text:
    No. 12,979.
    E. F. Rowson et al vs. Clara Barbe.
    Syllabus.
    1. In a petitory action plaintiff must recover upon the strength of his own title,. not upon the weakness of that of his adversary.
    2. Such an action may be defeated by showing that the title is in a third person; or that a third person has a better title than that asserted by plaintiff.
    3. By the Civil Code of 1808, as by the present Code, a donation of real estate Is-null and void unless executed before a notary and two witnesses and accepted in express terms by the donee during the lifetime of the donor.
    4. Without these formalities and essentials a donation inter vivos presented as a muniment of title fails absolutely.

      5. Where plaintiff’s case fails on the weakness and insufficiency of the showing of title made by him, and it is so adjudged by the trial judge, it was error to go further and pass judgment rejecting defendant’s pleas of prescription set up in the answer. This on the ground that the case fell before consideration of the defense began.
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Read, J.

      Fournet é Fournet and Williams & Sugar for Plaintiffs and Appellants.

      Pujo & Moss and Schwing & Moore for Defendant and Apipellee.
    Argued and submitted December 22, 1898.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is a petitory action instituted by plaintiffs, who seek to be decreed the owners of Section 21, in Township 11 South, of Range 3 West, and Section 37, in Township 11 South, of Range 4 West, containing 676 79-100 acres of land.

The land is situated in the parish of Calcasieu, on Lake Arthur. It was formerly thought to be only fit for pasturage purposes, being then wild prairie lands of little demand and scarcely any market value.

But the remarkable development of the rice culture industry in that section of the State has brought about a great change, and lands once selling as low as twelve and one-half cents an acre now command ten to twenty dollars per acre.

The land in controversy is of that character, and, naturally, the more valuable such lands become the more are the tenures of ownership by which they are held ajit to be called into question, and adverse muniments of title set up.

Defendant xffeaded the general issue, averred xwssession of the land :since 1878, under a chain of title which she sets out, invoked the prescriptions of two, three, five and ten years, and reconvened, in the event of eviction, for the value of improvements placed by her on the property.

The judgment below, while denying the prescriptions pleaded by defendant, rejected plaintiff’s demand on the weakness and insufficiency of the showing of-title made by them.

Both parties appeal — plaintiffs seeking to reverse the decree by which their demand is rejected; defendant to reverse that part of it overruling the prescriptions aforesaid.

Plaintiffs assert the following chain of title, viz.:

1. Grant from the Spanish government to Louis J. L. Brognier De Clouet, under the designation by the United States Commissioners, of Grant B., No. 89.

2. Confirmation of this grant by the United States and issuance of patent to Louis J. L. .Brognier De Clouet, or to his legal representatives, and to his or their heirs, on November 3, 1833, and recorded January 13, 1874.

3. Donation inter vivos by private instrument of writing on March 2,1813, from Louis J. L. Brognier De Clouet to Marie Louise Catiche De Clouet, dame Lastrapes, his neice and god-daughter, recorded January 13, 1874.

4. Act of sale, conveyance and transfer, without warranty, on October 2, 1890, by the heirs of Marie Louise Catiche De Clouet, deceased, and of her then deceased two sons and daughter, Alfred Lastrapes, Charles Lastrapes and ITenriette Lastrapes, widow of Alexander Landry, to plaintiffs, recorded October 0, 1896.

Defendant asserts chain of title as follows,- viz.:

1. Last will and testament of Balthazar Neville De Clouet to Dolores De Clouet et als. dated September 30, 1844.

2. Act of sale and conveyance by Dolores De Clouet et als. to Perigrine; Avandavio, on July 22, 1859, and. recorded August 16, 1859.

3. Tax sale of the property as that of Perigrine Avendano to Olairville Granger on July 3, 3872, and recorded May 6, 1874.

4. Confirmation of this tax sale by the State Auditor to Olairville Granger on August 6, 1874, and recorded October 2, 1875.

5. Act of sale and conveyance by Olairville Granger to defendant on August 31,1878, and recorded'December 14, 1881.

The heirs of Marie Louise Catiche De Clouet, dame Lastrapes, ap■,pear to have paid taxes on the property in the years 1887, 1888, 1890, 1893, and perhaps other years.

Defendant has paid taxes on the same property since her purchase -from Clairville Granger, in 1878.

In the latter part of 1891, or the early part of 1892, she took actual, •corporeal possession of the land, leasing it to various parties, and the ..same was put under fence and in cultivation. It has been since, and is now, in her actual possession.

Plaintiffs and those from whom they claim title have never been in .actual possession.

It is a principle of law so familiar as to have become trite that a plaintiff in a petitory action must recoVer upon the strength of his own title, not upon the weakness of that of his adversary. Phillips vs Flint, 3rd La. 146.

And a petitory action may be defeated by showing that the title is in a third person, or that a third person has a better title than that -asserted by plaintiff. Thomas vs. Turnley, 3 R. 207; Williams vs. Riddle, 10 R. 505; Surgi vs. Colmar, 22 La. An. 20; Cronan vs. Cochran, 27 La. An. 120.

As has been seen, one of the props of plaintiff’s asserted title is the ■act of donation made in 1813 to Marie Louise Oatiche De Clouet. "This was a private act and the signature thereto was simply “B. De ■Clouet.” Plaintiffs affirm this was Louis J. L. Brognier De Clouet. Defendant contests this, deny that it is shown by legal evidence to 'have been Brognier De Clouet, and assert it might just as well have been Balthazar De Clouet, who is shown to have been a brother of 'Brognier.

However this may be, it is not important in the view we take of the •case as presented.

The act of donation, by whomsoever executed, was not in the form prescribed by the law, and was never accepted by the donee during the lifetime of the donor.

The Civil Code of Louisiana of 1808 was in force at its date.

A donation inter vivos of real estate made while that Code was in force was null and void, as it is under the'present Code, unless executed before a Notary Public and two witnesses and accepted in express terms by the donee during the lifetime of the donor. Pack-wood vs. Dorsey, 6 R. 329.

This pretended .donation, then, as a muniment of title, fails abso■lutely. Its nullity is net merely relative; it is absolute. ' Such an act ■can be held, to have no effect whatever. So far as it is concerned matters are left in the same situation as if the donation had never been made or attempted, and, thus, it is open to the attack of any -person whatever having the slightest interest.

Scott vs. Briscoe, 37th La. An. 179.

This is not a case where it can be claimed that after the death of the -donor his heirs, either expressly or by voluntary execution of it, ratified or confirmed the donation. No express act of ratification' is -shown; no conduct of their’s is cited from which voluntary execution appears. Mere silence and inaction on their part is, in such a case as •this, neither voluntary execution, confirmation, nor ratification. The ■ case presents a different state of facts in this regard from that appearing in Ventress vs. Brown, 34th La. An. 448, and other authorities -cited by plaintiffs’ counsel.

Plaintiffs never had possession of this land at any time, and if the heirs of Brognier De Clouet had by intervention appeared in this suit .and disputed plaintiffs’ pretensions by setting up the nullity of the act of donation under which they claimed, and asserted title in themselves as heirs, direct or collateral, of their ancestor, there can be no doubt that if judgment went against defendant at all it would have been in favor of the intervenors and not in favor of plaintiffs.

If this be so, then it is clear that third persons are shown to have a better title than that on which plaintiffs base their claim, and this better title in others not suing, defendant may invoke to repel plaintiffs’ assault.

So, plaintiffs advancing to the attack on defendant’s possession as owner, find themselves repulsed and beaten back at the threshhold by the weakness of their own line. They retire discomfited, without having developed the weakness, if any, of defendant’s position. They must show, before the possessor can be put on his defense, a legal title to the premises in dispute. 3 L. 134.

In this view of the ease, it is unnecessary to consider the various objections urged against defendant’s showing of title, and equally unnecessary to review the several grounds, including prescription, urged in support of her title.

While it may be true, as plaintiffs’ counsel urge on us, upon the authority of Gravenberg vs. Savoie, 8 La. An. 499, that a plaintiff in :a petitory action is not bound to show title in himself good against the world, and that he is only required to produce title as.owner “causa idónea ad transferendum dominium” to repel the presumption of ownership resulting from mere possession, the principle does not apply in the instant case.

Defendant has not a “mere possession” of the land. Her occupancy of the same is not that of a naked possessor only. It is predicated upon acts of transfer and conveyance purporting title, followed by payment of taxes upon the property for many years, and actual, open, notorious, corporeal possession and cultivation since the beginning of 1892. Its origin was not that of a mere trespass. Jamison vs. Smith, 35th La. An. 609.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be so amended as to pass upon and decide-only the question of the sufficiency or insufficiency of the showing of title made by plaintiffs to the real estate sued for, and not upon the question of prescription raised by defendant.

It is further ordered, etc., that the judgment of the lower .court rejecting' plaintiffs’ demand because of the weakness and insufficiency of the title they present, be affirmed, with costs of both courts.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 13,046.
    John W. Holmes for Use of Minor Willis St. Clair Holmes vs. The Cromwell & Spencer Co., Limited.
    S vllabus.
    (1.) A lad, at the instance of the engineer in charge of a company’s engine, gave a helping hand to two of the company’s employees in loading eight or ten ties upon the engine to be by it taken to a break in the company’s road about a mile distant, and having done so, rode down in the engineer’s cab to the break for amusement, and from curiosity. While so riding he threw a few sticks of wood into the furnace connected with the locomotive at the request of the engineer.
    Held : These facts did not place him in the company’s employment, particularly as the engineer was without authority to employ persons under him. He was substantially a volunteer.
    (2.) A company is not responsible for injuries received by a person who holding no contractual relations with it, either as a passenger or an employe, and with no invitation from it attempts to board one of its moving engines by steps leading up to the engineer's cab, even though the injury should have been due to the defective condition of the steps.
    ON APPEAL from the Tenth Judicial District Court for the-Parish of Rapides. Hunter, J.

