjury and i-entence thereon to five years’ hard labour the defendant appeals and relies for reversal upon a motion in arrest of judgment based on two grounds ;—

1. “That the jury was biased and prejudiced, one of its members having been on the graud jury that prior to the filing of the information had investigated the case, which defect cannot be waived.”

After the jury had been sworn and empanelled, one of them informed the court that he was on the grand jury that found an indictment against the defendant charging him with perjury in this same matter but had no recollection of the circumstances. Thereupon the district-attorney and the counsel for the defendant consented that he should remain on the petit jury and the trial proceeded.

The juryman must have been mistaken about the grand jury finding an indictment as the proceeding before us is an information, unless an indictment was found and withdrawn and this information was after-wards filed. However that may be, it is settled that such objection must have been made when the juryman was offered. An accused cannot accept a juryman when he has good cause of challenge, take the chances of a verdict in his favour, and when disappointed take shelter under the objection that he has refused to avajl himself of. State v. Alvarez, 7 Ann. 284 ; State v. Jackson, 25 Ann. 537; State v. Harris, 30 Ann. 90.

Much more is he forbidden to make the objection after conviction when, having been informed of it in open court by the juryman himself, he consents that the latter shall sit. The disqualification was not such that the prisoner could not waive it.

2. “ That the information is defective in not stating the time place and circumstances of the perjury.”

This is not well founded. The information sets out the circumstances with minuteness and expressly states the time and place when and where the perjury was committed.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9506.
    The State ex rel. James David vs. The Judges of The Court of Appeals of the Fifth Circuit.
    It is only where the legality of a tax is at issue, that is, where a tax is charged as being unauthorized by law, or being authorized, that the law itself is unconstitutional, that the Supreme Court has exclusive appellate jurisdiction.
    From the fact that an assessment is erroneous and that a sale of the property assessed is a nullity for some error, it does not follow that the tax, to pay which the sale was made, is in itself illegal. An issue on those questions does not involve the legality of the tax.
    A circuit court has appellate jurisdiction over such a cause which does not come within that of this Court, where the matter in dispute does not exceed two thousand dollars.
    In such a case, a prohibition does not lie to the circuit court.
    ^PPLICATION for Prohibition.

      JR. MoCulloh and Pugh <& Poise for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition to arrest the execution of a judgment of the c'rcuit court. It is based on the ground of absence of jurisdictionraíionae materice. The prayer is also that .an order be made for the transmission to this Court of the proceedings below, that their validity may be ascertained.

It is urged by the relator that the matter at issue in the controversy is the legality of a tax, and that the determination of such a question appertains exclusively to this Court.

From the averments it appears that the suit referred to is one in which the plaintiff claims the ownership of certain real estate.

Averring apprehensions of disturbance and molestation by a party pretending to have acquired the same from the State, to whom it had been adjudicated at a tax sale, which is charged with nullity, in consequence of illegal assessments,—the plaintiff obtained an injunction to quiet him in his possession and enjoyment.

After issue joined, tlie district court perpetuated the injunction.

On appeal the circuit court reversed that judgment and remanded the cause.

A first petition for a rehearing having been refused, the appellee moved for another, on the new ground of want of jurisdiction, the matter involved being- the legality of the tax, over which the Supreme Court alone has jurisdiction.

The circuit court overruled the second application and maintained its jurisdiction.

TJie case presented involved merely the validity of an adjudication to the State of property offered for sale for non-payment of taxes, and that of a sale of the property by the State to the defendant in injunction.

There is not the slightest reference to the tax for the payment of which the property was seized, and still less is any averment made that it is illegal or unconstitutional.

The contention was that, as the property had been illegally assessed, the adjudication to the State and the sale by her are nullities; that the plaintiff was never expropriated and that he must be quieted in his possession and enjoyment.

The complaint made in the second application for a rehearing.and in the petition for relief in this court, is that the tax to pay which the property was seized is. illegal only because the property was improperly assessed.

There never was an issue between the State or the parish and the relator as to the legality or illegality of the tax, and it is only in such cases that an appeal lies to this Court regardless of amount.

It may be that the assessment was illegal and that consequently the adjudication and the sale attacked are nullities; but that circumstance does not justify the conclusion that thetax is illegal and unconstitutional, so as to give to this Court jurisdiction over the injunction suit which involves, after all, only a question of title.

