author: Slidell, J.

text:
    Juan Y. de Egana v. Alden A. M. Jackson.
    Where a party bonded property which had been provisionally seized for rent, he is responsible on his bond only for the amount claimed in the suit at the time the bond was given, although subsequently the plaintiff filed a supplemental petition claiming a larger amount.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J. The plaintiff took out a provisional seizure for $195 for rent, due by the defendant, and seized a quantity of gunny bags, in the hands of J. W. Zacharie 4‘ Co., which had been previously removed from the store rented to the defendant. Zacharie Sf Co. bonded the property seized, giving a bond for $750. Subsequently to the execution of this bond, the plaintiff filed a supplemental petition, claiming $695, upon the ground that the defendant had abandoned the premises. The judge of the court of the first instance decided, upon suit being brought against Zacharie 8f Co. on the bond, that they were liable only for the sum claimed at the time the bond was given, to wit, $195.

      Halsey, for plaintiff. H. H. Strawbridge, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

We concur with the district judge in the opinion, that the only amount for which Zacharie Sf Co. were liable, under their bond, was the amount for which the seizure issued, and that this amount was subsequently paid. We do not consider the evidence as proving a fraudulent combination to defeat the landlord, so as to bring the case within the ruling in Dennistoun v. Malard, 2 Ann. 16.

The judgment of the district court is therefore affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Jerome Jorda v. H. Gobet et al.
    Where the contractor fails to complete a building within the time specified in the contract, the owner, after putting him in default, may proceed to finish the building, and the money remaining in his hands after paying for the completion, is a fund out of which the privileged claims of material men, &c., may be paid.
    The owner of a building being evicted under a contract, has no right to pay the contractor, in anticipation of the term stipulated in the contract; if he does so, he renders himself liable to the claims of material men, workmen, &c., who have given him the requisite notice before the time expired.
    APPEAL from the Second District Court of New Orleans, Lea, J. The judgment of the court of the first instance was as follows t
    “ The plaintiff contracted with Henry Gobet for the erection of a building at the corner of Canal street and the levee; said Gobet was to furnish all the materials,'and to deliver the house to plaintiff, completed according to contract, on the 1st November, 1848, under a penalty of eight dollars for each day’s delay after that date. On the other hand, Jorda was to pay for the work, according to saideontract, eight thousand eight hundred dollars, in installments, varying in amount, as the work progressed, and the last installment of $3300, was to be paid fifteen days after the delivery of the house to Jorda. Gobet failed to complete his contract at the time specified, but he was not put in default, nor was it till after the 1st January, 1849, that he ceased working on the building. When the building was actually completed, I am unable to gather from the testimony, with any degree of certainty. It seems, however, that it was not finished as late as the 24th January, and there is a strong probability that it was some days after, before it was entirely completed. But, assuming the fact that the building was completed on that day, the maturity of the last payment did not accrue until the 8th February, 1849. In the meantime, sundry claimants served attested notices upon Jorda, of their claims against Gobet for labor and materials furnished in the erection of said building. These claims have been proved to the extent allowed in the annexed statement. Nearly all of them, in addition to the claims they make, as sub-contractors, or material men,- have alleged and proved direct promises by Jorda to see them paid.
    “ Under the ruling of the Supreme Court, in the case of Allen v. Wills and others, as applied to this contract, it appears to me that Jorda had no fight to vpay any part of the last installment of $3300, until fifteen days after the work was entirely completed. He had no right to pay it, either to or for account of Gobet. Had Gobet abandoned the work, and been put in default, Jorda would have had a right to go on and complete the building, according to contract, and, after deducting the sum necessary to such completion, and such damages as the contract allowed, the balance of the installment would have constituted a fund out of which all the claimants would have been paid ; but, in the present case, Gobet was never put in default, nor does the evidence establish the amount of disbursements (if any there were,) made by Jorda, in completing the building, after an abandonment by Gobet. The plaintiff is, therefore, liable in the amount of the whole of the last installment to the workmen and material men who were engaged in the erection of the building in question. The payments made to, or on account of, Jorda, are therefore anticipated payments in relation to all those who served attested accounts on Jorda, within fifteen days subsequent to the completion of the building. The several claims presented have been proved.
    “ By the showing of the plaintiff it appears, that the payments to, or for account of, Gobet amounted to $8597 50. In the absence of any claims against Jorda, on the completion of the building, Gobet would have been a creditor for the amount of $202 50, deducting this sum from $2499 32, the amount due to the several claimants, for which Gobet is responsible to Jorda, and the claim of Jorda against Gobet, would amount to $2296 82. No proof has been offered of the registry of the principal contract; there is, therefore, no privilege in favor of any of the claimants on the building.
    “ It is therefore ordered, adjudged and decreed, that there be judgment against Jérome Jorda, and in favor of the following claimants, for the respective amounts annexed to their names, in the following tableau : 1. Depouilly Sf Co., three hundred and seventy dollars, $370. 2. P. Brugnot, seventy-four dollars, $74. 3. Maris 8f Delange, two hundred and twenty-four dollars, $224. 4. E. Knoca, one hundred and twenty dollars, $120. 5. R. Dargelos, five dollars, $5. 6. John B. Walsh, two hundred and twenty-four dollars, $224. 7. P. Claes, thirty dollars, $30. 8. N. Schroeder, forty-two dollars, $42. 9. H. Dietras, thirty-four dollars, $34. 10. E. Farger, twenty-three dollars, $23. 11. C. Pouilly, six hundred and twelve dollars, $612. 12. A. E. Corry, ninety dollars and sixty-two cents, $90 62. 13. M. Brugnot, fifty dollars and sixty-five cents, $50 65. 14. F. Correjolles, one hundred dollars, $100. 15. P. H. Monsseaux, one hundred and twenty-seven dollars and twenty-five cents, $127 25. 15. Sylvester Bennett, three hundred and seventy-two dollars eighty cents, $372 80. And that said Jérome Jorda do also pay the costs of this suit. It is further ordered, that as respects the claims of Curley 8f Hays for eighteen dollars and seventy cents, and David Ray for sixty-five dollars, there be judgment of non-suit; and, further, that there be judgment in favor of Jerome Jorda, and against Henry Gobet, for the sum of two thousand two hundred and seventy-six dollars and eighty-two cents, and cost of this suit.