      John G. Blackman, Allen T. Hunter and Robert P. Hunter for Plaintiff, Appellee.

      Andrews & Hakenyos, H. H. "White and D. B, H. Ghaffe for Defendant, Appellant.
    Argued and submitted February 9, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff, a minor, represented by his father, obtained judgment in the District Court of Rapides for the sum of five thousand dollars, for personal injuries received by him in attempting to enter the engineer’s cab of an engine operated by defendant’s employees. The accident was alleged to have occurred by reason-of a defective step leading up to 'the cab.

The defendants appealed and the plaintiff in the Supreme Oourt applied for an increase of damages.

Plaintiff’s cause of action is set out in two petitions. In the first' he alleged that on or about the 19th day of February, 1898, said minor was working in the employ of the defendant company as a log: washer, or washing logs with hose, and while in such employment on the day mentioned, he got on defendant’s tram railway as employees were allowed and instructed to do; that he had gone out to assist in the loading of ties; that ho was returning from such employment; had gotten off and was about to remount said engine when his foot slipped' on account of absence of properly adjusted appliances and the poorly constructed, crooked and broken step; that it was contributory negligence on defendant’s part, and wanton and harmful disregard for the safety of their employees.

That the minor was in no fault whatever; that from such culpable negligence on the part of defendant company in not having the step properly adjusted, the minor’s left foot slipped into the cogs and was crushed and torn off; the leaders of the leg were cut in divers .places; the flesh torn above'the knee exposing the bone. That in consequence amputation of the foot became necessary. That all of this could have been prevented had it not been for- the gross negligence of the company. That the minor by reason of said facts, had suffered damages to an amount of ten thousand five hundred dollars. That the minor -was about sixteen years of age; that he was not a skilled workman, but -was receiving seventy-five cents a day for his labor. That by the loss ,of his foot he had become totally incapacitated for labor by which he gained his living and assisted in supporting his family.

In the second petition it was alleged that the minor being employed . as a log washer it was his added duty also to do any other work that ■ might be assigned him; that in addition to being on the engine and the . allegation thereof, he was ordered by the engineer of the tram road of , -defendant to “fire” upon the said engine,the fireman being absent;that -.the said engineer was considered a superior and had a right to command; that the child obeyed and in the discharge of his newly assigned duty he was injured from the defective machinery. Defendant filed an answer under reservation of a peremptory exception of no cause of action. The latter was predicated upon the allegation that the demand for damages was based substantially upon the averment that “plaintiff was in the act of boarding a running locomotive” when the injury was received, without the same being necessary in the discharge of any duty in his employment, or in obedience to the order of any' officer or superior of defendant company. That such act was the immediate and proximate cause of the injury, and was contributory negligence, so gross as to bar any right of recovery in plaintiff.

In their answer defendants pleaded, first, the general issue. Further •answering, they averred that plaintiff wantonly, recklessly and volun-tarily put himself in a position of danger by boarding a moving locomotive, when the same was not necessary in the discharge of any duty, •or in response to the order of any officer, or superior of the company, and this reckless and wanton conduct was the immediate and proximate cause of the injury be received. That the plaintiff had no right nor business on said locomotive, or even in its immediate proximity. That he was there without the knowledge, consent or procurement of -respondents, and against their well known, expressed and published Orders. That respondents had positively forbidden all persons, not .even excepting- its employees, to board or ride on the locomotive or log train drawn by it, and this rule was published by posting in the cab •of the locomotive and other public places about the premises. That all of its appliances for the running and handling of its train- and for the protection of those employed thereon were complete and in- good order. They specially averred that in this connection they owed no duty to the plaintiff, except not to wantonly harm him as he was not employed on the locomotive, but was there for his own pleasure, and at his own peril. *

Defendants denied that plaintiff was employed either in loading ties, or in firing on the engine, or if so engaged, it was without their knowledge or consent, or without the knowledge or consent or procurement of any of their employees having authority to so employ him.

They denied that the minor was in their employ on the day the accident happened. They averred that at other times and on other days when he was employed by them, his duty was to wash logs as they were taken from the skidway and carried to the mill, and that his post of duty under such employment wás at a point some distance from the locomotive or track on which it ran, and that he was never employed by them, or any one having their authority to perform any other service, and that in the performance of said service he was in no danger whatever from the locomotive.

Opinion.

We have given the testimony in this case our most careful consideration, and have reached the conclusion that there was no basis whatever for a judgment in favor of the plaintiffs against the defendants. The defendants owned a sawmill in the parish of Rapides and were engaged in the business of sawing of logs, which were carried to their mill by means of a locomotive and cars operated by their employees upon a tramway which they had constructed. The business seems to have been an extensive one, requiring for its proper working the creation of distinct departments, at the head of which were foremen or managers, with separate and independent duties and obligations. One of these departments, known as the “milling department,” was in charge of a Mr. Maynard; the other known as the “woods” or “logging” department, was under the control of a Mr. Evans. Each head of department had the exclusive right of employing workmen for his. own department and the duties of the men so employed were confined, to the work called for therein. The selection and control of the mem connected with th*e operation of the railway was entrusted to Evans. One of the locomotives upon the tramway had for its engineer a man by the name of Patterson, and for its fireman, one Hardy Iler. There-was strictly no necessity for a fireman upon the locomotive, as the-character of the work done and the distances run was such as to enable the engineer not only to act as such, but to perform the duty of a; fireman, and for some considerable time the engineer had, in fact,, performed the duties of both.

The evidence shows there were duplicate steps leading up to the-engine on the right and left sides of this particular locomotive. That, there were cogwheels under and in front of the steps, upon the right side of the locomotive, but none under and in front of those upon the-left. That the engineer’s usual position was upon the right of the engine cab, and that of the fireman was upon the left; that each habitually entered the cab by the steps on the side next to the position he was called upon to occupy. It is quite likely that on the 19th of' February, 1898, the steps upon the right of the locomotive were not in as good condition, nor as well protected for purposes of safety, as they should have been. What the condition of the steps on the left was upon that day was not made to appear. On the 19th of February, 1898, defendant’s saw mill, for some reason, was not in operation, but the trains were out in the woods engaged in the work of bringing in logs. "Shortly after twelve o’clock of that day, Patterson’s engine,, with cars loaded with logs attached thereto, was making its way to the mill, when it was discovered at a distance of about a mile therefrom tnat the ties upon the tramway were in such a condition as to make it necessary to stop the cars and put in new rails before proceeding further. It was possible, however, for the locomotive to pass over. In order to remedy the trouble the locomotive was detached from the cars- and sent forward to the mill, Patterson receiving- instructions to have-some ties which were at the mill loaded upon the engine and tender and to return with them to the break in the road. Hardy Her, the fireman, was upon the locomotive at that time — he remained upon it sometime after it reached the mill, and assisted in placing the new ties upon the engine. When the engine reached the mill, Patterson found" there several men and a number of lads (among them the plaintiff) loitering around the mill for want of employment. The plaintiff had been in defendant’s service for some time, employed as a log washer, but that duty not being continuous he was only engaged from day to day as occasion required. On that particular day the plaintiff was not ■engaged.

When the time came for loading up the engine, Patterson called upon several men to assist in doing so, and according to the testimony of the plaintiff, he called upon him and the other boys to give a helping hand, which they did. When the engine started back, these boys got upon it, and went down to the break; the plaintiff and a boy named Graham being permitted to enter the cab. The fireman, Iler, did not go down on the engine to the break, but remained at the mill. Plaintiff testified that on the way down, Patterson called upon him to “fire up,” and that he filled up the furnace with wood; that Patterson had told him before getting on the engine that he wanted some one to fire up. The engine remained at the break some twenty or thirty minutes while the ties were being unloaded and then returned to the mill. In this interval the boys had gone down to a creek in the neighborhood, but they were recalled by Patterson’s calling out to them as he started his engine on its return, “come on boys, if you want to go back.” Before they could reach the engine it had gotten under way and they climbed upon the back end of the tender, whitfh the testimony shows was a place of perfect safety. Just before the engine reached the mill, and while it was “slowing up,” plaintiff got down from the left of the rear of the tender, ran over to and along its right side up to and opposite the steps leading to the engineer’s cab, and there attempted to get into the cab. As he placed his foot upon the step it slipped off and got entangled in some cog wheels which were under and in front of the steps. The engine was at once stopped and the boy extricated, but his foot was crushed and his leg badly cut. He was taken to his home where the front part of his foot was amputated. He remained in bed several months necessarily suffering great pain. His injuries are permanent, and it is shown that" his ability to perform work, such as his station in life would call for, has been greatly impaired.

The jury evidently permitted their sympathy to get the better of their judgment. Well directed and judiciously controlled sympathy is commendable at all times, but sympathy which seeks to remedy a distressing accident, by casting loss and responsibility upon parties who are in no wise blamable on account of it, is not permitted in a court of justice. This accident by which a young lad has been maimed for life is certainly much to be deplored, but defendants in. no way contributed to it.

Patterson was not authorized to employ the plaintiff in any ca-^pacity, and his permission to him to enter the enginer’s cab, when the engine was going down to the break, was in violation of positive prohibitory orders. The mere call upon the boys who were loitering around the mill to give a helping hand in putting the ties upon the-engine can in no sense, be called an employment of them by the company. Their responding to such a call was purely a voluntary and gratuitous act such as any one standing in the neighborhood of the-engine would have responded to, not as employment, but as a favor.