A tax is deemed illegal only where there is no law to authorize the levying of it, or, where there being such law, that law is unconstitutional and so void. An erroneous assessment does not make a tax illegal. A tax may be legal or constitutional, though the assessment be defective'. 32 Ann. 817; 33 Ann. 286; 36 .Ann. 286,364,801; 37 Ann. 507.

It is in such cases only that this Court has exclusive appellate juris, diction, regardless of amount.

As in Block vs. Fontenot, 35 Ann. 965, it may well in the present controversy be observed that the “ pleadings in the injunction suit do not present the question of the legality or constitutionality of any tax, under the assessment complained of. That branch of our jurisdiction has therefore no application to this case, and our jurisdiction must in consequence be tested by the amount in dispute.” See also 1L Ann. 743; 2 Ann. 538; 4 Ann. 13; 5 Aun. 880; 3 Ann. 693; 9 Ann. 645, 305, 350; 10 Ann. 724.

It does not appear that the property in question exceeds in value $2000.

The circuit court properly maintained its jurisdiction, and no prohibition can issue to prevent the execution of its judgment.

Application refused.

Rehearing refused.


text:
    No. 9334.
    D. M. Giddens, Executor vs. Madison Mobley et als.—John Chaffe & Sons Intervenors.
    All persona who have an interest in acquiring an estate by prescription have a right to make the plea, even though they from whom they derive title should renounce it.
    One not apar.y to a suit as defendant, whose interest is threatened or attacked by a plaintiff, may intervene and plead prescription.
    If a defendant, who has pleaded prescription in the court below, withdraws his plea in the Supreme Court and prays an affirmance of the judgment which was against liim, and an intervenor who has acquired that defendant’s rights has pleaded or then pleads prescription, his plea will be maintained if it appear that the defendant’s plea would have been maintained.
    PPEAL from the Fourth District Court Parish of Red River. Logcm, J.

      M. 8. Jones and J. B. Boaoh, and Kemiard, Howe & Prentiss for Plaintiff and Appellant.

      L. B. Watkins, 8. A. Hull and J. F. Pierson for Defendants and Appellees.
   On Rehearing as to some of the Defendants and the Intervenors.

The opinion of the Court was delivered by

Manning, J.

The facts of this case are stated in our opinion on the first hearing. Giddens v. Mobley, 37 Ann. 417. For reasons given on the application for rehearing we adhered to our original opinion as to all the defendants except those therein mentioned and granted the rehearing as to them. We granted it to the intervenors of our own motion and for their protection. There remains for examination these matters alone.

Larkin Edwards had not answered nor pleaded prescription. That part of the land which was claimed by him is embraced in the Rees part of the tract. While Rees was owner of it he mortgaged it to P. S. Wiltss in May 1879 and this is the mortgage acquired by John Chaffe & Sons. Larkin Edwards bought his part after tnat mortgage had been placed on it and of course burdened by it. The mortgage contained the fact do non alienando. When the Chaffes foreclosed and bought the whole land covered by their mortgage, they acquired Larkin Edwards’ part, and they have pleaded the prescription of ten years. They can plead it. All persons who have an interest in acquiring an estate by prescription have a right to make the plea even though they from whom they derive title should renounce it. art. 3466 Rev. Civ. Code. Blanchard v. Decuir, 8 Ann. 504. And an intcrvenor whose interest is to defeat the plaintiff’s claim may plead it as well as a defendant. Canal Bank v. Beard, 16 Ann. 345. And as we have maintained that plea as to other defendants, the maintenance of it now for the intervenors assures to them the land embraced in their title.

B. F. Jones’ succession did answer and pleaded prescription, but the plaintiffs insisted that the lands claimed by that succession are not all included in the tax-deed. Then our decree will not affect those outside of it. The plaintiff’s suit had for its object the annulment of a tax-sale, and could therefore have no relation to lands not sold for taxes nor claimed in their petition, and our decree could go no further than the demand.

Madison Mobley and T. H. Hamilton were two of the purchasers ¡it the tax-sale and pleaded prescription in the lower court, but in this court they withdrew their plea and prayed the affirmance of the judgment below. They had sold their lands and had been paid, but the lands thus sold by them came into Rees’ possession and were a part of those mortgaged by him and ultimately bought by the intervenors, whose plea of prescription protects them and prevents the success of that arrangement whereby these two defendants were to pocket their gains to the detriment of the intervenors.