      Roselius, for plaintiff. Buisson, Collins, and Denegre, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

For the reasons assigned by the district judge, the judgment-is affirmed, with costs.


author: Eustis, C. J.

text:
    John Haggerty v. Henry Corri.
    An instrument which purports to be a sale, but in which there is no price stated, will not be regarded as a sale, but as a donation.
    A donation, in which the donor reserves the usufruct for life is invalid, C. C. 1520.
    A married woman cannot malte a contract of sale or donation without the authorization of her husband.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The judgment of the court of the first instance was as follows : “Plaintiff claims to have been, since the 27th May, 1837, and to be still, the owner of a slave named George, which has been sold by the defendant, to his prejudice.
    “Defendant pleads the general issue, and alleges title to the slave George in himself.
    “Under these pleadings it was clearly incumbent on plaintiff to prove a title. The title which the date contained in the petition implies is found in a document dated 28th May, 1837, a deed from Eliza H. Pope to John Haggerty. Is this deed a sale, or a donation 1 It purports in terms to be a sale. But it cannot be a sale, for there is no price. The consideration expressed is “the love and affection which” Mrs. Pope’s love to the plaintiff. As a donation it is bad, because Mrs. Pope therein reserves to herself the usufruct of the slave George during her natural life. Civil Code, art. 1520.
    “Another document introduced by plaintiff is a renunciation of right, claim, and interest in the slave George and others, made by Henry Corri, the defendant, on the 10th July, 1839, defendant being then the husband of Mrs. Eliza H. Pope, in favor of the plaintiff, of one Michcel L. Pope, and of his, defendant’s, wife. This renunciation certainly was not intended for the exclusive benefit of plaintiff; and he has adduced no proof that he is the legal representative of Pope and of Mrs. Corri.

    “The plaintiff has further given in evidence, a third title, also from Mrs. Corri. This title is dated August 10th, 1840. It purports to be a sale, although no price is stipulated; the consideration being precisely the same as expressed in the title of the 28th May, 1837. But the defendant’s counsel has pointed out a capital defect in this instrument, which renders it utterly void. It is a contract made by a married woman, without the authority or participation of her husband.
    “I conclude, that the plaintiff has failed in proving any title in himself to the slave George. And it is accordingly adjudged and decreed, that there be judgment for defendant.”