' The nature and character of what occurred is very expressively explained by the statement made by one of these boys on the stand, “that they were helping' just to be helping.”

We see nothing in the record which would justify us in reaching the conclusion thax Patterson ever thought of employing plaintiff, or that plaintiff ever thought of being employed as a “fireman” upon the engine. Had not this accident occurred we have no idea that such a claim would have ever been put forward. Woodward, one of the men who went down to the break on the engine, says that he heard Patterson say to the plaintiff, while the latter was-in the cab: “Willis, tnrow some wood in the furnace,” but this is nothing more than a request which might well have been addressed to Woodward himself. Everything negatives the idea that plaintiff could have been under any employment as a fireman even had Patterson had the authority (which he did not have) to employ him as such. The bovs evidently went down on the engine as an amusement or from curiosity to see the situation at the break. The fireman Her testified that he did not go back on the engine to the break for the reason that knowing where it was going and how long it would be away ‘before returning he had “fired up” before the engine left the mill, putting on steam enough to last until it would return, and the testimony shows there was no necessity for any further “firing up.” Assuming,, however, that Patterson ever intended to employ plaintiff as a fireman, and that plaintiff understood that he was so employed, the employment would not have extended beyond the outgoing' trip, and the relations of the parties on that score terminated at the break'. If Patterson had imagined that plaintiff had been employed as a fireman and that his services as such were needed for the return trip, he certainly would not have started hack to the mill without seeing that he was-aboard. His calling out to the boys, as he was leaving, “come on, boys, if you want to go back,” clearly indicates what the actual situation was. Patterson did not call upon the plaintiff on-the return trip-to go into the cab, nor did the latter attempt to go into it until the engine was nearing the end of the trip and within a few yards of the-mill, and when it was perfectly apparent that it would reach the round house, as in fact it did reach the round house, without any further “firing up.” We do not know why the plaintiff left his place on the rear of the tender and attempted to go into the cab while the engine-was in motion. The reason assigned by him that he thought it was-necessary to fire up cannot be received as the correct one, in view of the situation of the engine at that time. He was not called upon to-go into the cab; there was no reason for his doing so; there was no reason for his supposing it was necessary for him to have done so. He left a place of safety and without any necessity, and in the discharge of no duty, attempted to broad a moving train engine. The defendant company is not responsible for the consequences of that act. There were no contractual relations of any kind at that time between the-parties. Under the evidence we have no alternative but to set aside-the verdict of the jury and the judgment of the court based thereon, and to reject plaintiff’s demand.

For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury be set aside; that the judgment thereon rendered be and the same is hereby annulled, avoided and reveresd and' plaintiff’s demand be rejected with costs in both courts.


text:
    No. 13,013.
    J. H. Fullilove et als. vs. Police Jury, Bossier Parish, et al.
    Syllabus.
    1. Xhe taxing power referred to in Article 202 of the Constitution of 1879, as to-be exercised by parishes and mnnicipal corporations under legislative authority, but solely for “parish” and .“municipal” purposes has no reference" i to the special taxes authorized to be levied in aid of works of public imjprovement and railway enterprises under the provisions of Art. 242 of the -Constitution. Taxes of that character were made the subject of separate ■consideration by the framers of the Constitution, They were affirmatively .taken beyond and withdrawn from within the scope of legislative, parish, -corporate action by Article 242 of the Constitution, and made to be gov-> ■erned and dealt with as independently provided for therein.
    ■2. A tax consented to under the provisions of Art. 242 of the Constitution by the owners of taxable property, is not a “parish” tax, and does not bind the parish as such, but is levied upon the theory of local and special benefits undet the actual or presumed direct, individual consent of the parties concerned. The taxes collected, though in the custody of and disbursed by the parish authorities, are not parish monies.
    3. The parish authorities in ordering the elections provided for in Acts No. 35 of 1886 and No. 159 of 1896 — announcing the results thereof, and levying taxes consented to at such elections, do not act as representatives of the respective parishes. They are selected merely as ministerial, public agencies resorted to for the purpose of ascertaining and making effective the wili of the people of particular localities, in respect to special taxes of the character referred to in Art. 242 of the Constitution. When taxes are levied under such elections, the taxing power is exercised by the owners of the property to be taxed under the constitutional authority of Art. 242 of the Constitution, and not by the parishes, or under legislative authority.
    A tax levied by the parochial authorities of a parish upon all the taxable property of one of the wards of the parish, upon the petition of property tax payers of the ward as provided for in Act No. 153 of 1894, is legal and constitutional..
    Acts No. 35 of 1896 and No. 103 of 1894 are not unconstitutional as not fully and fairly expressing their objects in their title. The former act clearly expresses that it is an enforcement of the provisions of Art. 242 of the Constitution of 1879, and the second act amendatory of the first merely widens the .extent of the enforcement.
    ON APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      Wise & Herndon and Solomon Wolff for Plaintiffs, Appellees.

      Leonard <& Randolph arid John D. Wilkinson for Defendant, Railway, Appellant.

      A- J. Murff for Defendant, Parish, Appellant.
    Argued and submitted January 28, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiffs represented in a petition filed by .them in the District Court for Bossier parish, in November, 1898, •that they were property tax-payers of Ward One of said parish.

That the police jury of Bossier parish, at its session of the 11th of August, 1897, ordered a special election to he held in said Ward One, to take the sense of the property tax-payers of said ward, in regard .to voting a special tax of five mills on the dollar, of all the taxable property in said ward, and fixing a term of ten years, beginning with .the first day of January, 1898, in aid of the Shreveport and Bed Biver Valley Bailroad Company;

That the police jury acted in said matter by virtue of the provisions of Act No. 35 of 1886, as amended by Act No. 153 of 1894, and -said police jury acted without any valid authority in law, and all of ■•their acts in reference to said special tax were unconstitutional, null -■and void, and without effect. In view of the premises, alleging that they had property in said ward, subject to said tax; that they had a • common interest in having the said tax declared unconstitutional, and ■that their interest in the same, exceeded two thousand dollars; they ■prayed that the parish of Bossier, and the Shreveport & Bed Biver 'Valley Bailroad Company be cited, and that Act No 153 of 1894, .amending Act No. 35 of 1886, be declared'unconstitutional, null and ■void; that all acts of the police jury, under and by virtue of it, in so far as it levied a tax against the property of petitioners, be decreed to 'be null and void and of no effect.

The police jury answered, pleading first a general denial; further' ••answering it averred, that the election was ordered, and was held and carried in favor of said tax, and that the tax of five mills was levied over all the property of said Ward No. 1, in accordance with the will -of the people and according to law, for ten years, in favor of the 'Shreveport and Bed Biver Valley Bailroad Company.

It averred that the acts of the legislature mentioned in plaintiffs’ •petition were constitutional and all of its own acts legal.

It averred, that it was only a nominal party to the suit, and prayed -to be dismissed with costs.

The railroad company answered, pleading first the general issue. It pleaded the prescription of three months against the plaintiffs, and averred that they were estopped from bringing the suit as they had 'participated in the election.

It averred, that during the year 1397, the police jury of Bossier, pursuant to law, and after more than one-third of the property taxpayers of Ward One of said parish had petitioned therefor, and after a legal election, participated in by the property tax-payers of said ward,, at which a majority in number and amount voted in favor thereof, the police jury levied, according to law, a tax on said property, in Ward No. 1, in aid of respondent, of five mills on the dollar for ten years,, beginning with 1898.

That in consideration of said tax, or subsidy, respondent had built,, completed, and was then operating its said railroad through said Ward One, and that the tax collector of Bossier parish was then collecting said tax to which respondent had a vested right. It averred that the acts of the legislature referred to were legal and constitutional, and were full warrant for the acts of the police jury, and that all the police jury’s acts were legal.

Before the case was tried, the parties to the suit signed an agreement and statement of facts, by which it was admitted that the plaintiffs voted against the tax, as alleged — that their joint interest exceeded two thousand dollars; that the railroad had been built as alleged in the' company’s answer; that all the proceedings of the police jury, and the petition of property holders, and vote and proclamation, and levy of tax of five mills for ten years were in due form and regular. That the only contest between plaintiffs and defendants was the constitutionality and legality vel non of Act No. 35 of 1886 of the General Assembly of Louisiana, as amended by Act No. 153 of 1894,, and the constitutionality vel non of said legislation, and the legal questions raised by pleas. Citation in the case was served on the police jury, on November 11th, 1898, and upon the railway company on November 14, 1898

The court rendered judgment in favor of plaintiffs, and against defendants, decreeing that Act No. 153 of 1894, and the act of the police jury of Bossier thereunder, in so far as it levied a tax against the property of the petitioner were unconstitutional, null and void, and of no effect.

Defendants appealed.

Act No.. 35 of 1886, referred to in the pleadings, is entitled: “Anací to prescribe the manner in which special elections shall .be held in the parishes, cities and incorporated towns of this State, for the purpose of levying special taxes in aid of railway enterprises, and providing for their enforcement and collection, and to carry into effect Art. 242 of the Constitution of 1879.”

Act No. 153 of 1894, to which reference is made in the pleadings, is-entitled: .

“An act to amend and re-enact Sections 1, 4 and 6 of Act No. 35, approved June 28th, 1886, entitled an Act to prescribe the manner in which special elections shall be held in the parishes, cities and incorporated towns of this State, for the purpose of levying special taexs in aid of railway enterprises, and providing for their enforcement and collection, and to carry into effect Article 242 of the Constitution of T879.”

