text:
    No. 9813.
    The State of Louisiana vs. Louis Brooks.
    A motion for a continuance, made at tlie first trial of a prosecution for a capital offense charged to have been committed nine days before, ought to be granted, •when it appears that it is only on the preceding day that acoused could and did secure counsel, and that such counsel had no reasonable time to prepare the defense. Precipitancy, instead of accelerating, at times procrastinates ike trial of offenders.
    APPEAL from the Twenty-fourth District Court, parish of Plaque-mines. JAvaudais, J.

      M. J. Ctmnmyham, Attorney General, and James Willcmson, District Attorney, for the State, Appellee :

      1. “In matters of continuance great discretion is always vested in the trial judge, and his rulings thereon are not disturbed except in cases of glaring injustice.” State vs. Bord. 37 Ann. 457.
    2. The facts of this case show that the application for a continuance was without merit.
    3. The circumstances of this case are widely different from those stated in State vs Simpson, 38 Ann. 23.
    4. An overt attempt or act of violence by the deceased against the accused shortly before or at the time of the homicide must be proved before evidence of prior quarrels, threats or of the dangerous character of the accused can be introduced. 35 Ann. 74; 36 Ann. 148 j 36 Ann. 862; 37 Ann. 389 ; 37 Ann, 489; 37 Ann. 644; 37 Ann. 782 ; 37 Ann.897; 37 Ann. 443; 38 And. 22, and other authorities.
    5. The judge need only charge on questions of law which he deems applicable to the cause. R. S. sec. 891; 35 Ann. 970 ; 37 Ann, 576, 464.
    6. Where no constable has been elected, or where the constable has resigned, and beiug functus officio, no constable has been appointed or elected to fill the vaoahcy, the justice of the peace has power to fill the vacancy by appointing a constable pro tempore until the Governor exercises his power to appoint a peraianent or regular constable R. S. Sec. 637; C P. Art. 1158; Const! of 1879, Art. 258.
    The eligibility of an officer defacto cannot be questioned collaterally, ft. S. Sec. 2593; 21 Ann. 290; 21 Ann. 655; 21 Ann. 710; 26 Ann. 272.
    Where ministerial officers of a court are de facto and actually acting as such, their failure to give bond does not deprive them of their official status. 13 Ann. 401; 13 Ann. 607; 2 Ann. 83; 31 Ann. 379.
    Where a court is seized of jurisdiction ratio tie matarice, its process, however erroneous, is voidable not void and its orders must be respected. Holdano vs. Sumner, 15th Wallace 601.
    The quibbling points presented by the defense are not only unsound in law, but have no application, as whether the deceased was a constable or a simple individual, or whether he was a thief, the homicide of the deceased could not legally be justified under the state of facts disclosed in the record. Bishop on Criminal Law, 2d volume, par. 641.
    7. The judge having to take cognizance of the facts, in order to frame his charge so as to make it applicable thereto, properly refused to charge the jury as requested by counsel.

      U. T\ Beam'egarcl and Zacharie & Howard, for Defendant and Appellant :
    The accused is always eutitled to a reasonable time within which to procure counsel for his defense, and the counsel when so retained is entitled to a reasonable time within which to prepare the defense, regard being always had to the circumstances of the accused and his counsel so to do. 38 Ann. 24; 16 Ann. 425; 26 Ann. 422; Whart. Aiu. Grim. Law, p. 941, note; 7 Bay, 1; Lord Kilmarnock’s case, 2 Poster; Black. Rep. 514; Cons, of 1879, Art. 6. ,
    The recent occurrence of ahomioide, and the natural excitement of the community consequent thereon, is a good ground for a postponement and continuance, when the accused is brought to trial at the next term, immediately after the occurrence; 37 Ann. 457, not applicable here, as in that case the continuance was sought many months after the homicide, and did not and could not urge the recency. Bish. Crim. Proc., vol. 1, sec. 951; Wharton’s Am. Crim. Law, p. 944, 3d ; 9 Ga. 127; 5 Ga. 53 ; Jollyfer’s case, 4 T. 11. 285; 32 Ga. 581; 14 Ga. 8;. Thach O. C. 516; 2 Moody & R. 192; 26 Ga. 277; 18 Ga. 383; 7 Watts & Serg., 420,
    The right of the trial judge to decide as to whether sufficient proof of an overt act has been educed to allow the admission of evidence of threats and charactor in a homicide, is not an arbitrary one, but must be the exercise of a sound discretion, and is reviewable by the Supreme Court. 37 Ann. 461; 37 Ann, 645.

      It “ is a rule that positive testimony on a given point must always predominate over nega. tive testimony on tlie same point.” 33 Ann. 800 ; 37 Ann. 258 j Selfridge case.
    What occurred at a homicide immediately after the firing, is a part of the res gebtae&s throwing light on what had just occurred. What. Crim. Ev. sec. 262 et seq.; Selfridgo case.
    No man is bound to submit to the execution o£ a writ divesting him of his liberty or property issuing from a court without jurisdiction. Roscoe’s Crim. Ev. p. 750; Wharton’s Am. Crim. Law, p. 554; 3 Gilman, 336; Lieber’s Civil Liberty and Govt., vol. 1, pp. 131,134.
    An officer is bound to inquire into the authority of the court from which the writ emanates» and is a trespasser if he executes a writ of a court without jurisdiction. 7 N. S. 192; 8 R. 115; 3 Ann. 577 ; 9 Ann. 350.
    One entering on an office, public or private, without proper authority, subjects himself to all the responsibilities, and cannot claim the benefit of the position he usurps. 4 N. S. 525.
    A justice of the peace has no authority to appoint a constable pro tern, to a vacancy caused by resignation. Act of 1855, Cons. 1879.
    A constable must reside in the ward in which he shall have been elected. R. S. sec. 124. He must give bond before entering on his duties. R. S. sec. 632.
    In the trial for resisting of an officer, or of killing him, it is competent for the accused to show tbatthe deceased was not a legal officer nor executing legal process. Wharton’s Crim. Ev. sec. 883.
    A defacto officer in civil cases is one who comes into office by color of right, and performs the duties of the office under a public acquiescence, but is not properly entitled to the office. He must be either appointed or elected by competent authority, or must have for some time acted as such and been publicly recognized. Cooley on Taxation, p. 185; 13 S. and R. 208. But this will only give a grima fade right, which may be questioned. Blackwell’s Tax Titles, * 93; 1 DillC.C. 268; 7 -Tones N. C. 113; 73 N. C. 550; 37 Me. 428; 5Wend, 234; 24 Wend- 539; 16 Wend. 144; 60 Barbour, 248; 20 Gratt, 66; 33 Gratt, 513; 4Vroom, N. J., 201; 6 East, 368; 38 Conn. 476; 3 Bush. 17; 9 Nev. 334; 69 111. 529 ; 7N. H. 133.140; 56 Penn. St. 436; 29 Penn.-St. 129 ; 1 Nev. 188; 45 Miss. 151; 16 Peters, 71; 3 Port, 334.
    Nor do 1 Ann. 288; 12 Ann. 719; 21 Ann. 336; 25 Ann. 2; 27 Ann. 568; 32 Ann. 1234; 28 Ann. 82; 33 Ann. 1412, or 35 Ann. 521, militate against this doctrine in any degree “Where a trespasser goes with the intent to commit a felony, if necessary to accomplish the endintended, the owner of the property may repel force by force to the extent of killing the aggressor. Owner is not obliged to surrender possession, but may use as much force as necessary for its protection.” 8 Cal. 34; Horrigan, Self-defense, p, 900, and multitude of authorities there cited,
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused appeals from a verdict of manslaughter and a sentence of eighteen years at hard labor.

The record contains three bills of exception : one, to the refusal of the district judge to grant a continuance; another, to a ruling on a question of admission of testimony, and the last one, to the refusal of the judge to give certain charges to the jury.

It appears from the first bill that the homicide, with which accused is charged, was committed on the 29th of September, 1886; that he surrendered himself the same day, and was committed without bail; that he. was arraigned on the 4th of October following, and the case was fixed for the 9th ensuing; that when the ease was called ho moved for a continuance on the following grounds, viz :

That the accused was entitled to reasonable time within which to malee the necessary arrangements to retain and secure counsel, and that lie has not been allowed the same.

That said counsel, when retained, were entitled to a reasonable time within which to prepare his defense, and that, under the circumstances, they have not been so allowed.

That the evidence elicited and annexed, shows that the public mind is excited against him, so that he cannot have the fair trial which he may, when the excitement subsides.

The motion which was made for a continuance went into details to show the verity of the grounds, and is supported by the oath of the accused, which is fortified by that of the counsel.