      Hornor, for plaintiff. Roselius, for defendant. Gaither, for intervenor.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons given by the district judge in his written opinion, it is ordered, that the judgment appealed from be affirmed, with costs.


text:
    Succession of L. B. Macarty.
    On an opposition to an account filed by two executors, tbe universal legatee cannot litigate the legality of the title of one of the executors to property which he had received from the testator before his decease, upon the grounds that it was a jidei commissum, or an invalid donation. These are matters in pays which the executor has a right to have tried by a jury.
    Whore the testator has made a legacy to his natural children, the mother will not be regarded as a person interposed between the donor and the children; nor will the children be regarded as interposed in reference to the mother, where the testator has left her a legacy.
    Executors cannot claim their commissions on property of Which they never had the Beizin, and which was not included in the inventory.
    APPEAL from the Fifth. District Court of New Orleans. Buchanan, I.

      Taylor and Janin, for opponents and appellants.

      G. Le Gardew, Eyma and Pitot, for appellees.
   The judgment of the court was pronounced by

Rost, J.

This is an opposition by the universal legatee of the testator to the account filed by his executors.

The first ground of opposition is, that the testator, shortly before his death, paid over and entrusted to A. Pardo, one of his executors, as a donation to, and in trust for, his natural daughter, Marie Louise Macarty, large sums of money which Pardo promised to invest for her benefit and use; that he is the tutor of Marie Louise Marcarty; and that either in that or in his personal capacity he is in possession of, or withholds those sums; that the funds and notes thus delivered aie a jidei commissum, and as such, null and void.

To pi'ove the facts upon which this opposition rests, the opponent propounds to Pardo interrogatories, which he answered. In his answers, which have not been traversed, he states that he received from Macarty, before he made his will, various notes of hand of different persons, amounting to over $24,000 ; that Macarty was at that time indebted to him in the sum of $6,000, and gave him the remainder of the amount as a remuneration for the numerous services he had rendered him since 1832 ; and that he holds that sum in his own right without any obligation or intention to account for it, or to pay it over to any one.

The opponent takes those answers as true, and asks under her prayer for general relief, that Pardo be made to account for the balance in his hands after satisfying his own debt, on the ground, that he never rendered any services to the testator, and that the donation is void for defects of form.

The district court, considering this an attempt to engraft upon an account rendered by two executors, a distinct litigation concerning only one of them, in his individual capacity, dismissed the opposition, reserving the right of the oppo-4 nent to proceed against Pardo in a direct action.

We are unable to perceive what other disposition could have been made of it. The questions presented by this new issue involve matters in pays which Pardo lias the right to have tried before a jury, if he chooses to do so. He cannot be compelled to litigate them summarily, in a rendition of accounts. Taking, as we must, his answers to be true, he is not to account for the sums claimed, in his capacity of executor; if, by reason of defects of form, or of want of consideration, the opponent has any right in those sums, she must exercise that right in an ordinary action. Chambliss v. Atchison, 2d Ann. 488. Bank of Louisiana v. Delery, 2d Ann. 648.

The next ground of opposition is, that L. B. Macarty made in his lifetime, to Eugenie Gomez, his concubine and the mother of Marie Louise Macarty, several donations of money and moveables amounting together to $21,425 35; that by law he was permitted to bequeath to his natural daughter only one fourth of his estate; and that, as he has done so, he was bound to leave the remainder of his estate to the opponent, who was his nearest relative; and that the amount donated to Eugenie Gomez must be fictitiously collated and deducted from the fourth of the estate bequeathed to Marie Louise Macarty.

This claim of the opponent is resisted, on the ground that the mother, in such a case, is not a person interposed; and further, that Marie Louise Macarty is entitled to receive the fourth of the property of which Macarty died possessed, and that if the opponent has any claim she must exercise it against the donee herself. This opposition was also dismissed by the district court.

In the case of Compton et al. v. Prescott et al., the testator had given to his natural children a plantation and slaves ; the heirs at law brought suit to annul this disposition, on the ground that the children were by law presumed to be persons interposed to their mother, the concubine of the testator, who was incapable of receiving from him land and slaves, by will or donation. But the court held that the common children .of the parties should not be presumed to be persons interposed; and that if they were so, the fact must be shown. Compton et al. v. Prescott, 12 R. R. 57.