The body of the act reads as follows:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That Section 1 of Act 35, approved June 28th, 1886, be amended, and re-enacted, to read as follows:

“See. 1. That, whenever one-third of the property tax-payers of any parish, parish ward, city or incorporated town, in this State shall petition the police jury of said parish or the municipal authorities of such city or incorporated town, to levy a special tax in aid of any railway company or corporation organized under the laws of this State, the said police jury, municipal or town authorities, shall order a special election for that purpose, and submit to the property taxpayers of such parish, parish ward, city or incorporated town, the rate of taxation and the purpose for which it is intended; provided, that said election be held under the general election laws of this State, at that time in force and at the polling places at which the last preceding general election was held, and not sooner than thirty days after the official publication of the. petition and the ordinance requiring the election; both of which shall be made in the same manner as provided by law for judicial advertisements.

“Sec. 2. Be it further enacted, etc.. That. Section 4 of Act 35, approved June 28th, 1886, be amended and re-enaeted, to read p.3 follows:

“Section 4. That if a majority in number and in value of the property tax-payers of such parish, parish ward, city or incorporated town shall vote in favor of such levy of said special tax, then the police jury, for and on behalf of such parish or ward thereof, or the municipal authorities, for and on behalf of such city, or incorporated town, shall immediately pass an ordinance levying such tax for such time, as may have been specified in the petition, and shall designate the year in which such taxes shall be first levied and collected.

“Section 5. Be it further enacted, etc., That Section 6 of Act 33, approved Dune 28th, 1886, be amended and re-enacted to read as follows:

“Section 6. That the police jury of any parish or the municipal authorities of any city or incorporated town, shall, when the vote is in favor of the levy of such taxes, levy and collect annually in addition to other taxes, a tax upon all taxable property, within such parish, parish ward, city, or incorporated town, sufficient to pay the amount specified to be paid in such petition; and such police jury and municipal authorities shall have the same power to enforce and collect any special tax that may be authorized by such election, as is, or may be conferred by law upon them for the collection of other taxes; which taxes so collected shall from time to time, as the same are collected, be paid to the railway company or corporation named in such petition, or to any person, partnership, or other company or corporation to which the same may have been assigned.”

Opinion.

A comparison of Act No. 35 of 1886, with Act No. 153 of 1894, will show, that provision is made in the latter for the submission by the parochial authorities, under certain circumstances, to the property taxpayers of wards in the different parishes through elections to be ordered by police juries, whether or not a special tax should be levied ■on the taxable property in said wards in aid of railway enterprises, for the canvassing and announcement by them of the result of said election, and for the levying by them (in the 'event that said tax should ‘have been consented to) of the tax voted, for whereas, Act No. 35 of 1886 provided simply for such elections being held in parishes, cities and incorporated towns, and did not include wards.

The plaintiffs in this suit, attack the proceedings of the police jury, •of the parish of Bossier, as being illegal and unconstitutional from beginning to end. Assuming that the source of the power of the parish of Bossier to act in this matter rests upon the Act of 1894, they contend the legislature of the State was without authority itself to confer such a power upon the parochial authorities. They maintain that “statute” authority to parishes to levy taxes is limited by Article 202 of the constitution to taxation for “parish” purposes, and they assert, that a tax levied in aid of a railroad enterprise is not a tax for a. “parish purpose.”

Their position is, that the authority of the parochial authorities in. respect to a tax to be levied in aid of a railroad, rests exclusively upon, the provisions of Article 242 of the Oonstitution itself, and that that article conferred power and authority upon the police juries to deal with parishes in their entirety as single units, and not with wards-which are subordinate local subdivisions of parishes.

Article 202 of the Oonstitution of 1879 declares, that “the taxing-power may be exercised by the General Assembly for State purposes and by parishes and municipal corporations under authority granted, to them by the General Assembly for parish and municipal purposes and Article 209, that “no parish or municipal tax for all purposes-whatsoever, shall exceed ten mills on the dollar of valuation,, provided,, that for the purpose of erecting and constructing public buildings,, bridges and works of public improvement in parishes and municipalities, the rate of taxation herein limited may be increased, when the rate of such increase, and the purpose for which it was intended shall have been submitted to a vote of the property tax-payers of such parish, or municipality entitled to a vote under the election laws of the State, and a majority cf same voting at such election shall have voted: thereon.”

These two articles of the Oonstitution, are found in that instrument,, under the heading of “Revenue and Taxation.”

Article 242 of the Oonstitution of 1879 as amended, reads as follows:

“The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of a majority of the tax-payers in. number and amount, voting at the election to levy «special taxes in aid' of public improvements or railway enterprises, provided such tax shall' not exceed the rate of five mills per annum nor extend for a longer-period than ten years.”

This article is found in the Constitution, under the heading of' “Corporations and Corporate Rights.”

It may be conceded, that the right of the General Assembly to-authorize “Parishes” and “Municipal Corporations” to exercise the-“taxing power,” and the right of the parishes and municipal corporations to exercise such power by virtue of legislative grant, is limited' to taxation for “parish and municipal purposes,” and that any attempt to pass' beyond the limited object declared, would' be ultra vires and unconstitutional, but the question is, do parochial authorities act as representatives of their respective “parishes” when under legislative provisions they submit to a vote of'the property tax-payers either of the entire parish, or of a defined subdivision thereof, the question as ,t¿ whether they shall b'e specially taxed in aid of a railway enterprise?

In' such action and that which may incidentally and consequentially flow out of it “corporate” action of the parish as a political body and is a tax consented to at such an election a “parish tax ?” An examination of the language of Article 202 will show, that, the taxation therein referred to is taxation by the “parishes.” The “parochial authorities” .are not mentioned. It is only in so far as they are called on to act as representatives of the parishes, in' respect to matters binding the corporation and as to which they may, in one sense, be said to be the parish itself, that they become connected with the subject matter .therein referred to.

Article 242 of the Constitution, on the other hand, does not mention the “parishes” themselves, but does mention the “parochial authorities” and constitutes them public ministerial agencies “to levy special taxes in aid of public improvements or railway enterprises,” when consent to such taxes within the limitations fixed has been given as directed-by that article by the owners of the property to be subjected to the tax. The designation of the parochial authorities as the public . agency resorted to for the purpose of ascertaining and making effective the will of ,the people of a particular locality, in respect to special taxes of the character referred to, simply is a matter of convenience.

A special person, or officer, or board might have been charged with • the performance of these duties.

The -purpose of such taxes is not in aid of matters falling generally ■ and properly under the control of and within the scope of the legislative action of the parochial authorities as representing parishes, but partially withdrawn from such control by force of affirmative limitations, (subject to be reinstated to a certain extent by a vote of the people of the parish), but, it is in aid of matters outside of, and never ' brought at all within the range of legislative corporate action.

A tax consented to under the provisions of Article 242 of the Constitution by the owners of taxable property, is not a “parish” tax, and . does not bind the parish as such, but is levied upon the theory of local .-and special benefits-received under the actual or presumed direct, individual consent of the parties concerned. The taxes collected, though in the custody of, and disbursed by, the parish authorities, are not parish monies.

.We are of the opinion, that the taxing power referred to in Article 242 of the Constitution as to be exercised by “parishes” and “municipal corporations” under legislative authority, but solely for “parish” and “municipal purposes,” has no reference to the special faxes authorized to be levied in aid of works of public improvement and railway enterprises under the provisions of Article 242 of the Consti.tution. That taxes of that character are made the subject of separate •consideration by the framers of the Constitution. That they are affirmatively taken beyond and withdrawn from within the scope of legislative parish corporate action by Article 242 of the Constitution, nnd are made to be governed and dealt with as independently provided for therein.

, Plaintiffs argue, that Article 242 of the Constitution per se goes no further in the way of granting authority to parochial authorities to levy taxes in aid of railway enterprises, under a vote of the people, •than to authorize them to do so upon a vote of the owners of property throughout the entire' parish consenting to a tax upon all the taxable property in the parish. That it would be essentially necessary for a legislative act supplementary to Article 242 of the Constitution to be •enacted to authorize “ward” taxation, and bring it under the duties •and control of the parish authorities. That this legislative act would, •therefore, be in reality, the' source of the power of such taxation, and of the duty of the parochial authorities in regard thereto, and that this added power it was beyond the legislature to give.

We do not give to Article 242 of the Constitution the limited scope that plaintiffs contend for.' The article fixes a limit to the rate of taxation, fixes the length of time during which the tax should be levied, and the character and the number of the voters who shall determine whether the tax shall be levied or not, but it is significantly •silent as to the extent of the territory in which the property is to be taxed, and it nowhere declares that the property tax-holders who shall vote at the special elections authorized to be held, shall be the property tax-owners of the entire parish. The wording of the article on this latter point, as well as to the territory in which the tax is to be levied, seems to have been designedly left uncertain to be fixed by the power ■either given to or left with the General Assembly, to determine the “certain circumstances” under which those special elections should be held, and regulate and define the duty cast upon the parochial authorities of ordering the same, announcing their result, and levying the special taxes voted for.

There was not an absence of power in the people in the wards in the different parishes, prior to the passage of Act No. 153 of 1894, to have the property therein taxed in the aid of railway enterprises,, under elections authorized to be held by Article 242 of the Constitution, but the provisions of that article were not in all respects self-operative.1 The people of the different wards had prior to the enactment of the Act of 1894, the same powers which they have now, but .they were latent requiring legislative action to enable them to he called! into action. The legislature was not called upon to grant powers, but. to direct and regulate the “certain circumstances” under which they should be called into action, the manner of their exercise, the time, place and instrumentalities necessary for holding the elections-contemplated. Plaintiffs are in error in referring to Act 153 of 1894 as the source of a power of ward taxation to be exercised either by the “’parishes” or by “the parochial authorities,” for special taxes in aid of railway enterprises. That statute is simply a general statute making effective powers already granted or reserved to the people of different localities, and imposing duties upon parochial authorities under Article 242 of the Constitution. (State ex rel Ferguson vs. Caffery, 49th An. 1748.) The “taxing power” itself is exercised by the owners of the property to be taxed, and neither by the “parochial authorities,”' nor by the “parishes.”