It appeal's from the showing made, that it is not until the 8th of October, the day preceding that fixed for the trial, that the accused could make definite arrangements with counsel for his defense and that the latter could not, in the short delay ensuing between the occurrence of the act and the day assigned for trial, prepare the defense in such a manner as the gravity of the case demanded, involving the life of a citizen ; that the counsel could not procure the necessary books in time, although due diligence had been used, and could not safely proceed to trial in this unprepared condition, as the case, it was alleged, involves many nice and intricate questions of law, requiring long, patient and careful study and consideration of authorities.

Prom the foregoing recital it appears that the accused was convicted on the ninth day following the commission of the offense for which he was indicted, and that the application was made for a continuance on the first calling of the case for trial.

In State vs. Ferris, 16 Ann. 425, this Court said, in reference to accused in criminal cases:

u The law securing to them the assistance of counsel, did not iutend to extend a barren right, for, of what avail would be the privilege of counsel * * * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter into the investigation of the case.”

In a more recent prosecution, State vs. Simpson, 38 Ann. 24, this Court held, that the right to be heard by counsel, guaranteed by the Constitution to the accused, is not an empty formality, but an inestiniable privilege, and that such counsel should be allowed reasonable time to prepare the defense.

In that case, singular enough, the ruling was made by the same judge, the defendant was represented by the same counsel, and the accused arraigned and tried on similar days, the former onthootli, and the 9fch of October.

The showing then made for a continuance was substantially the same, if not somewhat weaker, tliau that in the iustant prosecution.

If, in that case, the lower court erred in its refusal to continue the trial to some other day, we cannot but rule now, that the postponement of the same ought to have been allowed.

Precipitancy, instead of accelerating, at times procrastinates the trial of offenders.

This view dispenses us from passing on the other grounds for a continuance.

It is therefore ordered and decreed that the verdict herein he set aside, and the sentence and judgment thereon reversed, and that this case he remanded to the lower court for further proceedings according to law.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9875.
    Louis Breaux vs. Estival Sarvoie, et als.
    To execute voluntarily, under Article 2272 B. O. 0., is to execute with the intention to confirm or ratify.
    The act from which confirmation or ratification is sought to be deduced, must evince such intention clearly and unequivocally. None will be inferred when the act can be otherwise explained.
    In cases of doubt, the party to whom the act is opposed must have the benefit of the doubt.
    A purchaser who pays interest on a note of his vendor, in the hands of a third person, assumed by him. as part of the price of the lands bought, and which he had bound himself before thesale to pay to such person — cannot he treated as one voluntarily executing an obligation, so as to deprive him of the right to prosecute a suit pi eviously instituted by him against his vendors to rescind the sale.

      \ PPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      O'SulWocm & BlaJce, for Plaintiff and Appellant.
    The seller isbound to deliver and warrant thing sold. O C. 2475, 2476,2482,2511; 3L. 306; 6 B 506; 3 Ann. 327; 16 L. 185; 24 Ann. 108.
    Under C. O., Art. 2272: “ * * * The confirmation, ratification, or voluntary execution in due form * * * involves a renunciation of the means and exceptions that might be opposed to the act, * * ” The intention must he to ratify by the voluntary execution. 171 L. 286.
    The acts of a party from which the ratification of a contract is sought to be deduced must evince clearly and unequivocally his intention to ratify. 21 Ann. 593; 30 Ann. 1290.

      All the acts of the plaintiff can be accounted for ■without a ratification of the sale necessarily resbfiting from them. 13 Ann. 176.

      L. P. Oaillouet and Knolloch, Moore & Badecmx, for Defendant and Appellees:
    1. The voluntary execution of a contract, with the full knowledge of the grounds upon which it might be rescinded, amounts to a tacit ratification of it, and involves a renunciation of the means and exceptions which might have been opposed to it. C. 0.2272; 5 " R. 354 ; BE 443 ; 4 Ann. 148; 2 R. 1; 13 La. 175 ; 10 M. 726.
    2. Nor does it make any difference if the voluntary execntion be only partial. 2R. 1; 4 Ann. 148; Duranton, vol.4, No.280 ; Larombiére, vol. 4, p. 632, sec. 43.
    3. The purchaser who voluntarily pays a part of the price, with full knowledge of the defects for which the sale might be rescinded, ratified the contract thereby. Larombiere vol. 4, p. 633; Toullier, vol. 8, No. 503; Duranton, vol. 4, No. 278; 6 Ann. 53; 4 La. 238; 31 Ann. 833.
    4. One cannot do an act which he is at liberty to abstain from, and claim immunity from its legal consequences. 18 Ann. 59.
    5. Error of law is not presumed. He, who relies on it, must prove it to a certainty, and if there be any doubt left, his adversary must have the benefit of it. 4 R. 145 ; Larombiere, vol 4 p. 630, see. 38 i
    6. A contract entered into, or payment made, to avoid litigation, cannot be rescinded. O. O. 1846, 5 La. 113 ; 4 R. 207.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the. rescission of a sale of real estate, on the ground of deficiency in the quantity of the lands sold and those delivered.

It is brought against the vendors and also against parties claiming the deficient lands, as their property.

The vendors filed a plea of ratification, which was sustained.

From that judgment tlie plaintiff appeals.

The evidence shows that, prior to purchasing the real estate, the plaintiff went to a party who held a vendor’s note secured on the property, and obtained from him, in the event of a purchase, that he would allow time — three years — provided the annual interest was paid punctually. On that promise, the plaintiff bought the lands, paying-part of the price cash, issuing his notes for another portion and assuming the. note then in the bands of the third party, which note had been issued by plaintiff’s vendors, and was secured by privilege on tlie property.

Subsequently, on the allegation that there was a deficienejr in tlie lands sold and those delivered, which lands were in the possession of named persons, who claimed ownership — the plaintiff brought the present suit to rescind tlie sale.

After the institution of tlie suit, plaintiff went to the holder of the assumed note and paid him the interest on it.

Aware of that circumstance, the defendants, who are plaintiff’s vendors, filed a peremptory plea of voluntary ratification of the sale as made and executed and of abandonment of the suit to rescind.

The question presented is therefore: Whether the payment of the interest by plaintiff, on the assumed note, in the hands of the third party, does or not operate such ratification and abandonment.

The Code (Art. 2272, § 2), declares that, in default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, and that this involves a renunciation of the means and exceptions that might be opposed to the act.

We have given the question most serious attention, as the case now-presented is without any formal precedent in our jurisprudence.

We have extended our researches to the French law and adjudications, as our article is taken from the French Code; besides examining tlie authorities to which counsel have referred on both sides.

We liave the satisfaction of having reached the conclusion that the payment made by the plaintiff to the third party, is not a voluntary ratification of the sale, as executed, and is no bar to the further prosecution of this suit.

It is apparent, at the very threshold, that the plaintiff, when he purchased the property, assuming the note in question which was then in the hands of a third person, not party to the act, made himself liable personally for the payment of the note, and that the holder of it could, at maturity, in the absence or failure of payment of the interest, as agreed on, have proceeded directly against the plaintiff.

Delisle vs. Succession of Moss, 34 Ann. 164.

The authorities to which counsel for exceptors have referred, do not appear to have any special application to the case at bar, in which the question of ratification or confirmation does not arise on an act done between vendor and vendee, the parties interested; but in which the act done by the purchaser charged as being an estoppel, was executed in favor of a third person, in furtherance of an obligation contracted, in his favor, anterior to the purchase.

It is true that this obligation was suspended until the purchase had taken place, but it acquired binding force and effect, it became final, when the purchase was consummated.

After a full and scientific review of what amounts to a voluntary ratification or confirmation, and a discrimination between them, Laurent, in the light of the textual provisions of the Code of France, of the decisions of courts of that country and of the opinions of commentators on the French law, cites a case stronger than that now under consideration, and reaches the conclusion that it does not amount to a voluntary ratification or confirmation.

“L’acheteur, says he, donne en payement du prix, des billets a ordre; le vendeur les endosse au profit d’un tiers. Si l’acheteur paie le billet, dira-t’on qu’il execute volontairement la vente? Non, car il est oblige de payer le billet, á son échéance au tiers porteur. C’est done une execution qui n’implique pas la volonté de renoncer a ses droits. Cela est certain * * 4 L’exécution matérielle ne suffit pas, il faut Vintentíon, e’est-a-dire, un fait qui róvéle l’intention de celni qui l’exócute et une intention certaine, car les renonciations ne se prósument pas, c’est au juge k distinguer le fait intentionnel du fait materiel.” 18, No. 623, p. 634.

He also says :

“On dit encore que l’exécution n’est pas volontaire et par suite, ne vaut pas confirmatiqn, quaud le débiteur a execute pour arréter les poursuites du créancier.” Ib. No. 622, sec. 2, p. 633.

After considering the article of the French code of which onrs is a copy, he says:

“Exécuter volontairement, c’est done exécuter avec l’intention de confirmer.” Ib. No. 621, end of session paragraph, 622-3.

Duranton supposes a similar case, aggravated by the circumstance of a sale on credit made on fraudulent representations, in which payment to a third person is made after the discovery of the fraud.