It appears to us, that the same rule ought to hold good with respect to the mother; and that, as she has capacity to receive, in money or movables, one tenth of the value of the succession, she ought not to be presumed a person interposed between the donor and their common children. At the time the donations were made to her, the donations mentioned by the testator in his will were also made to her daughter. The amount of the donations to both did no.t then exceed one fourth of the donor’s estate; and if he had made no further disposition in his will, the donations to his .mother and child .could not have been contested on the ground that either of them was a person interposed. Both donations would, in that case, have been valid. The subsequent disposition of the testator, that his daughter should receive one fourth of the estate he should leave at his death, after deducting the estimated value of the property previously given to her, cannot make the mother a person interposed if she was not so before. Under art. 141.7 C. C., her legacy may be affected by that disposition; but this is a matter we cannot determine in this suit, Eugenie Gomez not having been made a party to the proceeding, nor do we think that it ought to impede the settlement of the succession, or that she ought to be compelled to litigate her rights summarily.

Marie Louise Macarty is entitled to one fourth of the assets ; and the opponent to the remaining three fourths. The receipt of these amounts and the discharge of the executors, will not preclude their right to claims not included in the inventory and not administex'ed upon.

The last gi-ound of opposition is, that the executox-s are entitled to no commission on the sum of $28,100, this being the estimated value of the property given by the testator to his daughter in his lifetime.

The will provides, that the property px’eviously donated to Marie Louise Macarty, shall be included in the fourth of the succession which she is to receive, and dii'ects the excutors to have it appraised contradictorily with the opponent, and to take that appraisement at its value, for the purpose of ascertaning the balance coming to her.

The title to this property remained in Marie Louise Macarty. The executors never had the seizin of it, nor was it included in the inventory. "We are of opinion, that commissions were improperly charged on the amount of the appraisement.

It is therefore ordered, that the judgment in this case be amended; and that the sum of $702 50 be deducted from the amount of commissions charged by the executors in their account. It is further ordered, that the judgment, as amended, be affirmed ; the costs of the district court to be paid by the opponent, and those of this appeal by the appellees.


text:
    Louis Goldschmidt v. The Mayor, Aldermen and Inhabitants of New Orleans.
    Where the Mayor of the city of New Orleans drew a warrant upon the Municipality Number Three, for the quota of said municipality, due upon interest coupons owed by the Old Corporation of the Mayor, Aldermen and Inhabitants of the city of New Orleans, and the warrant was protested for non-payment, it was not a novation of the original debt, and the Old Corporation remained liable.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J".

      A. K. Josephs, for plaintiff.

      H. D. Ogden, for defendant,
    contended: This action was instituted against the Commissioners of the Geuerid Sinking Fund on an order or warrant drawn by A. JD. Crossman, Mayor, on, and accepted by, .the Treasurer of the Third Municipality, and duly countersigned by the Comptroller of said municipality. Is this obligation, taken by itself, binding on the defendants ? Is it either drawn or accepted by any of the officers of the Board of Commissioners of the General Sinking Fund, acting in that capacity and in conformify to law ?
    To bind the commissioners, there must have been some authority given to issue such an obligation. "We find nothing to that effect in the record ; and furthermore no such authority could be or ever was given. The commissioners are prohibited by law from issuing any obligation except when an installment is due, growing out of the former debt of the city, and there be a deficit of funds, then, and in that case only, notes can be issued, signed by the mayor and a majority of the commissioners, which note shall be discounted in some bank, &c. Act 1836, sec. 15.
    The obligation is neither signed by the mayor, acting as president of the board of commissioners and a majority of the commissioners, or was it applied in the manner prescribed by law. On the contrary, it is drawn in accordance with a resolution of the Council of the Third Municipality, signed by the proper officers of said municipality. The signature of the mayor thereto can no more bind the defendants than it can bind either or both of the other municipalities. He was acting as an officer of the Third Municipality in the performance of a duty imposed on him both by the resolution of said municipality and by the law which, directs the mayor to sign all warrants upon the treasurers of the different municipalities. Act 1805, sec. 9. Act 1836, sec. 2.
    Thus far we have examined the question only as an obligation issued by the Third Municipality for a debt due by itself, viz, its quota. Act of 1836, sec. 15. In this point of view the general sinking fund cannot be liable, for the municipality and the defendants are two distinct corporations, deriving their revenues from different sources, and if there be a judgment against the defendants the other two municipalities will be made to pay a debt which they have not contracted, and for which they are in no wise responsible. But are the ^defendants bound from the fact that said draft or warrant was given in payment of a former debt, for which they were originally liable We find that every year each of the three municipalities is to set apart and pay to the general sinking fund, a certain per centage from its revenues. Act 1836, sec. 15.
    At the time that the obligation sued on was issued, the Third Municipality did not pay its per centage, and the mayor drew said warrant in conformity to a resolution authorizing him to draw, &e. “provided that the obligations be given to those who would consent to take in payment for interest due, obligations of the same nature from the other municipalities.” The obligation states, “ for value received, being the proportion of one hundred and fifty coupons of interest due on the bonds issued by the former corporation of the city of New Orleans, to be paid by Municipality Number Three, in conformity with a resolution passed by the council of said municipality, on the 16th December, 1843.” The obligation refers to the resolution; and to ascertain the intention of the parties, the two must be taken together. The intention of the municipality was clearly that the obligation should be given in payment of the former debt. The offer, as expressed on the face of the warrant in connexion with the resolution, was to take the warrant in payment. The assent was given, and in default of contrary proof, it must have been in all things conformable to the offer. The assent is implied. C. C. 1805. It is manifest and results from the acts of the parties: 1st, in receiving the obligation referring to the resolution ; 2d, in delivering up the interest coupons to the general sinking fund at the time of the receipt of the obligation.
    The parties took the draft or warrant in payment. Payment extinguishes and fully discharges the debt. The receipt of a different obligation in payment of a former one, extinguishes the former. 16 L. R. 143. The interest coupons were surrendered. The voluntary surrender to the debtor of the original title under private signature, constituting the obligation, remits the debt. C. C. 2195. 5 N. S. 157. It was a novation; this clearly resulted from the terms of the agreement. On n’exige pas k la vérité que les parties aient expressément et textuellement declaré qu’elles voulaient faire novation, mais il faut au moins que la volonté de l’opérer résulte clairement de l’acte. Delvincourt, torn 2, p. 51. What can be more clear and positive than receiving a new obligation in payment and surrendering the original title under private signature. 1 L. R. 527. 4 L. R. 511. 14 L. R. 33. 2 R. R. 59.
   The judgment of the court was pronounced by