Mrs. Lisso was not represented by Messieurs Watkins and Hull but by J. P. Pierson Esq. who pleaded prescription for her, and as this plea was sustained by us she is protected by it. Therefore

It is ordered and decreed that onr first decree reversing the judgment of the lower court and giving judgment in favor of these defendants sustaining their plea of prescription and quieting them in possession and ownership of the land and against the plaintiff for their costs in both courts is adhered to and maintained. And it is further ordered and decreed that our first judgment dismissing the interventions at the cost of the intervenors is avoided and set aside, and that said intervenors now have judgment against the plaintiff sustaining their plea of prescription of ten years and quieting them in the possession and ownership of the land described in their deed, and for their costs in both courts.


author: Todd, J.

text:
    No. 9517.
    C. V. Thibaut, Sheriff, and ex officio Tax Collector, vs. Joseph Dymond.

      A sugar planter wko keeps a store on bis plantation must pay a license as retail dealer, where, though the bulk of the sales are made to employees on the plantation, yet other persons are not forbidden to purchase from the store.
    Nor is there any legal authority for graduating such license by the amount of sales made to the public, i. e. to persons not employed on the plantation.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. IAvaudais, J.

      liobt. Single and Jas. Willcinson for Plaintiff and Ajipellee.

      S. S. MeOaleb for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is a proceeding by rule, instituted by the sheriff and tax collector of the parish of Plaquemines to recover the amount of the State and parish license of the defendant as a retail grocer and liquor dealer in said parish.

The payment of the license is resisted on the ground that the defendant is a planter and manufacturer of sugar, and that lie keeps a store on his plantation in which he sells to his laborers and employees alone only such provisions, goods, etc., as they require, not as a retail merchant does, exclusively for profit, but as an advance on their wages and as an incident to his main business; and that che license tax sought to be exacted of him is therefore illegal and void.

There was judgment for the plaintiff', and the defendant has appealed.

Tlie evidence shows that the defendant is a sugar planter, employing at times on his plantation as many as 300 laborers.

That he has a store on his plantation, from which are sold goods, groceries, etc., to the amount of $25,000 annually.

That he sells malt liquors in quantity not less than a pint, and which is drank at the counter.

That the bulk of his sales are to his employees, but that others than these, wishing to purchase at the store, are not refused. That the sales to the latter do not exceed $500 annually.

We think these facts bring the case within the provisions of Act 4, Extra Session of 1881—the present license law—which, among its other provisions, imposes a license as follows:

“That for every business of selling at retail, whether as principal or agent, or on commission, or otherwise, the license shall be based on the gross amount of sales, as follows: ...... Twentieth Class: When the gross sales are $25,000 or more, and under $30,000, the license shall be twenty-five dollars.” Sec. 6.

It is further provided in the same act and section that when liquors of any kind are sold in connection with the business, in quantities not less than one pint and more than five gallons, the license shall be double the foregoing.

We are referred to the case of Luling vs. Labranche, 30 Ann. 972, as sustaining the pretensions of the defendant. That decision was rendered before the statute referred to was passed; and besides, the facts of the two cases are not identical, since in the one referred to sales were made exclusively to the employees.

Lastly, it is urged that the license should be graduated, not by the total amount of the sales but by the amount of sales to the public, i. e., to persons not employed on the plantation.

Granting that the law as it now stands would not justify the exaction of a license where sales from a plantation store were confined strictly to the laborers on the place, still where this restriction is not observed, but the store is open to the patronage of the public, there is no warrant in the statute to measure the license by the quantity the public may buy. The lack of any restriction in this respect fixes the status of the business and subjects it to the license sought to be recovered in this case.