“Il ne rósulte pas, says he, de ce paiement une approbation tacite et volontaire de l’acte, ear il (le débiteur des billets) est obligó de les payer au porteur a échéance, sauf son recours contre celui qui l’a trompé. Vol. 13, p. 296, No. 282, § 1.

Larombiere says that, as the acts from which confirmation or ratification is sought to be deduced, have no value otherwise than as indicia of the intention on the part of him from whom they emanate, that intention can be inferred only from a voluntary execution, which must be enlightened, reasoned, and exempt from all error. Vol. 4, p. 625, No. 35, § 3. A simple demand for time to pay, or an offer to which has not been accepted, and which could be withdrawn, cannot be considered as acts constituting a voluntary ratification. Ib., p. 634, No. 45.

Zacharie, after saying that the voluntary execution must rest on unequivocal facts, concludes that, in case of doubt, the act is not to be deemed ratified. Vol. 2, No. 421, p. 384.

As to the character of the fact or act invoked as a confirmation or ratification, the jurisprudence of this State, gathered from the following authorities, is to the same effect, namely: that the acts from which Hie ratiiication of a contract is sought to he deduced, must evince such intention clearly and unequivocally.

None will he inferred where those acts can be otherwise explained. Rivas vs. Bernard, 18 L. 175; Bennett vs. Bennett, 12 Ann. 254; Copeland vs. Miskie, 12 La. 293; 11 M. 615; 3 Ann. 280; 15 Ann. 569.

We deem it unnecessary to quote from those decisions, as the facts are not identical, hut simply kindred, to those presented in the present controversy. The propositions of law announced may be considered as general in terms, though applicable to a considerable extent to the contentions now before us.

Looking into the facts, not only do we not find in the act charged, an act voluntarily done; that is, an act which the plaintiff could with certain impunity to himself have omitted doing, hut also do we find, his formal declaration, wdien on the witness stand, showing what his intention was at the time that he paid the interest. On that subject, he says, that he paid the interest, because he thought he was in honor hound, in consequence of his agreement to do so, with the holder of the note, and feared a law-suit.

We therefore conclude that the plaintiff has not done a voluntary act, from which it can be legally inferred that he intended to confirm the sale as executed, and to abandon the suit brought to rescind it.

The plaintiff has argued orally and in brief that an exception of no cause of action filed by the defendants had been properly overruled.

The merits or demerits of that defense is not before ns in this appeal, and cannot he considered.

It is therefore ordered and decreed that the judgment appealed from he reversed, that the plea set up as "an estoppel to the further prosecution of this suit be overruled; and it is further ordered and decreed that■ this case be remanded to the lower court, to be further proceeded with according to law, and that defendants pay costs of appeal in both courts.


author: Poché, J.

text:
    No. 9719.
    J. M. Villavaso et al. vs. Louis Barthet et als.
    The pendency of a suit in the Circuit Court ot the United States, involving the alleged unconstitutionality and illegality of a city ordinance adopted on the 12th of May, 1885, is not a bar to the right of a State court to entertain jurisdiction of a controversy involving another and a subsequent ordinance of the same Council on the same subject, passed at a date posterior to the institution of the suit in the Federal Court. Article 248 of the State Constitution of 1879 contains a delegation of a complete and exclusive power to tlie city of New Orleans, to regulate the slaughtering of animals for food within its corporate limits. It embraces a delegation of the police power inherent in every sovereign government, which cannot be the subject of a contract, and which is not exhausted wlien once exercised on any subiect falling within its scope.
    In the exercise of its police power the city of New Orleans has the unquestioned right to restrict the slaughtering of animals for food to certain designated districts or localities.
    It has also the right to change the designated districts for such business, if the slaughterhouses established under its previous authority should become nuisances to the surrounding neighborhood. But that- discretion is not arbitrary, it must be exercised with wisdom and caution.
    An unconstitutional provision in a city ordinance does not vitiate the whole ordinance, unless the two provisions are so closely connected in object and meaning, that the one cannot exist without the other. When a municipal corporation passes an ordinance, legislative in its character, importing no private contract or rights, the members of the corporation enjoy the same prerogatives as members of a State Legislature, and their conduct or motives in passing the ordinance cannot be questioned.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissoi, J.
    TP7iife & Bewilders for Plaintiffs and Appellees:
    1. The ordinance of September, 1885, changing the limits within which slaughter-houses could be lawfully carried on, was a lawful exercise of municipal authority. Cons. 248,
    2. The slaughter-house of defendant, being outside of the legal limits, became unlawful, lienee a public nuisance, as well as a private nuisance, to those in proximity to whoso residences it was established.
    3. As a public and private nuisance, the residents of the vicinage were authorized to invoke its suppression by judicial process. Blanc vs. Murray, 36 Ann. 162.
    4. The ordinance of September, 1885, being a police regulation, the defendant cannot refuse to obey its provisions, under the pretense of vested right. If lawful, when established, his business was subject to the future exercise of the police power. 33 Ann. 934 ; Butchers’ Union vs. Orescent City Co., Ill U. S. 746.
    5. The Coartwill not substitute its discretion for that of the city, when the city exercises police power delegate to it alone.
    6. But if the Court could do so, the facts justify theordinance, and show its wisdom.
    7. The limits designated by the Ordinance of September, 1885, impliedly are those sanctioned by the Constitution. 33 Ann. 934.
    8. Where a municipality exercises a general legislative and police authority, courts will notinquire into the motives of the legislators, in order to avoid the legislation. Billon, vol. 1, No. 313, p. 826, 3d ed.; Jones vs. Loving, 55 Miss. 109; Paine vs. Boston, 124 Mass. 480; 59 Penn. 257; Indiana, 458 ; 3 Benio, 20 j 44 Mo. 491.
    9. No tender of proof, as to corruption of the city government, was made.
    10. If made and rejected, the ruling was correct, as the evidence was inadmissible. Cooley Const. Limit. 135, 136,186, 208.

      B. li. Forman and F. H. McGaléb for Defendants and Appellants:
    1. While the power is delegated to the municipal authorities to designate the area within which slaughter-houses can he carried on, in the exercise of that power they are prohibited from creating or perpetuating a monopoly, directly or indirectly, or restricting the business of slaughtering animals for food to the lands or houses of any individual or corporation. Arts. 248 and 258 Constitution.
    2. When the City Council in designating an area in which many competitive slaughterhouses might be carried on, required permanent and expensive structures to be made ‘ such as steam pumps, an abundant supply of cold and warm water, and large closed discharge pipes leading into the river below low watermark, etc., as it did in 1881; and when on the faith of that ordinance defendant has put up such structures, at an expense exceeding §10.000, and established a business, the City Council cannot arbitrarily and summarily close him up and banish him to an inaccessible point. Such action would deprive the defendant of a vested right, and deprive him of his property without duprocess of law, and without previous compensation paid to him; in violation of the Cone stitation of Louisiana, Arts. 155 and 156, and Art. 6, and in violation of the 5th and 14th amendments to the Constitution of the United States.
    3. The ordinance of September, 1885, is null and void for the foregoing reasons, and because it designates no place where slaughterhouses may be carried on, and its effect is to perpetuate a monopoly and to restrict tbe business to the lands or houses of apartic - ular corporation, and it delegates to the majority of the neighbors the decision of questions which must be determined by the Council itself within its power.
    4. An area having been designated for slaughterhouses in 1881, which, after much litigation, has been maintained in the courts — contradictorily with a citizen in the same neighborhood — and during the multifarious litigation which followed the plaintiffs kept silent, they are estopped in equity from complaining, and seeking to make defendant tear down his expensive structures.
    5. Unless the evidence shows that Barthet’s slaughterhouse was in fact a nuisance plaintiffs have no right to complain.
    6. That which is legal cannot be a nuisance to be suppressed by injunction. Howell vs. Bntchers’Union, 36 Ann. 63; Sicard vs. Cliifcz, 13 L. Ill; New Orleans vs. Warden, 1L Ann. 244; Leigh vs. Westervelt, 2 Duer, 618; Bemmick vs. Morris, 7 Hill, 575; Lewis vs. Behan, 28 Ann. 130; 0.0. 569 Digest Lib. 8, sec. 5; Domat, Parr 1, Book I, Art. XU, sec. 2, Ho. 1048.
    7. The Pederal Court having first acquired jurisdiction over the cause was entitled to hold it to the exclusion of the State court. New Orleans vs. Steamship, 20 Wall. 393; Memphis vs. Dean, 8 Wall, 64; Taylor vs. Taintor, 16 Wall. 470; Peck vs. Jannes, 7 How. 625; Butchers’ Union Co. vs. Orescent City Slaughterhouse Co., 37 Ann. 874.
    8. The proceedings and decree of the Pederal Court are binding upon a,11 the inhabitants of tbe city represented by the corporate authorities. Preeman on Judgments, sec. 178; Parker vs. Scoggin, 11 Ann. 629; Xiques vs. Bujac, 7 Ann. 499 ; Shields vs. Chase, 32 Ann. 410.
    9. Evidence should have been admitted to prove that the city ordinance of 1885 was procured by the Crescent City Slaughterhouse Company by corruption of the Council, and that this suit was instituted and maintained by them. State ex rel. vs. Cincinnati Gas Co., 18 Ohio, 300; Miners’ Bank vs. U. S., 1 Green, 553 ; Davis vs. Mayor, 1 Duer, 451.
   Tlie opinion of the Court was delivered by

Poché, J.