Eustis, C. J.

This case is not to be distinguished from that of Short against the defendants, 4th Ann. 281. The arguments adduced were all fully considered in that case.

The cases are anomalous, arising under the peculiar legislation, State and municipal, relating to the corporation of New Orleans and the municipalities which succeeded it. We find no reason to change our conclusions on this subject.

The judgment of the district court is therefore affirmed, with costs.


text:
    Succession of Jacob A. Haner.
    The article 990 C. P., which requires that property of a succession which is sold to pay debts should bring its appraised value, does not apply to a sale of property on which there is a mortgage for Citizens’ Bank stock. In such case, the sale, if made fairly, will be maintained when adjudicated to the highest bidder.
    APPEAL from the Second District Court of New Orleans, Lea, I.

      T. A. Bartlett, for appellant.

      Grandmont and Hornor, for appellee.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit for the purpose of setting aside and annulling a sale of property made by an administratrix, on the ground that the price did not amount to the estimate made in the inventory of the effects of the suces__ sion. The sale was nominally for cash. The petition was dismissed, and the adjudication sustained. The plaintiff, who is the under-tutor of the minor children of the deceased, has appealed.

The mother was the administratrix as well as tutrix of her minor children. From the best consideration we have been able to give the subject, we are under the impression, that the application of the 990th article of the Code of Practice to the property sold is impracticable. That article requires, that property which is to be sold for the payment of debts by an administrator, must bring the amount of the appraisement if sold for cash; but if that amount be not offered at the public auction, it shall, after new advertisement, be sold on a credit of twelve months. The sale in this case was provoked by a creditor having a vendor’s privilege on the property, which was encumbered with Citizens’ Bank stock, and for which no part of the purchase money had been paid. The sale was made subject to the Citizens’ Bank stock, and the debt due upon the stock to the bank, payable according to the charter of the bank. The district judge considered the credit on this debt as more than an equivalent to the twelve month’s credit on the whole price, and that the condition of the property rendered the article 990 inapplicable to it. In this we cannot say that he erred. The sale appears to have been fair, and it does not appeal' that any injury results from the sale.

The judgment of the district court is therefore affirmed, with costs.


author: Preston, J.

text:
    The State v. Upton, Carter and Hough.
    A party who has been tried and acquitted cannot be again tried for the same offence.
    The only remedy contemplated in taking a bill of exceptions to the charge of the judge to the jury in criminal cases, is to obtain a new trial, which cannot be granted where the accused has been acquitted, unless the verdict of acquittal was obtained by fraud.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State.

      J. R. Grymes, for defendants.
   The judgment of .the court was pronounced by

Preston, J.