When this question was presented to us, we were considerably impressed at first by difficulties and complications which suggested themselves to us as likely to arise in the enforcement of Article 242 of the Constitution, in the event the property owners of a particular ward of a parish should have exercised the right of taxing their property to the full permitted limit of five mills, and the people of the entire parish, or of the remaining wards should thereafter seek to have other special' taxes levied under the same article. Reflection recalled to us, that while consideration of the difficulties which might arise in the enforcement of a law might be proper in attempting to reach conclusions-as to the intent of the law maker, it would not be so for the purpose of testing the constitutionality of the law itself. That consideration of the difficulties which may be encountered in the enforcement of a law under a certain construction of its provisions does not always justify a conclusion adverse to the legislature having had an intention in enacting it, which would lead to such results, is illustrated by the existing situation in respect to the very matter we are now discussing.

The convention of 1898, with the evident intention of placing this matter beyond the pale of controversy, intentionally inserted in Article 270 of the Constitution of that year, (the article which replaced Article 242 of the Constitution of 1879),the word “wards,” leaving untouched a limit of five mills as the extent of the power of taxation. It has thus deliberately placed matters in a situation from which the difficulties and complications to which we have alluded must, inevitably, arise, and be forced upon us for decision.

Besides this, instances are not wanting where municipal corporations with limited powers of general taxation have been sustained and justified in independently levying special taxes in-particular localities, by reason of special benefits under statutes authorizing them to do so upon the petition of a specified number or proportion of the inhabitants of these localities.

It is contended that Act No. 35 of 1886 is unconstitutional, in not complying in its title with Article 29 of the Constitution of 1879, by expressing fully and fairly the object of the act. The constitutionality of the original act was not contested in the court below. Plaintiffs questioned the constitutionality of that act as amended; in other words, the constitutionality of the amending act. Strictly speaking, we would be called on to consider only the questions raised by plaintiffs’ pleadings. Being of the opinion, however, that Act No. 35 of 1886 is constitutional, we have no objection to so declaring. That act was clearly in enforcement of, and to make operative Article 242 of the Constitution of 1879. Act No. 153 of 1894, merely widens-the range of this enforcement. Under the view we have taken of the original act, and of the article of the Constitution itself, the attack upon the amending act is not welUfounded.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and plaintiffs* demand be and the same is hereby rejected at their cost in both courts.


author: Watkins, J.

text:
    No. 12,991.
    J. M. Gann vs. I. N. Varnado.
    Syllabus.
    Two country merchants engaged In business in the same vicinity, having both furnished plantation supplies to a customer who made an insufficiency o£ cotton to pay their accounts, and one of them, having obtained possession thereof by purchase, in an honest competition, was caused to be arrested by the other on a charge of robbery, and to be incarcerated in jail, and there detained for several days, being fully aware of all the circumstances. I-XnLD: That the proceeding was taken without probable cause, and with malice inferable from the act, and the affiant is liable in damages to tne party thus arrested, as having been guilty of a malicious prosecution.
    ON APPEAL from the Sixteenth Judicial District Oourt for the Parish of Washington. Reid, J.

      Clay Elliott for Plaintiff and Appellant.
    P. B. Garter and O. P. AmacJcer for Defendant and Appellee.
    Submitted on briefs January 11, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused February 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for a malicious prosecution, founded on the following state of facts as related in the plaintiff’s petition — plaintiff’s claim being for ten thousand dollars.

That on or about September 24th, 1895, Varnado made an affidavit before the Justice of the Peace of Washington parish, wherein both parties resided, charging petitioner with robbery, by maliciously and forcibly taking and carrying away one bale of cotton, which he, Varnado, pretended to belong to him; and he caúsed a warrant to issue thereunder for his arrest, and whereunder he was arrested, and carried to the parish jail, where he was kept in custody by the sheriff, until September 28th, 1895, when he was released on bond of $500.00 for Ms .appearance in court to answer said charge.

That at the next jury term of the court, a grand jury was regularly impanelled, and said charge against petitioner was investigated by .them, and they failed to find a true bill, whereupon, he was discharged from his bond, by order of the court; and the prosecution against him was abandoned by Yarnado.

Petitioner shows, that he has a family dependent upon him for support and protection; that he has, also, been an honest and upright citizen, and has deservedly attained the good opinion, esteem and respect ■of Ms neighbors in the community in which he lives, and of good citizens of the parish and State, and a reputation among his said neighbors as an upright citizen and 'business man; all of which has been .ruined by Ms prosecution on the charge of robbery, and incarceration in jail therefor.

Plaintiff avers, that he was not guilty of the charge made against him; that the said affidavit is and was false and untrue, and inspired and made by the said Yarnado by malice, and without probable cause, and with no object in view other than to injure the good name, social and business standing and reputation of the petitioner, and humiliate and lower him in the estimation of Ms neighbors, and other citizens .of the State.

He avers, that he was arrested at his store in the presence of his •clerks and customers, from thence he was-taken to jail by the sheriff, .and deprived of his liberty for three days.

He further avers, that at the term of court following the making •of these charges, he was forced to leave his family and business, and remain at court more than a week in order to comply with the, law, and meet this charge.

That these proceedings were very mortifying and humiliating to petitioner, and have resulted in great damage, annoyance and injury to Mm in his business, and for all of which the defendant is responsible in damages.

That defendant is a wealthy man, and a prosperous merchant, and resides in the immediate vicinity of petitioner; and that he has sustained at defendant’s hands, damages in the sum of ten thousand dollars, which are itemized as follows, to-wit:

"Fee paid to attorney for legal services in drawing up application for bail..........................................$ 20 00

Loss of time and expense while under arrest............ 50 00-

Loss of time and expense attending court................ 300 00-

Injury-to business caused by these proceedings.......... 2,000 00-

For mortification and humiliation as suffered and endured, and for the injury to, and loss of his good name, social standing and character as above said.................. 7,880 00-

Aggregating in all...................................$10,000 00-

His prayer conforms to the foregoing averments.

The following is the purport of the defendant’s answer, viz.:

That he denies each and every allegation in the plaintiff’s petition,, except what is especially admitted. Defendant admits that he made an affidavit before W. A. Burris, justice of the peace, wherein he, from and upon information received, charged plaintiff with robbery of a certain bale of cotton, from the custody of one Walker, said cotton being the imoperty of I. N. Varnado & Son. That a warrant was issued by said justice, and the plaintiff was thereunder nominally arrested, but, respondent avers, that in making said affidavit, he had probable cause and reasonable grounds for believing the plaintiff guilty as charged.

He especially denies that he was actuated by malice, and avers, that he acted under the instruction and advice of an attorney-at-law, and of the justice of the peace, in making the affidavit. That plaintiff admitted taking the cotton branded in defendant’s firm name, and declared to a deputy sheriff that he had carried the cotton out of the State; that in a civil action, involving the ownership of said cotton, entitled I. N. Varnado & Son vs. J. M. Gann, the plaintiff was decreed to be the owner of said cotton.

He further avers, that while under arrest, the plaintiff Gann, was not subjected to any humiliation, annoyance or harassment, but, on the contrary, was allowed the liberty of the town, and was treated with every consideration.

He further denies that the character, reputation or credit of plaintiff has been in any way injured by the action of this respondent, and avers that plaintiff’s demand is unjust, unreasonable,- and .without warrant or justification, either in law or equity; and he prays that the same may be rejected.

On the issues thus joined, a trial was had before a jury, who ren•dered a verdict in favor of the plaintiff, for the sum of five hundred dollars.

Upon the defendant’s suggesting that the verdict of the jury was contrary to law and evidence, the judge a quo set the same aside, and granted a new trial. Upon the second trial, the cause was submitted upon the same testimony, with the exception of the solitary statement which is made by P. B. Carter, one of the attorneys for defendant, who was introduced as a witness for the plaintiff, to the effect: That he was present at the court during the progress of the first trial, but obtained permission of the judge ,to be absent from the court one day on which this ease was on trial, on account of sickness in his family; but that he was present during the remainder of the week while the trial was in progress.

That, at the subsequent term of court, plaintiff’s counsel asked permission to withdraw his prayer for trial by jury, and leave granted to have the ease tried before the court, which application was refused by the judge.

That, subsequently, the ease cams on for 1rial, and same resulted in a verdict in favor of the defendant, rejecting the claims of the plaintiff; and from that verdict, and the judgment thereon based, the latter prosecutes this appeal.

The following is the purport of the testimony which was adduced on the trial, viz.:

The first witness plaintiff introduced was the justice of the peace before whom the defendant, Varnado, made the affidavit on the 24th of September, 1895, charging the plaintiff, Gann, with the crime of robbery in taking from Walker’s gin a bale of cotton he claimed as his; and he gave full and complete details of said transaction- — stating that he subsequently sent all the papers before the next grand jury for investigation.

Next in order was the deputy sheriff ivho arrested Gann under a warrant for the crime of robbery, and he gave the particulars of his arrest, incarceration in jail, and detention therein for three or four -days.