The main object of this suit is to restrain the defendants from carrying on the business of slaughtering animals for food in tlie immediate vicinity of plaintiffs’ residences, in the lower part of the city of New Orleans, in the square bounded by Peters, Flood, Delaronde streets and Caffln avenue. After alleging that the business complained of is in itself a nuisance, and that its close proximity to their residences renders it unbearable to them, plaintiffs charge that defendants’ slaughter-house is at the same time a public nuisacce, because it is carried on in violation of a city ordinance which restricts the business of slaughtering animals for food to another portion of the city.

The grounds of resistance relied on by defendants are substantially as follows:

1st. That the State courts are bereft of jurisdiction in the premises by reason of the pendency of a suit, in the Circuit Court of the United States, between Barthet, one of the defendants herein, as plaintiff, and the city of New Orleans as defendant, in which an injunction had been issued, before the institution of this suit, pendente Ute, restraining the city from interfering with Bartliet’s right of carrying on the business of slaughtering animals for food at the point described in plaintiffs’ petition.

2d. That the city ordinance of September 12, 1885, which forbids the maintenance of slaughter-houses in the portion of the city described in plaintiffs’ petition, is unconstitutional, illegal, unreasonable and oppressive.

The judgment of the district court perpetuated the preliminary in-j unction issued in favor of plaintiffs, and ignored their demand for damages. Defendants appeal, and plaintiffs have presented no motion for an amendment of the decree, hence the question of damages heretofore incurred by plaintiffs is eliminated from discussion in the present appeal.

I.

The plea to the jurisdiction was urged under the following circumstances :

During the progress of the trial, plaintiffs, in rebuttal, offered in evidence the record of the suit of Barthet vs. City of New Orleans, then pending in the Circuit Court of the United States. The object of the evidence was to contradict Barthet’s testimony in this case, as conflicting with his affidavit in the other suit.

At that stage of the proceedings defendants in this case tendered the issue, as a peremptory exception, that the State court was without jurisdiction to hear and determine the issues involved in this controversy, which were the same as presented in the suit pending before the Federal court.

An inspection of the record in that case, and of the opinion and decree rendered therein, shows that the issue in that controversy turned upon the alleged unconstitutionality of a city ordinance adopted on the 12th of May, 1885, the purport of which was to subject the right of maintaining slaughter-houses in the district herein above described, to the express permission of the council in each case.

The court held the ordinance to be unconstitutional, and issued a preliminary injunction restraining the city council from the performance of the threatened unlawful act complained of by Barthet.

That suit was instituted on June 22, 1885, and the decree was rendered in July following. Now the ordinance which is the groundwork of plaintiffs’ complaint in the case before us, was adopted on the 12th of September following; and its purport is lo restrict the slaughtering of animals for food to the fifth district of the city of New Orleans, situated on the right bank of the Mississippi river, to that district below the depot of the Morgan’s Louisiana and Texas Railroad Company, and extending to the lower limit of the parish of Orleans.

It is therefore very clear that an issue arising under an ordinance adopted on the 12th of September, 1885, could not have been presented, and that it could not have been judicially contemplated in a decree rendered, in a suit which had begun on the 22d of June previous.

The objection to the jurisdiction of the court a qua which was neither'a plea of lis pendens nor of res adjudieata, was properly overruled.

II.

The unconstitutional, illegal and oppressive features of the ordinance of September 12, 1885, are contained in several subdivisions :

1st. It is charged that the ordinance is void because it involves an illegal exercise of power on the part of the city, whose authority to designate places for slaughtering was exhausted by the ordinances of October and November, 1881, after which the city was stripped of the power to make any changes, as such changes would impair the rights of parties who had established slaughter-houses under the effect of the ordinances aforesaid.

Under the ordinances referred to, the city had designated a district which includes the spot on which the defendants have erected their slaughter-house, as the limits within which the business of slaughtering animals for food could be carried on, under the authority of the city.

The main object of the ordinance of September, 1885, is to operate a change in the limits established by the two previous ordinances of 1881. It. reads as follows:

“It shall be unlawful to establish slaughter-houses in the parish of Orleans, except in the fifth district thereof, below the depot of the Morgan’s Louisiana and Texas Railroad Company; and before the erection of any such slaughter-house, the particular location selected shall be approved by an ordinance of the city council, on a petition of a majority of the neighborhood. The operations in and about all slaugliter-liouses iu the city of New Orleans, shall be in accordance with the provisions of Ordinance No. 7336, Administration Series, adopted September 13, 1881.

“Art. 2. That all that portion of Ordinance 7376, A. S., adopted 13th of October, 1881, and Ordinance No. 7437, A. S., adopted November 18, 1881, designating the territory between Poland or Reynes street, the Mississippi river, Good Children street and the lower limits of the parish of Orleans, where slaughter-houses could be kept and maintained, be and the same is hereby repealed.”

If the ordinance is legal and binding in its effect, it is clear that the authority granted by the ordinances which it purports to repeal is recalled, and that the slaughter-house erected by defendants is undoubtedly prohibited.

The power of the city council to regulate the business of slaughtering animals for food, within the city limits, is derived directly from the Constitution of the State. Article 248 reads:

“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 live 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; provided, the ordinance designating the place for slaughtering shall obtain the concurrent approval of the board of health or other sanitary organization.”

From the language of the article it appears that the framers of the Constitution intended to vest in the enumerated subdivisions of the State, within their respective limits, the whole power inherent to a sovereign touching the regulation of the slaughtering of animals for food.

The power thus delegated is as complete, unrestrained and unshackled as it originally existed in the State itself, and its exercise can be circumscribed by no limits or conditions which could not apply to the State or to the sovereign whence it emanates.

Its description in American jurisprudence is the police power,.a governmental attribute which cannot be the subject of a contract, and to the free exercise of which no estoppel can be interposed.

It is therefore error to assert that in its exercise for the regulation of any subject, it can be considered as exhausted —and that it can never undo what it has once done.

In the sovereign, its existence is coeval with the government; in a subordinate State functionary, it lasts as long as the delegation thereof continues.

But its nature and scope, as well as its existence, are subjects long since removed beyond the domain of discussion; they have been well defined and safely consecrated in a long series of adjudications rendered by the Supreme Court of the United States, by our own Supreme Court and by those of many of our sister States.

In the case of the Butchers’ Union Company vs. Crescent City Company, 111 United States Reports, p. 746, in which the right of the State of Louisiana, under its police power, to abrogate certain franchises previously granted by the Legislature, was contested by the defendant corporation, the Court, in treating of this identical subject, used the following language:

“The denial of this power, in the present instance, rests upon the ground that the power of the Legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well-known but undefined power called the police power. We have not found a better definition of it for our present purpose than the extract from Kent’s Commentaries in the earlier part of this opinion. ‘ The power to regulate unwholesome trades, slaughter-houses, operations offensive to the senses,’ there mentioned, points unmistakably to the powers exercised by the Act of 1869, and the ordinances of the city under the Constitution of 1879. While we are not prepared to say that the Legislature can make valid contracts od no subject embraced in the largest definition of the police power, we think that in regard to two subjects so embraced, it cannot, by any contract, limit the exercise of those powers to the prejudice of the general welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of social organization that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.”

Similar views were expressed by this Court in the case of the Crescent City Slaughter-house Company vs. City of New Orleans, 33 Ann. 934.

In the case of Stone vs. Mississippi, 101 United States Reports, p. 814, that exalted tribunal said very emphatically, on this subject: “No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The suspervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. Por this purpose the legislative discretion is allowed and the discretion cannot be parted with any more than the power itself.” Fertilizing Co. vs. Hyde Park, 97 U. S. 659.

It will thus be seen that in the contest of the defendants’ predecessors, whose triumph resulted from the consecration of the principle that the police power is a continuing governmental attribute, they succeeded to open a door which cannot now he closed hy virtue of tlie same doctrine.

2d. Defendants’ next contention is that the ordinance is without effect as to them because their right to carry on a slaughterhouse at the point designated has been judicially recognized in the two decisions hereinabove referred to. 33 Ann. 934, and 111 U. S. 746.

That argument is practically answered by the considerations advanced hy us on the first point of contention.

3d. It is also urged that the ordinance is unjust and arbitrary j that the limits designated by it arc not adapted to the establishment of slaughterhouses, and that the designation of the limits fosters a monopoly, in violation of the Constitution.