Judgment affirmed.


author: ' Manning, J.

text:
    No. 9486.
    Louise Harvey vs. George Pflug.
    If any one, under pretence of rights afterwards judicially determined to be unfounded, uses process of law to restrain another in the prosecution of a lawful claim, he cannot use the delay his own act has caused to defeat the claim he has wrongfully resisted. A party cannot provoke and protract litigation based on his refusal to deliver leased premises, and then avail himself of the lapse of time to avoid damages for his wrongful refusal. Prescription does not run pending the litigation thus provoked.
    Where proceedings in ejectment have been taken and the defendant justifies his holding-possession under an alleged unexpired lease and the issue has been determined against him, he cannot afterwards, when sued for damages for illegal retention of the property, set up again the alleged unexpired lease. The ejectment suit is res adjudicata upon that and cognate matters.
    Among the damages that a lessor is entitled to recover from a recalcitrant lessee who unlawfully retains the leased premises is a bonus that another lessee has bona fide offered for a long lease, the rental duiing detention that such other lessee has engaged to pay, the attorney’s fees paid by the lessor in getting possession of his property, and compensation for whatever advantages have been lost by the lessee’s obstinate withholding possession.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      Jas. D. Séguin for Plaintiff and Appellee.

      Henry P. Part for Defendant and Appellant.
   The opinion of the Court was delivered by

' Manning, J.

The object of this suit is the recovery of damages caused by a lessee’s unlawful retention of the leased premises.

In December 1880 and for some years antecedent thereto the defendant was lessee of certain property from the plaintiff by the month at $45 a month under a verbal lease. During that month Mrs. Clark offered the plaintiff to lease the premises occupied by Pflug for five years at fifty dollars a month, to make improvements of not less than $800 in value, and to pay cash a bonus of one thousand dollars for such lease. The plaintiff informed her that before her offer could be accepted Pflug must have the option of keeping the premises upon the terms and for the price offered by her. This new lease was not to begin until the following February. Pflug was promptly apprised of this offer and the option was given him of retaining the property. He did not avail himself of it.

On the last dav of December the plaintiff entered into the contract of lease with Mrs. Clark and received from her one thousand dollars as a bonus. On the same day a written notice was served on Pflug requiring possession of the premises on the first of the following February. Pflug did not vacate and on that day suit for possession was instituted in the proper court of Jefferson parish. The premises are immediately below Harvey’s Canal and facing the Mississippi river and consisted of a brick house used as a shop or store.

The litigation thus begun did not end until January 10,1882. Pflug interposed various exceptions in the Justice’s court which were over ruled, and then answered setting up a lease of the premises from the husband of the plaintiff from November 1,1880 for a year, and by supplemental answer and peremptory exception sought to oust the Justice of jurisdiction by averring that this lease exceeded one hundred dollars. Before decision of that issue, he applied to the District Court for a prohibition against the Justice taking further cognizance of the cause and obtained it. The Circuit court on appeal reversed that decision and ordered the Justice to proceed, and trial being had and judgment rendered against Pflug, he suspensively appealed to the District court which affirmed the judgment against him in January 1882 and he vacated eight days afterwards. This was nearly a year after the time when the plaintiff was entitled to possession and nearly three months after the expiration of the lease claimed by the defendant.

Meanwhile the plaintiff refunded to Mrs. Clark the bonus of one thousand dollars and in June 1882 instituted this action. The sum claimed is made up of the following items;—

Bonus refunded......................................$1,000

Rent lost for 11 months 18 days at $50 a month........ 580

Value of improvements that were to have been made.. 800

Attorney’s fees...................................... 350

$2,230

After a general denial and the plea of one year’s prescription the defendant avers that at the time the ejectment suit was instituted in February 1881 he was in possession of the premises under an nnexpired verbal lease from the plaintiff’s husband for the yearly sum of $540 pavablein monthly instalments of $45, and that the husband who acted and represented himself as owner repeatedly from year to year promised to allow that lease to continue on the same terms and conditions— that on the faith of this promise the defendant had made improvements worth $1200, and had besides expended other sums in painting etc.— that Mrs. Clark was his rival in business and neighbour and had mad the offer above detailed to get rid of him and monopolize the trade which seems to be considerable—-and that when Mr. Harvey informed him of Mrs. Clark’s offer he remonstrated that this was in violation of liis lease, and afterwards the plaintiff a stranger theretofore to him began the proceedings in ejectment. He claims $2,000 in reconvention as damages for loss of time, breaking up his business, cost of improvements, and disbursements for court costs and lawyer’s fees.

The plaintiff moved to strike out all the reconventional demand except the item for repairs and improvements and it was done, and the case was tried by a jury. The plaintiff had a verdict for $1800 and there was judgment for that sum with interest from judicial demand.