Then the clerk of the court was introduced, and testified that the affidavit Varnado made, and the bond which Gann had given, were turned over to the Grand Jury; and that they found’no true bill, and that Gann’s bond was subsequently cancelled. ' •

The statement of Gann, the plaintiff, was, that he has resided in this State for three years, and had therefore resided in Poplarville, Mississippi, and had been engaged in merchandise there, and at Cedar Grove, in Louisiana, for about fifteen years; and that he had, during his residence in Louisiana, been engaged in merchandise at Shady Grove.

That during the last three years Varnado has also been engaged in merchandise about two miles distant from Shady Grove, and was well known to him.

He relates the transactions which led up to his arrest and false imprisonment, in substance as follows, viz.:

That about the 19th of September, 1895, J. R. Rimes came to his store and sold him a bale of cotton, and in the evening late, he sent his wagon to Walker’s gin and had it hauled to his house. That he accompanied the wagon, and so did Rimes; and it was put on his wagon by Rimes and the driver, in the presence of Walker and his two sons.

That the deputy sheriff was sent for it on the following day, and he requested him to point out the cotton; but that He refused to do so— stating, “if you can find it, go and get it.”

That he went away without making any seizure, but returned a few days afterwards with the warrant for his arrest.

That he was arrested in his store, in the presence of his clerks and customers; and remained in custody while many other persons who were attracted by curiosity, came in.

That he was taken by the sheriff, openly and publicly, to the town of Franldinton, the parish site, and incarcerated in jail, and kept there until he furnished bail — some three or four days.

That Rimes was indebted to him for supplies, and that he paid him by crediting his account.

That Walker’s gin is about three-quarters of a mile from plaintiff’s store, and one and a half mile from that of Varnado’s store.

That he employed no force or duress in getting possession of the-col ton; and at the timé had no notice of Varnado’s claim other than the statement of Walker that Varnado had directed him to mark the-cotton, but that Rimes denied Varnado’s right to do so, and told him to put it on his wagon.

He stated to Walker that he had sold the cotton to him, and helped the driver put it on the wagon.

The following interrogation then occurred, viz.:

“Q. — Did you have any idea, or intention whatever of committing any robbery?

“A. — Why, certainly not. I never thought of such a thing. For Mr. Rimes sold it to me and I considered it my cotton. He sold it to me, and I thought I had a right to it,”

He states that he had made advances on the cotton. That at the time of his arrest, he carried a stock of $4,000 or $5,000, and owned, in addition, a farm of 600 or 700 acres; and the movables on the farm were worth $5,000.

He makes a statement of the damages he sustained, giving full particulars, and which amount in the aggregate, to the sum demanded; and among them are enumerated, injury to his social and business reputation, his credit, and financial standing as a merchant; and, also, his annoyance, vexation, humiliation and mortification on account of his arrest under so grave and heinous a charge as that of robbery, and being confined in jail for several days.

He states that Rimes, His customer, only lives about one-half a mile from Walker’s gin.

That at the time the bale of cotton was delivered to him by Rimes after his purchase, it was branded with a (V), and that Walker told him that he had been instructed by Varnado to place that mark upon it; and that he afterwards put his own mark on it, and marked out or erased the (V).

That this same bale of cotton was the subject of a civil suit between him and Varnado, and the court decided that it belonged to Varnado.

J. R. Rimes states emphatically, that he never sold the.bale 'of cotton to Varnado, but that, on the contrary, he sold it to Gann, the plaintiff, and delivered it to him in the presence of W. F. Walker and his two sons.

His statement of what occurred immediately previous to the sale to Gann is as follows, viz.:

“When I hauled the cotton that morning to the gin of Mr. Walker, Mr. Varnado came up and stayed there until I got through unloading. And after we got through unloading, his son, Scott Walker, brought a sample of the cotton and showed it to Mr. Varnado. He took it and asked me what was I going to do with it. I told him I was going to sell it; and he asked me to whom. I said, I am going to give you and Mr. Gann both a chance on it. I first intended to carry it out to Mr. Gann, and then out to your house; and the one who offered me the most (should have it). He said, ‘I want this cotton.’ ‘Allright,’ I said, ‘if you give me more for it than Mr. Gann, you can get it.’ ‘By G — d, I must have it,’ he said. ‘You are fixing to get yourself in a scrape.’ I asked him why; I don’t see why I am going to get that way. He said, ‘I want to tell you right now, if I don’t get this cotton, I am going to make it cost more than it is worth. Mr. Gann has been monkeying with my business long enough, and if I don’t get this cotton, I am going to make it cost more than its worth. He said: ‘I will tell you what I will do; if you will stick to me and do what I tell you, we will 'beat Mr. Gann out of every cent you owe him, and it shant cost you a nicJcle/ I said, ‘Mr. Varnado, I intend to pay you and Mr. Gann every cent I owe you. I never bore the name of not paying an honest debt.’ And he said: ‘By G — d, you had better do 'what I tell you’; and I replied, ‘If that is what you want me to do, you have struck the wrong man.’ ‘Weil,’ he said, ‘I will give you seven and a-half cents for that cotton, and you had better take it;’ and I told him I would not, until I saw Mr. Gann.”

He then told him, if Mr. Gann did not give him more than that, he could have the cotton. He then most distinctly corroborates the statement of Gann with regard to the circumstances of the sale and delivery to him of the bale of cotton.

The story of Gann and Rimes is fully confirmed by the three Walkers and two other witnesses.

The purport of the defendant’s testimony is as follows, viz.:

Charles Richardson states that he was deputy sheriff and had in hand a writ against Rimes for the seizure of the bale of cotton claimed by Varnado*, and that on calling on Gann for it, the latter said: “As far as the cotton is concerned, it is out of the State.”

That he reported this statement to Varnado before he made the affidavit charging Gann with robbery.

That while he was, at the time, deputy sheriff, he was under contract with Varnado to begin work for him as clerk in his store on the following Monday.

Steve Burris said, Rimes told him that he had sold the cotton to Gann.

“Q. — Did you see John Rimes at his house on the day of the seizure, etc. ?

“A. — Yes, sir.

■“Q. — Did you see him on Saturday following the transaction?

“A. — Yes, sir, I did.

“Q. — Did you have a conversation with him, etc. ?

“A. — Well, Mr. Rimes called there at the store for his mail, and I ■told him to come in; and as he came in, I said to him, 'I suppose you have sold Gann the cotton?’ (and he replied) 'Yes, sir, I did it to save myself. Gann wanted to see me and break me up, if he didn’t get the .cotton.

“Q. — Did he say whether he had sold it to Varnado?

“A. — I didn’t ask the question. It was understood between me and Mr. Tarnado that he had bought the cotton."

This witness states that he informed Varnado of Burris’ statement before the issuance of the warrant for Gann’s arrest.

Lucien McMillen makes a similar statement, and says that Rimes •told him that he begged Gann to give him a few days’ time so that he might see Varnado concerning the cotton, but that he refused — saying, that he "had to have the cotton.” That Rimes then said to Gann That he would go with him to the gin, “if he had to have it.”

“Q. — What did he say to go to the gin for?

“A. — To let him have the cotton.”

That witness was a clerk of Varnado.

The foregoing is a fair synopsis of the testimony of all the witnesses except that of the defendant; and the substance of it is, that 'Rimes was a customer at the stores of both the plaintiff and the defendant, and had an account with each for supplies furnished, but not a •sufficiency of cotton to pay both. That the two stores were less than two miles apart, and Rimes lived in their immediate vicinity; and that Walker’s gin was quite near to Gann’s store. That Rimes hauled his cotton in the seed to the gin, and at that time the rivalry between the two merchants commenced.

Varnado as a witness says that he “bought the bale of cotton from Mr. Rimes, with the understanding that when it went into a bale, and was weighed by Walker, he was to take it by the gin weights.”

Consequently, the delivery was subject to this condition which had not yet transpired; and there is no proof that Rimes was present, or •assented thereto.

On the contrary, all the testimony, other than that of Varnaao is to ■the effect that he was not present and did not assent thereta.

Therefore, the marking of the bale with the brand of I. N. Varnado ■'& Son was without any significance and afforded no indicia of title in that firm; and presented no obstacle to a sale by Rimes to the plaintiff Gann. The proof is clear, that Rimes accompanied Gann to-Walker’s gin, and when Walker called their attention to the fact of the bale having been marked in Varnado’s name, Rimes at once repudiated his right to do so, in the presence of Gann, the three-Walker’s and the wagon-driver; and he volunteered to assist the driver to put the cotton on his wagon.

And the statement of the deputy sheriff, Richardson, is, viz.: “I did not ask Rimes whether he had sold the cotton to Varnado. It was-understood between me and Mr. Varnado, that he had bought the cotton” possesses powerful significance in the light of the surrounding circumstances.

Not only does this testimony east a serious doubt upon the claim of Varnado as owner of the cotton, but it makes it perfectly clear thatVarnado was fully advised of the dealings between Rimes and Gann with regard to this bale of cotton prior to his making the affidavit charging Gann with robbery; for it was this deputy sheriff who had •gone to Gann’s store on the day following his purchase, with a writ of' attachment, at Varnado’s instance, and he therefore knew it was in Gann’s possession.

It is quite true that in a civil suit between I. N. Varnado & Son and Gann, the court decided that the former were owniers, but it does not appear on what evidence their claim was sustained; yet, in so-far as the question of ownership in Varnado goes to substantiate the charge of robbery, the decided preponderance thereof is just the other way.

It tends not only to show that Gann had bought the bale of cotton lawfully from Rimes, and had obtained actual possession thereof, at least three days prior to the making of the affidavit for his arrest by Varnado; and that the latter knew the facts and circumstances of Gann’s purchase and possession at the time he made the affidavit.