As already demonstrated in this opinion, the city is clothed with the exclusive and constitutional mandate, to regulate, within its corporate limits, the slaughtering of animals for food. Under such a delegation of power the question might arise as to the authority of the judiciary to interfere with the legislative discretion thereby vested in the municipal authorities, for the purpose of checking an unwarranted or arbitrary exercise of the same. .

But granting the power of courts to encompass municipal action on the subject within proper limits, the evidence in the record in this case is amply sufficient to refute the charge of unjust, arbitrary or oppressive action on the part of the City Council in the change sought to be made by means of the ordinance of September 32, 1885.

On many points of our inquiry the testimony is conflicting, but the preponderance of the voluminous evidence in the record establishes on this point the following state of facts :

Defendants established their slaughterhouse on the main street or principal thoroughfare of the neighborhood, situated in the district designated in the ordinances of September, October and November, 1881, a street which runs along the banks of the Mississippi River, and on which stand the family residences of plaintiffs and other persons living in that portion of the city.

The slaughterhouse was built in very close proximity to the residences of plaintiffs, who luid selected that site for their homes, on account of the advantages of river breezes and ample supply of pure air, coupled with the orderly and quiet condition of the neighborhood.

A short distance below, also on the banks of the river, stand the United States Barracks, in which a garrison of troops, with the necessary complement of officers of the regular army is constantly quartered ; and for which the main supply of water is taken from the river by means of a pump and i>ipe worked by steam power.

In the month of April, 1885, while the slaughterhouse was in progress of erection, the resident neighbors, several of whom are plaintiffs herein, presented a written protest to the City Council, against the establishment and maintenance of a slaughterhouse in that locality and in which they detailed the several nuisances to which they and their families would be subjected by the proposed enterprise.

Their complaint was not then heeded, and the slaughterhouse began its operations on the 11th of July', 1885,

Practical experience soon demonstrated to the Council that a slaughterhouse is prima fade a nuisance to those who live in close X>roximity thereto.

Besides the usual adjuncts of such an establishment, such as the agglomeration of a class of men not desirable as neighbors, the driving of wild steers in the street to the terror and great danger of persons x>assing to and fro on the street, the loud and yelling voices of cowboys, the noxious smell of blood and of offal of slaughtered animals, came the polution of the water in the river through the action of the waste or discharge pipe used by the slaughterhouse for the discharge of blood and other refuse matter incident to such operations.

The complaints of the neighbors were thus reiterated, and became louder and more clamorous, as they were joined by the officer in command of the Barracks, who complained t.o the Council that the water which was pumped from the river for the use of the garrison was polluted through the operations of the slaughter-house.

A chemical analysis by an expert and competent chemist of several samples of water taken at the place where the discharge pipe empties its contents in the river, at longer distances below and immediately at the point where the suction pipe of the pump used at the barracks connects with the river, corroborated the charge made by the commanding officer of the barracks.

All these complaints, as well as the report of the chemist who had been selected by the counsel of the defendants, were referred to the proper committee of the Council, who gave a hearing to all parties concerned, and took the advice of the Sanitary Inspector of the Board of Health as to the nuisance condition of the business complained of. The committee on health then submitted their report to the Council; it consisted in recommending the ordinance which was adopted by the Council on September 12,1885.

In addition to all these elements of complaint going fax to show that the defendants’ business was a public as well as a private nuisance, the council had also to consider the fact that the defendants had omitted to comply with a very important sanitary condition exacted by the terms of the very ordinance under the authority of which they were operating their establishment. That condition was the use of a nuisance boat “amply sxxfflcient to hold and contain and carry off daily all offal, filth and waste” of their slaughter-house.

To dispose of such matter, the defendants hauled the same in carts, running in front of plaintiffs’ residences, to a nuisance wharf belonging to the city, situated a short distance above the slaughter-house.

Under this condition of things, the members of the city council deemed it their right, and conceived it their duty, to suppress the defendants’ business at the point selected by them.

With such a showing, this Court cannot and will not undertake to say that the action of the council was either xxnjust, unwise, arbitrary or oppressive.

It is well settled in jurisprudence, from lessons taught by nature itself, that “Slaughter-houses are regarded as •prima facie nuisances, and their existence so near to dwellings as to impair their comfortable enjoyment is an actionable injury, and their presence in a public place or near a highway, whereby the public is annoyed, although only for a temporary period, is a public nuisance.” Woods on Nuisances, p. 657.

“ The business of slaughtering cattle has been held to be a nuisance where no noxious smells were liberated therefrom, when carried on near a highway so that the smell of blood frightened horses passing it. * * * Also when the business was cai’ried on xxpon the banks of a stream, and the blood from the animals was discharged into the stream so as to pollute the waters thereof. Nor will the fact that the waters of the stream are already partially polluted, justify, or in any measure serve as a defense to an action for an increase of the nuisance, by the discharge of the blood and offal from a slaughter-house into the stream or by any other method.” Woods on Nuisances, p. 664; Howell vs. Butchers’ Union, etc., 36 Ann. 63.

With a view to subject these lessons of experience to a practical test in the incorporated cities of the State, but principally in the city of Now Orleans, the framers of our Constitution delegated the power, full and exclusive, to the constituted authorities of all incorporated municipalities to regulate the slaughtering of animals for food within their limits.

Now, in the exercise of that power, the city council ordained in September, 1885, that it shall be unlawful to establish slaughter-houses in the parish of Orleans, except in the fifth district thereof, below the Morgau Bailroad depot. We fail to perceive in that action any design or intent to foster a monopoly for the slaughtering of animals in the State.

From the reeord it appears Unit in the designated limits there is ample room to establish several slaughter-houses. True, the locality is not as convenient to that particular business as the limits prescribed in the ordinances of 1881, but this is a matter which must be left to municipal discretion, in the exercise of the police power. As a consideration, it must be held to be secondary to that of the public health and public comfort.

It may he, as contended by appellants, that the change will operate favorably to the benefit of the Crescent City Slaughter-house Company, whose establishment is situated on this side of the river, immediately below tlie lower limits of the city of New Orleans, in the parish of St. Bernard — and that the location of that slaughter-house is equally noxious aud injurious to residents in its vicinity. But the city of New Orleans has no control over that establishment, and these considerations can have no weight on the judicial investigation which now concerns us. Chances and advantages or disadvantages in trade or business cannot be regulated by judgments of courts.

4th. Defendants further charge the nneonstitutionality and nullity of the ordinance of September 12, 1885, because it exacts the consent of the city council and of the majority of the neighbors, as a condition precedent to the erection of a slaughter-house iu the designated limits.

This question does not properly arise in the present controversy. It could require judicial solution only in a case arising between a party who would desire to establish a slaughter-house in that locality, without complying with the imposed conditions, and the municipal authorities or any person or persons who would seek to interfere with him or his enterprise.

The. question before us is not the wisdom of the selection, but the right to enforce the prohibition contained in the ordinance.

Conceding for the sake of argument that the. condition imposed is unconstitutional or, as alleged, impossible of execution, it cannot invalidate or vitiate the whole ordinance.

Without it the prohibition to slaughter animals in the parish of Orleans, except in the designated district, is complete for two purposes, namely: the prohibition on the one hand, and the permission on the other. The legal object and the void provision are not so connected together iu meaning and intent that the one could not legally exist without the other.

“Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet he perfectly distinct and separable, so that the first may stand though the last fall.” Cooley’s Constitutional Limitations, 4 ed. p. 215.

This concludes our review of all the points made by defendants’ counsel, and ably supported both in oral argument and by brief.

But we must now direct our attention to bills of exception which they took from two rulings of the district judge, who rejected testimony proffered by defendants for the purpose of showing that the ordinance of September 12, 1885, was fostered, and that the present litigation was instigated by the Crescent City Slaughter-house Company, in order to retain its monopoly in the slaughtering of animals for food in the markets of New Orleans, in defiance of the Constitution.

The investigation undertaken by the defendants involved the right, which they claim, of questioning the intent and the motive of the council in passing the ordinance by which they have been injured.

The ordinance is clearly general and legislative in its character and scope; it does not purport to enter into a special contract with, or to confer any franchise upon, any individual or body, or combination of individuals. Hence, in this connection the members of the city council are entitled to the same privileges and prerogatives which belong to members of a State Legislature.

If a court of law can, in any case, inquire into the motives of members of the Legislature, it cannot do so collaterally.” * * 6 Cranch, p. 87, Fletcher vs. Peck.

From numerous respectable judicial authorities, Judge Dillon, in his work on corporations, has formulated the following principle:

“When the officers of municipal corporations are invested with legislative powers, they are exempt from individual liability for the passage of an ordinance within that authority, and their motives in reference thereto will not he inquired into.” Dillon, 3 ed. p. 326.