The plea of prescription may be disposed of at once. During the pendency of the litigation provoked by the defendant’s own acts, prescription did not run against the plaintiff. Even if the damages claimed arc ex delieto less than a year elapsed from the close of that litigation to the beginning of this suit. A party cannot provoke and protraet litigation based on his refusal to deliver leased premises and then avail himself of the lapse of time to avoid damages for his wrongful refusal. If any one, under pretence of rights judicially determined to have been unfounded, uses process of law to restrain another in the prosecution of his lawful claim, he cannot use the delay his own act has caused to ' defeat the claim he has wrongfully resisted. Boyle v. Mann, 4 Ann. 170; Stanbrough v. McCall, Ibid. 322; Martin v. Jennings, 10 Ann. 553.

As to the ownership of the leased property the proof that it is in the plaintiff is satisfactory, and there is abundant evidence throughout the record that when Pflug was verbally leasing from the plaintiff’s husband and otherwise transacting business with him he knew that Mr. Harvey was merely a business-man for his wife and that the property was hers. The verbal lease from the husband for a year that Pflug had set up was not proved. It is true Pflug complains that he was prevented from proving it by the plaintiff’s objection to its admission on the ground that the ejectment suit was res adjudicata on that and cognate matters. The objection was well taken. Pflug had resisted the ejectment on the ground of a pending lease and pleaded rightfulness of possession under it, and that issue had been determined against him. He cannot raise it again.

Sixteen written charges were presented to the judge to be given to the jury. He refused to give any of them and after examination of them we approve his refusal. We cannot say less and to say more would require an essay.

It is quite clear that the plaintiff is entitled to recovery. She has lost the bonus and the rent. The verdict gives her both and more, but not the whole of the two other items. She has paid $150 attorney’s, fees, and assuming that they are included in the verdict a small sum would seem to have been allowed for lost improvements. At any rate however the jury may have made up the sum we are satisfied the total is what it should be.

Judgment affirmed.


author: Poché, J.

text:
    No. 9570.
    Charles H. Reed vs. His Creditors.
    Every act required by law to perfect aa appeal when taken, must be performed within the delay allowed for taking the appeal.
    Hence a bond for a suspensive appeal, filed more than ten days, not including Sundays, after the date of the judgment, comes too late, and it cannot sustain a suspensive appeal. Hor can it sustain a devolutive appeal when it appears that the order of appeal was not in the alternative, but exclusively or solely for a suspensive appeal.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      B. R. Borman for Plaintiff and Appellant.

      W. II. Rogers, City Attorney, Blame & Balter and II. B. Don't for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The grounds of the motion are, that under an order for a suspensive appeal, the bond was not filed within the legal delay and that there is no prayer or order for a devolutive appeal.

Both grounds are supported by the record, and under the law the appeal must be dismissed.

The judgment appealed from was signed on the second of July, 1885, and the bond of appeal was executed and filed on the 15th of the same month, or more than ten days, not including Sundays, after the date of the judgment.

Appellant’s motion, and the order granted thereon, were expressly and exclusively for a suspensive appeal, hence the present could not be maintained or hold good as a devolutive appeal, for the plain reason that it would come up without an order of appeal, an omission which has always been considered as fatal.

The following rule has been so often applied in our jurisprudence thatit has now acquired the farce of an axiom or of a legal maxim :

_ “Every act required by law to perfect an appeal when taken, must be performed within the delay allowed for taking the appeal.” Wood admr. vs. Calloway, 21 Ann. 481; Ducournan vs. Levistones, 4 Ann 30; Dwight vs. Barrow, 25 Ann. 424.

Under its effect, the bond in this case was evidently filed too late, and hence the appeal as suspensive, cannot stand.

Now, as there is no order for a devolutive appeal, either directly or in the alternative, it cannot bo maintained under that character, for no appeal will lie in the absence of an order therefor.

If the appeal is presented as suspensive it falls because the bond does not comply with the order, if it be held up as devolutive, it falls for want of an order. Poole vs. Chaffe & Sons, 36 Ann. 589; Phillips vs. Creditors, 35 Ann. 935; Weiser vs. Blaise, 34 Ann. 833 ; Bank vs. Barrow, 24 Ann. 276; Dupré vs. Mouton, 23 Ann. 543.

This appeal is, therefore, dismissed at appellant’s costs.