In this connection, the testimony of Varnado máy Be appropriately-considered, and we have made the following extracts from the transcript, as they are quoted in the brief of plaintiff’s counsel after having-compared and verified same, viz.:

“Mr. Varnado in his direct examination says:

“Q. — When did you first learn that the cotton was not carried to-your store, but to some other point? From what source?

“A. — I learned it from Burris (means Steve Burris), the man in charge out there. A negro boy called me out about 8 o’clock in the morning and said he had a note from Burris; I loo! ed at it and went and woke Mr. Burris up.

“Q. — What Burris?

“A. — Judge Burris (means W. A. Burris, the J. P. at Franklinton), and got papers to sequester the cotton.

“Q.- — Well, do you know who was armed with that writ and execution?

“A. — Chess Richardson.

“Q. — Was any report made subsequent to that time to you by OhessRichardson as to what-occurred'between him and Gann?

“A. — Yes, sir. When he returned and failed to 'find the cotton,. Gann told him that it was out of the State, and if I got the cotton I would have to make it out of him, and I then made a statement to-Carter about the news Richardson brought me and what the result of the trip was out there and he advised me to arrest Gann.

“Q. — Who was present when he so advised?

“A. — Judge Burris.

“Q. — Now, Mr. Varnado, when you made the statement to Carter,, state whether or not you made a full statement from the beginning to-the end?

“A. — I made it just as clearly as I knew how to make it and all the-statement Richardson made to me, and the whole thing.

“Q. — State what you were governed by in filing this affidavit in-swearing out this warrant, whether it was advice of counsel, or Burris, or what?

“A. — Partly by that and partly by circumstances and statements of' Richardson.

“Q. — Did you entertain any malice in filing that affidavit?

“A. — None whatever; I had the same feeling against him in that as-any one else that had taken my cotton.

Cross-Examination.

“Q. — Mr. Varnado, you had no malice and hatred against Mr. Gann at the time of making this affidavit ?

“A. — Just as much as any one else that would take a bale of my cotton.

“Q. — There was nothing between you before that ? ‘

“A. — -Any other than I wouldn’t have the best kind of feeling for any one that had my cotton, and from information I believed it belonged to me.

“Q. — How did you believe that he had got the cotton?

“A. — I thought that he had went to the mill, hauled'it off without leave.

“Q. — What you believe, who told you that?

“A. — By a letter received from Mr. Burris (Steve Burris).

“Q. — What was the substance of the letter he wrote yrou?

“A. — That Mr. Gann had went to the mill and taken a bale of cotton I had bought from Rimes when I left the mill. When I bought the •cotton, I told him that I bought the cotton and came on home and instructed him that Walker would send it up Saturday, and when I got home I gets a letter stating that Gann had carried the cotton off.

“Q. — Why didn’t yon make that affidavit as soon as you received that letter from Burris ?

“A. — I didn’t have time; I first tried to get the cotton; I thought I would get the cotton in the State, I didn’t think it was out of the ■State at the time.

“Q. — Why didn’t you? You say that you thought that Gann took it off without leave or license when the sheriff was over there?

"‘A. — I supposed that when I sent the sheriff there first and he would take the cotton and we would have a civil suit, and when the sheriff returned and said that the cotton had gone out of the State, and my .attorney said it was robbery, I taken it out.

’“Q. — Why didn’t you sue for the probable value of a bale of cotton?

“A. — I acted under the advice of my attorney.

“Q. — Did you consult an attorney at the time you got out a writ of ■sequestration ?

“A. — Yes, sir.

“Q. — Which one?

“A. — Mr. Carter.

“Q. — Sow came you not to make the affidavit thenf

“A. — I just stated that I hoped to catch the cotton in the State, When I failed to find it, I issued the writ.

“Q. — So, yon made the affidavit upon the information of Richard•son?

“A. — Yes, sir-; and upon the advice of Mr: Carter.

“Q. — -What explanation did you make to Carter at the time you. made the affidavit? What did you tell him?

“A. — I told him that I had been — I told him this first; I didn’t tell all at one time; I made two statements. I made a statement when I got out the papers in the civil suit, and he was aware of what had occurred, and at the time of getting the letter from Burris, and then when Richardson returned. ■ I believe .Mr. Carter came to me and asked the result, and I told him that I failed to get the cotton, and. what Richardson had stated that Gann said to him.

“Q. — And then you made the affidavit ?

“A. — Yes, sir.

“Q. — Well, how is it that you told him (Walker) when you left the gin that if anybody else came for it, not to let them have it ?

“A. — Because Gann came out here and recorded a lien against Rimes, and I notified Rimes that I had a claim on the cotton, and warned Gann not to advance anything on that crop; and also got the clerk of court to write Gann and state to him that I had a bill against him, and also made put my account that day and recorded it in the clerVs office. I stated that I expected to give. I warned him that I' claimed that I had furnished supplies to make that crop and that I expected to hold that crop.

“Q. — And because he got a bale of cotton you made an affidavit?

“A. — No; because he run it out of the State. I attempted at first to get it by civil action.

“Q. — Then did yc-u, at the time you left word with Walker, half way expect that Mr. Gann would come after the cotton ?

“A. — I sorter half way expected they would attach the cotton and I left it there till Saturday, not particularly for that, but that was the nearest way to get it away from there without extra labor.”

Again:

“Q. — After you made the affidavit, did you go before the grand jury and testify against Gann ?

“A. — I was summoned before the grand jury and while there I was> questioned concerning Gann and Rimes, and that cotton.

“Q. — Did you not have other witnesses summoned before the grand jury concerning the charges made?

“A. — I think I did. Yes, sir.

eeQ- — Do you know if the grand jury acted in the matter — found any bill against him? I mean as far as Gann is concerned.

“A. — I don’t know further than I stated.

“Q. — Mr. Yarnado, where do you live, now?

“A. — Osyka, Mississippi.

“Q. — How came you to move away from this State?

“A. — Well, there are so many reasons. I don’t know how to go at it ■exactly, etc.”

It is manifest that Yarnado’s testimony does not materially alter the status of affairs as it is fixed by other witnesses.

It is quite clear that Gann had a valid and duly recorded lien .against the crop of Rimes, of which Varnado was duly advised, and against which he protested; and that soon after having obtained this information the latter proceeded to have his own claim recorded.

The testimony tends to show .that this state of affairs produced in the mind of Varnado a spirit of strong business rivalry; and when Rimes hauled the seed cotton to Walker’s gin, and he was informed of his intention to permit both merchants to bid on the same when ginned and baled, and to allow the one offering the highest price to take it, Varnado manifested great anger, and told Rimes that he “must have it,” accompanying the statement with an oath. That he told Riems that he “was fixing to get himself in a scrape;” and that he was going ■“to make it cost more than it was worth” if he didn’t get the bale of ■cotton.

That he declared that “Mr. Gann has been monkeying with his business long enough, and that if he did not get this cotton, he was going to make it cost more than its worth.”

That he then proposed to Rimes that if he would stick to him (Yarnado), and do what he told him, “we will beat Gann out of every cent (he, Rimes) owed him, and it should not cost him a nickle.”

That this proposition Rimes refused, and thereupon the latter replied with an oath:

“You had better do what I tell you.”

These statements were made and emphasized by Rimes in the course of his testimony for the plaintiff in chief, and were not denied or disavowed by Yarnado when interrogated as a witness in his own behalf.

Failing to obtain'Rimes’ consent to his offer, Yarnado gave Walker directions to put the mark of his firm, I. N. Yarnado & Son, on'the bale when it had been packed, and if any one came for it not to let him Have it.

He instituted an attachment suit against Gann, and failing to find -the bale of cotton, be made the affidavit for his arrest on a charge of robbery.

But Gann made a purchase of the cotton from Rimes, and the latter placed him in actual possession of it, at Walker’s gin in the presence of several persons at least three days prior to the affidavit being made, .and of which Varnado had full notice.

.’ There is a total absence of proof of any secrecy, or stealth on the part of Gann in the transaction; and none whatever of his having used any force or violence in getting possession of the cotton.

The dealings of Gann in respect to the cotton were open, public and of a business like character, and in pursuance of his legal rights; .and his arrest and confinement in jail upon a charge of robbery was entirely causeless and unjustified, in any view, that can be possibly taken of the case.

And the contention of Vainado’s counsel that he acted upon the advice of counsel is not sustained by the proof. The only witness who -testified on the trial in reference to this question was Varnado him:self; and when other witnesses were questioned on the subject, his counsel objected, and his objections were sustained.

The attorney who represented and advised Varnado in the civil suit, and counseled him to make a charge of robbery against Gann, was his sole counsel at the trial, and prepared and signed his answer; and the plea of counsel’s advice is made conspicuous by the fact that he failed to give the court the benefit of his testimony on the'subject.

This fact was specially pointed at the second trial by plaintiff’s counsel having called him as a witness for the purpose of affording him an opportunity of making a statement; but this he declined to do.

Indeed, we think, Varnado’s testimony on this question is conclusively against him, as will appear from the following, viz.:

“Q. — State what you were governed by in filing this affidavit, and • swearing out this warrant, whether it was advice of counsel, or Burris, or what?

“A. — Partly that, and partly by circumstances and statements of " Richardson.”

It is difficult for a court of justice to believe that an attorney-at-law - who had been fully informed of the facts surrounding the cotton transaction, could have advised Varnado that he was justified in making a • charge of robbery against Gann.

The district judge prepared and submitted to the jury, a written charge, with which he seems to have taken great pains, and it evidenced a close research into the authorities.