The passage of the ordinance now under discussion involved the exercise of the highest legislative power which could possibly be delegated to a municipal corporation under a republican form of government, namely: the police power.

The evidence was properly rejected.

If the defendants can prove against any member or members of the city council the charges which are intimated in their brief, their remedy is clear under constitutional provisions and existing laws.

But the issue as submitted to us in the pleadings is restricted to a question of usurpation of power, and of arbitrary and oppressive conduct, on the part of the council as a body.

Under that issue, important in itself, but restricted by the pleadings, the Court has no authority to investigate or ascertain what assistance, if any, plaintiffs herein have received from the Crescent City Company or other outside parties or influences. Our only concern is to ascertain, under the law and the evidence, whether they are entitled to the relief which they seek from the courts of their country.

The district judge has reached conclusions favorable to their demand, which he supports in an able, vigorous and well considered opinion,' from which we have reaped material assistance, and we concur with him.

Judgment affirmed.


author: Todd, J.

text:
    No. 9877.
    Firmin Lewis et al. vs. Abraham Klotz.
    The party who applied for a jury cannot waive the jury at the moment of trial, unless the other party consents.
    The seizure and sale of one-third interest in a plantation under lease and before its expiration, does not dissolve the lease as to entire plantation.
    When the term of the lease was two years, and the lessees bound themselves to leave on the leased premises, at the end of the last year of the term, a certain quantity of the products of the place, the purchaser at judicial sale of an undivided third of the plantation, made at the end of the first year of the lease, could not take possession of the • entire plantation and convert to bis own use the crops thereon, under the plea that, the lease being dissolved by the said sale and the crops thereou converted, not exceeding what the lessees were bound to leave there, under the contract, at the expiration of the term of lease, he had a right to take said crops. The crops belonged to the lessees, and they were entitled to recover their value.
    When the contract of lease is deposited in the recorder’s office for registry, and an indorsement made thereon by tho recorder, showing its deposit for record, but the contract is not recorded in the book ot conveyances, but in another book kept for the recording of leases, etc., such registry will protect the parties whether the contract, was recorded in the proper book or not. Arts* O. C. 2266, 2245, 2254 : Payne vs. Pavey, 29 Alin. Jifi reaffirmed.
    APPEAL from tlie Twentieth District Court, Parish of Assumption. Knobloch, J.
    IF. Jí. Howell, for Plaintiffs and Appelleos:
    («) When real estate is owned in indivisión by several persons, upon the undivided simio of one of whom a judicial mortgage is of record, and the whole property is leased by the joint owners by public act duly recorded, the seizure and sale of the encumbered interest does not dissolve the lease in so far as the other unencumbered interests aro concerned, and the tenant cannot be dispossessed of the unencumbered interests. The judicial mortgage and all rights under it must he restricted to the property of the debtor alone and cannot, in any possible manner, affect the property of third persons or any one holding under such third persons. R. G. O. Arts. 3278, 3279, 3282 and 3321; 12 Ann. 867 ; 28 Ann. 763 ; O. Ü. Arts. 2732 and 2733; TTeunen's Digest, vol. 2, p. 1365 ; 8N. S.,p. 336, 11 Ann. 95.

      (b) The purchaser at such sale is entitled only to joint possession with the lessees, who hold for the other joint owners. 23 Ann. 150 ; 33 Ann. 298.

      (c) A purchase)* of property at private sale, which property is under lease at the time, said lease being duly recorded, cannot legally take possession of the leased premises during the lease, audit he does, renders himself liable to an action in damages by the lessees. It. O. O. Aits. 2732 and 2733; 11 Ann. 95; IK. S. 264; 8K. S. 563.
    (d) All crops growing or gathered upon leased property, the product of the labor of the lessees, are the property of such lessees, and if taken possession of by the purchaser of suoh property at judicial sale thereof, under a foreclosure of mortgage or otherwise, renders him liable to the lessees for the highest, market value of such crops. 28 Ann. 763 ; 32 Ann. 201; Cooley on Torts, top page 433.
    (c) Every, at whatever of, man that causes damages to another obliges liim, by whose fault it happened, to repair it. R C. O. 2315.

      {/) All profits of which a person lias been deprived by the illegal acts of another, whether prospective or otherwise, are allowed at civil law when proved. G. O. Arts. 1933 and 1934; 10 Ann. 633; 3 L. 332; Sedgwick on the Measure of Damages, 7th edition, pp. 108-143.
    (#) Where an action for damages is tried by a jury they are peculiarly the judges of the measure of damages, and unless tlieir verdict is palpably wrong it will not be disturbed by the appellalo court. Hennen, vol. 1, p. 92 (b); 3 Ann. 670.

      (h) Every assertion of title to, or act of dominion over personal property inconsistent, the rights of the owner is in law a wrongful conversion, and proof of such acts is sufficient to establish suoh conversion. 2 Ann. 281,289.
    O') Every wrongful conversion of property of another constitutes the party so converting a trespasser, and renders him liable as suoh, the measure of damages to be determined by the fact, whether such acts were malicious or otherwise. 9 Ann. 490

      (j) The remedy in behalf of lessees prescribed by articles 2696, 2703 and 2704, of the R. O. O. is not exclusive, nor does it deprive the lessee of his action in certain cases against the party evicting him for the damage caused him, but the only penalty for failure to give the notice therein prescribed, is the loss of his remedy for damages against his lessor. 31 Ann. 71.
    (A*) When a defendant prays for (rial by jury in his answer, or subsequently, and the court so orders the trial, and the case is accordingly fixed for trial, itis too late on the morning of the trial, after the case lias been called for trial, for the defendant to waive the trial by jury thus ordered, and such jury trial cannot be thus waived unless the plaintiff consents, and contrary to his objections to such waiver. 2 M. 48; 10 Ann. 24.
    (0 The exception of no cause of acbian filed herein was properly overruled by the lower court. This is an action in damages, and arising out of a quasi offense committed by tbe defendant, and an action personal in its character, and could be brought by the plaintiffs. R. C. C. 2315: 6R. 38?; 9 Ann. 490; C- Part32; 27 Ann. G29; 28 Ann. 761.

      (tu) A party cannot ask for the dissolution of a contract and at the same time demand its specific performance, the one demand is repugnant to and inconsistent with the other. He cannot ask to dissolve a sale and at the same time demand the purchase price. 31 Ann. 73; Hennen, vol. 2, p. 1138II, (a) Hos. 2,12,13,23.

      (n) If the contract of lease is, by its nature, indivisible, then it cannot be divided for any purpose; it must be wholly enforced or wholly annulled and dissolved. 7 Ann. 612.

      (o) In all bi-latteral contracts, when reciprocal obligations are assumed, these obligations cannot be all enforced on the one side and not enforced at all against the other side. And if one of the contracting parties is released from the fulfillment of his obligations, the carrying out of wliicb was the very consideration for the obligations engaged to be performed by the other side, the latter party is likewise released. 10 L. 23 ; Hennen, vol. 1, p. 803. (e) Ho. 6; 3L Ann. 67; 1 Ann. 422.
    (/>) lb ofits, of which a person is illegally deprived by the act of another, are recoverable, of whatsoever nature or kind they may be, and any such profits proven to have been thus lost must be accorded.

      (q) Defendant’s demand in reconvention was properly disallowed, and all evidence offered to prove it properly rejected, because the allegations of said demand do not upon their face set forth any cause of action against plaintiffs, and because irrelevant and inadmissible under tbe pleadings, and not incidental to or necessarily connected with, or growing out of plaintiffs’demand. 2R.216;3R. 387 ; 9 Ann. 7 ; 14 Ann. 859 ; HR. 347; Hennen, vol. 2, p. 1173 (b) 14 Ann. 734.

      O') Interest at the legal rate properly runs from the date of wrongful taking, and even if it does not, the court should apply the rule of “ 7)e minimis non curat lex,” and should not, even if the judgment is amended in this small particular, throw the cost of appeal upon the appellee! Hennen, vol. 1, p. 99 ; 38 Ann. 347; 7 Ann. 116. 847 ; 38 Ann. 347, Sedgwick leading case on the measure of damages, p. 597.
    (*•) Ho question of partnership or partnership rights are involved in this case. The lessors were simply joint owners of the leased property.
    (/) Even should the Court hold the lease to have been dissolved, so far as the whole property was concerned, by the sale of the encumbered portion under the judicial mortgage, still the lessee cannot be held for anything in the nature of future rents, all obligations arising under and by virtue of the contract of lease are put at an end by the dissolution of the contract. 1 Ann. 421; 31 Ann. 70.
    00 The lease in this case was properly recorded in the office of the conveyances in the parish where the leased property is situated. R. C. ('. Arts. 2266, 2254,2245; 29 Aim. 116; 33 Ann. 1250.