Therefrom, we make the following extracts:

(a) “That probable cause means a reasonable ground of suspicion supported by circumstances in themselves .sufficiently strong to warrant a reasonable, cautious man in the belief that the person accused,, is guilty of the offense charged.”

(b) “That to sustain the charge of malice, the criminal charge must appear by a preponderance of the evidence, to have been wilfully false.”

(c) “That to sustain a suit for a malicious prosecution, the facts-ought, to be such as to' satisfy any unprejudiced mind, that the accused had no ground for the prosecution, except his desire to injure the accused.”

(d) “That the commencement of a criminal prosecution, simply for the purpose of collecting a debt, or private claim, is an abuse of the process of court, and would be conclusive evidence of malice on the part of the person commencing such proceedings; and in such-case, the advice of counsel would afford no protection.”

(o) “If you believe from the evidence, that when the defendant made complaint before the justice, he did not have probable cause to-believe that such complaint was true, then, you may infer malice, and express malice need not be proved.”

Our learned brother of the district court entertained a proper appreciation of the law applicable to malicious prosecution, and instructed the jury with care; and this is apparent from the foregoing extracts from his charge.

An examination of all the authorities makes it plain that, under the-evidence adduced, the defendant made the affidavit against the plaintiff and caused his arrest and confinement wholly without probable cause.

“To maintain an action, the plaintiff must prove (1) that he has-been prosecuted by the defendant criminally or in a civil suit, and that it is at an end; (2) that it was instituted maliciously and without probable cause; (3) that he has sustained damage thereby. 2 Greenleaf on Evidence (10th Ed.), Sec. 453.

* x- -x x- * -x * -x -x -x x- *

“Probable cause does not depend on the actual state of the case in point of fact, but upon honest and reasonable belief of the party proseeuting. It must appear that the defendant knew of the existence o£ these facts which tended to show -reasonable and probable cause, because without knowing them, he could not act upon them; and, also, that he believed that the facts amounted to the offense which he charged, because otherwise, he will have made them the pretext of prosecution without even entertaining the opinion that he had the. right to prosecute.” Id. Section 455.

The Supreme Court in an early case defined probable cause as being" “the existence of such facts and circumstances as would excite the ■ belief in a reasonable mind, acting on the facts within the knowledge' of the prosecutor that the person charged was guilty of the crime for which he was prosecuted.” Wheeler vs. Nesbitt, 24 Howard, 544.

And, in the same case, the court stated the want of probable cause, thus:

“Undoubtedly, every person who puts the criminal law in force-maliciously, and without any reasonable and probable cause, commits-a wrongful act; and if the accused is thereby prejudiced, either in his ■ person or property, the injury and loss so sustained constitute the-proper foundation of an action to recover compensation.”

And, in furtherance of that view, the court referred to the following instruction which had been given in the lower court to the jury, - as follows, to-wit:

“If, however, the jury find that the arrest was wanton and reckless, and that no circumstances existed to induce a reasonable, dispassionate man to believe, that the defendant was guilty of having stolen the horses he had in his possession, then the jury are to infer malice.”

With reference to this charge the court say:

“Clearly this part of the charge must be taken in connection with what preceded it, and when so read and understood, it is impossible • to hold it is incorrect, etc.”

In Behrnes vs. Coxe, 2nd An., 472, the averment of the plaintiff was, • that “the defendant maliciously intended to injure him, and without reasonable or probable cause, charged him on oath before a justice of the peace, with having stolen a negro girl slave named Maria, and' caused him to be arrested and taken before a justice of the peace, by whom he was discharged.” ■

The proof showed that while a public sale was about being made of the property of a succession of which the slave Maria formed a part, “she voluntarily left, or was removed from the possession of the defend- - ant, and went to the plantation of the plaintiffs father, and where the plaintiff resided, but through whose,, agency is not distinctly shown. The defendant thereupon made the oath before the justice of the peace * * * that the slave was stolen and taken away from his premises by the plaintiff.”

The plaintiff demanded, five thousand dollars damages, and the jury awarded five hundred dollars; and the verdict and judgment were affirmed on appeal.

Rut the plaintiff in that case was not put in jail and confined therein as Gann was; and he was afforded a preliminary examination and speedy release as Gann was not. And the defendant in that case was in possession of the property as Varnado was not; and the charge preferred against Gann was far more ignominous and the circumstances against him altogether free from doubt.

In Cannell vs. Michel, 6 Ann., 579, the proof showed that the plaintiff 'had agreed to build a cistern for the defendant, on whom he was to receive an order for payment. That the order was drawn and dishonored, and the plaintiff took down and carried away the cistern, and the defendant made an affidavit against him, charging him with larceny, from which he was subsequently discharged on a preliminary examination by the justice of the peace.

The court say: “There was nothing in the conduct of the plaintiff which indicated the felonious intention with which he is charged. The defendant saw and knew, that the plaintiff claimed the cistern as his own property, and as a matter of right until it was paid for.

# * -x- * * * -x * * * * if

“If the defendant really believed he had any claim to the cistern, he could as easily have sued for and sequestered it, as to have caused the arrest of the plaintiff for a larceny, of which the case did not present a single feature. The use of criminal nrocess to enforce a .civil claim, is an intolerable abuse, even when the claim exists. But. •'if the claim is unfounded, it shows a recklessness of the rights and .character of others which amounts to malice.”

The jury awarded the plaintiff damages and this court sustained “their verdict.

The instant case is an almost exactly parallel ease to the one there decided.

Both the plaintiff and defendant in Decoux vs. Lieux, 33 Ann., 392, •were country merchants, each of whom had advanced their customer, Patin, plantation supplies.

The defendant sued Patin had sequestered his crop ungathered in •the field, and the defendant enjoined the seizure; and, as a result of •those proceedings, the crop of cotton was released from seizure.

“Patin, thereupon,” say the court, “proceeded with the gathering ■of his crop, hauled a part of it publicly, and in the day time, to a public gin in the neighborhood, where one bale was ginned and baled .and delivered to the plaintiff, Decoux, as agent for his wife, who, also, publicly and in day time, had it hauled to his wife’s store and deposited in the yard. There seems to have been not the slightest attempt at concealment about any of those proceedings.”

Thereupon, the defendant made an affidavit before the parish judge, charging the plaintiff with having stolen the cotton; and, thereunder a warrant was issued, the plaintiff arrested, and carried to the courthouse where, without examination, he was released on giving bond to appear before the District Court. At the session of that court, the ease was examined by the grand jury, who returned “not a true bill,” whereupon he was discharged by the court, and his bond cancelled.

On this state of facts the court made the following observations, ■viz. •

“It is-manifest that, under the facts disclosed, Decoux had committed no crime whatever. The cotton belonged to Patin. * * * He had the perfect right to control and dispose of the cotton. * * * Lieux seems to have had no cause for believing Decoux guilty of the ■crime with which he charged him, except the bare fact that he was in possession of the bale of cotton. The very publicity of that possession and the absence of concealment were badges of innocence which ■should have put him on enquiry. The slightest inquiry would have developed the truth. * * *

“It is difficult to conceive of a case.more completely lacking in -either actual or probable cause. His conduct was rash, réclcless and unreasonable, evincing utter absence of that caution and inquiry a man should employ before making criminal charges against his neighbor. The reputation and liberty of the citizen are privileges too precious to be left at the mercy of such grossly inconsiderate proceedings ■as thesp.”

The jury awarded the plaintiff one hundred and fifty dollars, and •this court increased that allowance to five hundred dollars.

We have made liberal extracts from the opinion in that case, because we conceive the facts therein detailed to be so perfectly apposite to the facts of the instant case, that the decision of the court therein,, must exercise a controlling influence over our opinion in this case.

Not only so, but the court held, that the advice of counsel given to-the defendant, on the state of facts as represented, was so “utterly unfounded,” that it was “not entitled to any consideration whatever.”'

The same proposition is very plainly stated by the court in Classcock vs. Bridges, 15th Ann., 672, thus:

“The defendant for the purpose of obtaining possession of the boat, caused the plaintiff to be arrested, etc. * * *

“It is very evident that the only object of the defendant was to obtain possession of the boat, and that he acted without probable cause-in the matter of the arrest.

“Under such circumstances, the advice of counsel, as contended, will not exempt the defendant from liability for damages to the plaintiff, who has been aggrieved by his act.”

Grundy vs. Crescent News and Hotel Company, 38th Ann., 976, and Cointemont vs. Cropper, 41st Ann., 303, are parallel cases.

Authorities of similar import might be cited ad infinitum, but we-have chosen the foregoing as amongst the most conclusive, and rest our decision upon them

After having given this case most careful attention in all of its-details, we feel thoroughly satisfied the defendant made the affidavit for the arrest of the plaintiff on the very grave charge of robbery, and1 caused him to be arrested and incarcerated in jail, where he was detained for three or four days, wholly without probable cause, and with-malice, both express and implied.

The said arrest was made publicly, in the plaintiff’s own store, in the presence of his clerks and customers, and in the near vicinity of his own family and residence.

The circumstances under which his causeless arrest and incarceration in jail occurred, were most aggravated and humiliating to the plaintiff; and wé are entirely confident that the verdict of the jury has not done him justice.

Exercising the prerogative vested in this court, though it has been exercised in but few instances and under exceptional circumstances, our conclusion is to set aside the judgment and verdict appealed from’ .and render a judgment in favor of the plaintiff in the sum of five hundred dollars.

It is therefore ordered and decreed that the verdict and judgment appealed from be annulled and reversed; and it is now ordered and decreed that the plaintiff do have and recover of and from the defendant the sum of five hundred- ($500.00) dollars, and that he be taxed with all costs of both courts.