      Waller Quion, for Defendant and Appellant:
    1st. The suit should have been dismissed on the exception of no cause of action, because plaintiffs having alleged that, as lessees, they had been evicted from the leased premises by defendant-, a third party, upon a certain claim of right to such property, which, as plaintiffs alleged, “ he claimed was his private property,” could not hold defendant responsible for the damages claimed to have been suffered by them, and could only pursue their rights, if at all, against their lessors, Gonzales & Co., and furthermore, having alleged in their petition that they had been dispossessed of the property leased, which they had held possession of under a lease “for more than one year,” plaintiffs have given to their suit the character of a possessory action which, as lessees, they have no right to institute. C. C. Art. 2703 (2673); Art. 2704 (2674); Art 2696 (2666); C- P. Art. 48; 2 La. 227; 23 Ann. 427; 31 Ann. 71; Marcadé, vol. 6, pp. 456, 457.
    2d. That the lease relied upon by plaintiffs, as having been entered into between them and the agricultural firm of Gonzales & Co., was in no- manner binding upon defendant, a third party, because the same was never recorded in the hook o f conveyances of the parish of Assumption, the only proper place where the registry of the same could affect or serve as a notice as to third persons. See 30 Ann. 437: 38 Ann. 1121; 9 Ann. 504; 5 Ann. 263.
    3d. That, even granting for the sake of argument, the lease declared upon by plaintiff’s was rocorded in the proper place to serve as notice to thiid persons, of its existence and inscription, nevertheless, the same was, in its nature, essentially indivisible and inca pable of existing except as a whole and in its entiiety; and that the seizure and sale by Dorcino Landry, a judgment creditor of Jean Gonzales, one of the members of the firm of Gonzales & Co., the lessees of plaintiff’s, of the undivided one-third of the plantation so leased under a judgment rendered and properly recorded in the Mortgage Office in the parish of Assumption, long prior to the execution of the lease to plaintiffs by Gonzales & Co., cut off and dissolved, in its entirety and as awhole, the lease under which plaintiffs claimed the possession and the right of possession to the property ; and that defendant, having purchased, at the sheriff’s sale made in the suit of Dorcino Landry vs, Jean Gonzales, the undivided third of said Jean Gonzales in the property, and immediately thereafter having purchased the remaining two undivided thirds of the same from the other two owners thereof, had the absolute right to enter into and take possession of the plantation as a whole, without incurring any liability whatever to plaintiffs by reason of such possession or otherwise. C. C. Art. 2823. (2794); 14 Ann. 108; 12 La. 210; 2 Ann. 478; 15 Ann. 661; 30 Ann. 1314, 404, 32 Ann. 203.
    4th. That even should it be held that the lease relied upon by plaintiffs was duly recorded so as to affect defendant, and that it should be further held that it was not indivisible and not dissolved and cut off in its entirety, by the seizure and sale under the judgment in the suit of Dorcino Landry vs. Jean Gonzales, nevertheless, defendant, as the purchaser, at the sheriff’s sale made in that suit, of the undivided one-third interest of Jean Gonzales, in the property so leased, had the undoubted and absolute right of taking and entering into possession of the undivided third of said property, free from any rights or claims of plaintiffs under that lease, and that even in this case, if defendant had taken possession of and worked the whole plantation, plaintiffs would have no right of action against him by reason thereof, unless defendant has made a profit from said plantation, and that then plaintiffs should be compelled to remunerate defendant for all proper ex • penditures incurred by him in carrying on the plantation, and should not be permitted to recover from defendant unless he had mismanaged the property, or bad made a profit from it, or had maliciously deprived them of the use and enjoyment of the two-thirds not sold in the suit of Landry vs. Gonzales. C. C. Art. 2295, (2274); Art. 2299, (2278); 10 Ann. 257; Art. 1965, (1960); Hennen, vol. 2, p. 1020, No. 19; 4 Ann. 76; 7 Ann. 130 ; 12 Ann.354; 22 Ann. 489; 30 Ann. 1099; O. C. Art. 2314 (2292.)
    5th. That plaintiffs, for the reasons given and by further reason of the fact that defendant, instead of making any profit from the crop made in 1881, on the “Gonzales” plantation, incurred a heavy loss, notwithstanding a skillful and economical management of the property, have no right of action, nor claim against defendant, for any supposed profits resulting from the crop operations of that year. Nor is their claim for the alleged value of seed cane, corn and hay, which the said defendant took possession of with the plantation, entitled to give any greater consideration, because, under their lease with Gonzales & Co., plaintiffs received with the leased plantation a certain quantity of corn, hay and seed cane, which they bound themselves to return with the plantation at the expiration of their lease, and that the quantity which defendant took possession of with the plantution, when he entei ed into possession under their lease, and which quantity the evidence shows has never been otherwise, returned to their original lessors, nor any one else. 32 Aun. 203; C. (J. Arts. 2710, 2680.
    6th. That the lease relied’ uponby plaintiffs, if ever binding against defendant, was dissolved by the seizure and sale in the suit of Dorcino Landry vs. Jean Gonzales, and that defendant, as purchaser of one-third of the plantation at that sale, and of the other two-thirds thereafter, had the right to take possession of the corn, cane and hay, as pai't and parcel of the leased premises, and which, by the terms of the lease, plaintiffs wore bound to return and abandon with the plantation at the expiration of their lease. And if, on the other hand, the lease was not dissolved in its entirety by that seizure and sale, it was certainly dissolved as to one-third of the property, and that as defendant had the undoubted right to enter into possession of one-third, at least, of the plantation, and work the same for his own account, plaintiffs cannot hold him responsible for the corn ami hay so taken possession of by him with the plantation, for the same were used by defendant, and the seed cane planted by him to make the crop of 1881, for the recover/ of the alleged profits of which plaintiffs have also sued defendant. The two claims aro inconsistent and destructive of each other.
    7th. The district judge erred in his rulings, during the trial, in the following particulars:
    1. In refusing to allow defendant to waive the trial by jury previously prayed for by him, on plaintiff’s counsel objecting to such waiver, though not making a specific prayer for a jury on behalf of plaintiffs. O. P. Arts. 494, 495; Hennen, vol. 1, p. 767 (b), Kos. 3, 4, 7, 9.
    2. In allowing plaintisfl’ counsel to introduce evidence, lor the purpose of establishing the value of the seed cane left on the leased property by plaintiffs, and taken possession of by defendant; and also the quantity of sugar and molasses made on the property in 1881, while in defendant’s possession, and the value of same O. C. Art. 2703, (2673); Art. 2704, (2674); Art. 2696, (2666); O. P. Art. 48, 2La.227 ; 23 Ann.427 ; 31 Ann.71; Marcadó, vol. 6, pp. 456, 457.
    3. In refusing to allow defondant to establish, by the testimony of defendant himself, and by other evidence offered by him, by way of reconvention, the amount of expenses incurred by him during the year 188J, upon the “Gonzales” plantation, as alleged and set forth in his answer, and in restricting the evidence, as he did, to disproving plaintiffs’ allegations for the recovery of loss of profits, and for no other purpose.
    8. Tlie district judge also erred in his charge to the jury in the following particulars, by refusing to charge the jury as follows:
    1. That a lessee of a plantation is bound by law to leave the property so leased whenever the lease is put an end to. in the same state in which he received it, and that he must return with it everything that he received with it, and everything that he agreed to do-liver with it at the termination of the lease.
    2. That when a party leases a plantation with farming implements thereon, and takes with it seed cane, hay and corn belonging to the lessor, and upon the plantation at the time of taking possession with the obligation of returning the same quantity of such property at the termination of the lease, the lessee is hound to return such seed cane, corn and hay, with the leased property, whenever the lease is terminated, as one of the obligations and stipulations of his contract, and as part of the leased premises.
    3 That if the jury believe from the evidence that plaintiffs leased from Jean Gonzales & (Jo. their plantation, and that they received with it a certain quantity of hay and corn, to be returned with the plantation at the end of the lease, and that they further hound themselves to leave on the plantation at the termination of the Lease seed cane sufficient to plant a specified quantity of land, and should further believe that defendant purchased ata sheriff’s sale, mado on the execution of a judgment rendered and recorded prior to the lease so entered iuto, the undivided third of Jean Gonzales, and after said sale acquired the other two-thirds of the plantation, that then they, the jury, should consider defendant entitled, by reason of his said acquisition, to everything that should be returned by plaintiffs, as lessees, with the plantation; and that if the jury should believe that defendant took possession of any corn, hay or seed cane, when he took possession of the plantation, and which had been produced by plaintiffs, that they should then consider the quantity so taken possession of by defendant and should not hold him responsible for the same unless they, the jury, found that the quantity so taken possession of by defendant exceeded the quantity which plaintiffs received with the plantation when they took possession as lessees.
    9th. The judgment is erroneous in giving interest on the amount for which it is rendered, because no specific rate of interest is claimed in the petition of plaintiffs, nor any date fixed from which interest is asked to run; and, second, because the verdict of the jury fixes no rate of interest upon the amount found to be due, nor does the same provide any date from which the same should run. O. P. Art. 553; 30 Ann. 735; 20 Ann. 217.
   The opinion of the Court was delivered by

Todd, J.

On the 6th of January, 1880, the plaintiffs leased a sugar plantation from John Gonzales & Co., an ordinary partnership, composed of John, Perico and Raphael Gonzales, joint owners of the plantation leased, eacli owning an undivided third of the same. The lease was for the term of two years, ending on the 31st December, 1881.

Among the stipulations of the contract was one to the effect that the lessors turned over to the lessees a lot of corn and hay then on the place, which the lessees were to return at the expiration of the term of the lease ; and they were also to leave on the plantation at that time seed cane enough to plant twenty arpents of land.

The lessees took possession of the plantation, and made a crop thereon the first year named (1880). In December of that year, the one-third interest of John Gonzales in the plantation was seized and sold, under a judgment obtained against him, and recorded in 1879. This interest was purchased at the sheriff’s sale by the defendant Klotz, who, on the same day, also bought, at private sale, the remaining interests in the property of the other proprietors — Perico and Raphael Gonzales. Klotz immediately went on the plantation, and took possession of the corn, hay and seed cane of the plaintiffs found there.

The plaintiffs then resorted to an injunction to restrain Klotz in his proceedings, and maintain themselves in possession during the residue of their lease, and claimed damages.

Klotz dissolved the injunction on bond, and continued in possession of the property.

Plaintiffs then filed an amended petition, in which was set out specifically the amount and character of the damages claimed.

The main items of these were :

One hundred dollars for the hay.

Two hundred dollars for corn.

Five hundred dollars for seed cane.

Twelve hundred dollars for net profits on the crop of 1881, which, under the terms of their lease, they were entitled to make on the place, but of which right they were deprived by the illegal act of the defendant in taking possession of the leased premises.

There was an exception of no cause, which was overruled, and properly so.

This was neither a petitory nor possessory action, as charged in the exception filed, but substantially an action for damages, claimed to result from the unwarranted taking and conversion of the plaintiffs’ property, and the alleged violation of their legal rights. No clearer or graver cause of action could be asserted ; and whatever rights the lessees might have preferred against this lessor on account of the acts of Kioto complained of, there was under the allegations of this petition a distinct liability on his part.

'Phe case was tried by a jury — a jury being prayed for by the defendant.

When the case was called for trial, the defendant, through his counsel, offered to waive the jury, and have the cause determined by the judge. To this the plaintiffs’ counsel objected, and the objection was sustained by the judge.

This ruling forms a ground of complaint, which we find embodied in a bill of exceptions taken by the defendant’s counsel.

'Phe ruling was correct; the jury had been asked for by the defendant, the case had been put down as a jury case on the jury docket, the jury were in attendance to try the case. To have it thus tried under the order rendered was a right enjoyed by both parties to the suit, regardless of the question as to which party had applied for a jury, and being thus a jury case, the jury could only have been dispensed with by the request and consent of both parties.

The answer of the defendant, after the general issue, resisted the plaintiffs’ demands upon the ground that the defendant’s purchase at sheriff’s sale of the one-third interest of Jean Gonzales in the plantation, dissolved the lease as to the whole of it; and that under this purchase and the subsequent acquisition of the interests of the other proprietors as sole owner of the property, he had the right to take possession of it regardless of the lease, and a further right to appropriate the corn, hay and seed cane raised by the plaintiffs, and found on the place, siuce the same did not exceed the quantity of the like product that the plaintiffs under the terms of the contract, were to leave on the premises at the expiration of the lease.

It was further alleged that there had been no proper record of the lease, the same not having been recorded in the book of conveyances, and that therefore was without legal effect.

It was further denied that the plaintiffs had a valid lease of the plantation, because the contract was made by one of the owners of the premises without the consent or authorization of the others.

Finally, it was averred that the defendant took possession of the plantation and the property thereon claimed in the suit with the consent of the plaintiffs.

I.

The purchase at sheriff’s sale of one-third of the plantation by the defendant did not dissolve the lease of the entire plantation, and render exigible, as contended by defendant, all the obligations of the lessees as fully as if the term of the lease had expired.

Granting that it dissolved tiie lease as to John Gonzales’s one-third of the land, it had no legal effect on the rights of the lessees to or upon the remaining two'-tliirds, not embraced in the seizure and sale.

The defendant, as owner of the one-third of the land under the adjudication, was entitled to take possession of the one undivided third of the plantation, but no more. He could acquire no greater right or title to the plantation, under his purchase, than John Gonzales, his judgment debtor, held.

He could have possessed himself of this interest, and if he chose, have cultivated the same ; but not so as to infringe upon the rights of the lessees over the remainder of the plantation. If this course did not suit him, or was deemed inconvenient or impracticable, he had the option to resort to a partition, and have his interest'segregated and made definite.

He had no more right to enter on the portion, or two-third interest of the plantation, under his purchase of the one-third, than a stranger would have had, and to this extent, and as relates to such portion, unaffected by his seizure and judicial sale, as stated, his attitude and conduct cannot be viewed otherwise than that of a trespasser. Becnel vs. Becnel, 23 Ann. 150; Balfour vs. Balfour, 33 Ann. 198; C. C. 2732, 2733.

Nor does the fact that he bought at private sale the remaining interests in the plantation about the same time from the other co-proprietors. justify or relieve his conduct, for they could only convey to' the defendant their interests subject to the lease. By this lease they granted to .the lessees — plaintiffs herein — the right to occupy and cultivate the plantation to the extent of their interests, for another year.

II.

The question of the dissolution of the lease by the effect of the seizure and sale of a third of the leased premises, which we have discussed, bears on the liability of the defendant for the corn, hay, etc., that he converted to his use when he entered on the plantation. His contention is, as above stated, was thatthe lease being dissolved by the seizure and sale referred to, and the lessees having bound .themselves to leave on the plantation, at the expiration of the lease, the same quantity of corn, hay and seed cane that they found there, and as these did not exceed the quantity the lessees found there at the beginning of the lease, that he had a right to keep them, and could not be held responsible for their value.

The conclusion we have announced touching this question of the dissolution of the lease by reason of the seizure and sale leferred to, leaves this contentien without force. The property mentioned converted to his use by the defendant, belonged to the lessees, and their right thereto was unaffected by the seizure and sale.

In the case of Porche vs. Bodin, 28 Ann. 761, presenting a similar state of facts with the instant case, we find in the opinion rendered the following language:

It is true Article 465 of R. C. C. says that standing crops are considered as immovable and as partof the land to which they are attached; and Article 466 declares that fruits of an immovable, gathered or procured, while it is under seizure, are considered as making part thereof and inure to the benefit of the person making the seizure. But the evident meaning of these articles is, where the crops belong to the owner of the plantation, they form part of the immovable. * * * A crop raised on leased premises forms in no sense part of the immovable. It belongs to the lessee and may be sold by him, whether it be gathered or not, and may be sold by his judgment creditors.”

See also the case of Sandel vs. Douglass, 27 Ann. 629.

In this case the growing crop of a lessee was seized, with the plantation, by a mortgage creditor of the owner, and there was no record of the lease, yet the Court held the seizing creditor liable to the lessee for the full value of the crop.

m.

It is further contended that the plaintiffs possessed no valid lease, and if thejr did, that it was not properly recorded and was without effect.

The contract of lease was signed by one of the owners for himself and co-proprietors. It is claimed that the one signing had no authority from the others. The evidence satisfies us that, whether he had such authority or not, his act was fully ratified.

The contract of lease was duly deposited in the recorder’s office, and the required, indorsement to that effect was made upon it. It was recorded in the book kept by the officer for the recording of leases. Whether it should have been recorded in the book of conveyances, it is unnecessary to consider, since the deposit in the proper office, and the proper indorsement by the officer fully protected the parties. C. C. 2266, 2254, 2245; Payne vs. Pavy, 29 Ann. 116.

1AL

The liability of the defendant for corn, hay and seed cane taken l>y him being established, it remains to (letermine the value of the same. The evidence on this point is conflicting. The case was tried by a jury who, we presume, were thoroughly familiar with the subject of the value of these products, and after a close scrutiny of the evidence we are not satisfied that the estimate made by them, as shown by their verdict, should be disturbed.

Y.

There is a motion for an amendment of the judgment, by adding to the amount thereof the net profits that might have accrued from the cultivation of the place in 188.1, which the plaintiffs were prevented from working by the act of the defendant.

Granting that the net profits on a crop not 3ret begun or planted could form an element of damage in a suit of this kind, still w'e have failed, after an attentive consideration of the evidence bearing on this point, to roach any satisfactory conclusion as to the value of such profits, or even whether there would have been any profits at all. The amendment asked must, therefore, be disallowed.

This conclusion dispenses us from the consideration of the reconven - tional demand urged by the defendant.

Judgment affirmed.