The defendants were accused of altering a record of the First District Court, were tried and acquitted.

The attorney general took two bills of exception to the charge of the court to the jury; and has taken an appeal to this court.

The only remedy contemplated in taking an exception to an erroneous charge of the judge to the jury, is to obtain a new trial.

New trials may have been granted at common law, where a verdict of acquittal was obtained by fraud on the part of the accused, as by keeping away the prosecutor’s witnesses, or bribing the jury; but we know of no case in which a new trial has been granted after an acquittal upon a fair trial, even though the verdict was against the evidence, or rendered upon a mis-direction of the Judge. 4 Black. Com. 361. 6 East. 315. 1 Stark, U. P. C. 516.

It was considered a great privilege secured to the subject by the common law, that a party could not be tried a second time for the same offence, after he had been once acquitted of the offence charged by the verdict of a jury, and judgment had been passed thereon for him. 4 Black. Com. 335. Hawkin’s P. C. b. 2, c. 35. And no violation of the privilege or principle has occurred in this country.

The principle was doubted by Marcy, Justice, in the case of The People of New York v. Mather, 4 Wendell 238, but was soon afterwards fully established by the Supreme Court of New York in the case of The People v. Comstock, 8 Wendell, 549.

The Supreme Court of New York did decide questions of law on an appeal in the case of The People v. Mather, after a general verdict of acquittal, but under the erroneous impression that a new trial could be granted, as subsequently decided.

In the case of The State v. Jones, the late Court of Errors and Appeals sustained an appeal by the State from a judgment quashing an indictment. The accused had not been tried and acquitted, but had succeeded in preventing a trial by inducing the court to quash a good indictment.

The Constitution, as well as the 5th section of the act of 1846, to abolish the Court of Errors and Appeals in criminal cases, evidently contemplate, that this court shall affirm or reverse final judgments of the district courts. This court is not organized to give abstract opinions on questions of law. Our decisions are to be carried into effect by the district courts. The district court could not. legally execute a decision in this case, reversing the judgment of acquittal and discharge, and ordering another trial. The defendants could successfully plead their acquittal in bar. Indeed, having been acquitted and discharged, they could not legally be arrested and compelled to enter into a recognizance again to answer to the same charge, even if we differed from the district judge in his charge to the jury.

The appeal is therefore dismissed.


author: Rost, J.

text:
    Municipality No. One v. Gas Light Company.
    Gutters and drains in the city are intended to carry off the water which falls from rains, or percolates through the ground, and they can be used by manufacturers as drains only when that use does not result in a nuisance.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Preaux, for plaintiff.

      Benjamin, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This suit is brought for the abatementof a nuisance. The plaintiffs allege, that the Gas Company, whose establishment is located in the Second Municipality, are in the daily habit of throwing and pouring into the gutters, ditches, and drains in the rear of said municipality, large quantities of foetid, infectious and poisonous waters, produced by the process of the manufacture of gas by said company. That the said ditches and drains empty into the sources and head waters of the Bayou St. John, a natural drain and navigable stream, and in fact, taint and corrupt the waters of said bayou, destroying the fish, injuring the health of the inhabitants, and rendering said waters unfit to' be drank by horses and cattle. They pray for an injunction and for damages.

The defendants filed a general denial, and especially averred, that they were entitled by law to the use of the gutters, drains, and canals, as common sewers, in discharging such waters as are necessarily produced or occasioned by the manufacture of gas. They prayed that the demand of the plaintiffs be dismissed. There was judgment for the defendants, that the injunction be dissolved, and that the plaintiffs pay the costs. The plaintiffs have appealed.

We understand the judgment to be in conformity with the prayer of the answer, and that the effect of it is simply to dissolve the injunction, and to dismiss the petition. It establishes the fact, that, at the time of its rendition, the defendants had created no nuisance of which the plaintiffs could complain, but is no bar to any other action for the abatement of nuisance which may hereafter arise from the same cause. Perhaps the more correct course would have been to try the case on its merits, and to ascertain the existence of the nuisance, before granting the injunction. But no damage has resulted from the course pursued. Ripon v. Hobart, 8 English Ch. Rep. 474. 2 Story, § 923, 924, 927. We cannot assent to the ground assumed in the answer, that the defendants are entitled by law, to the use of the gutters, drains, and canals of the city, in discharging all such waters as are produced or occasioned by the manufacture of gas. Those gutters, drains, and canals are all open, and it is indispensable to public health, that they should be kept clean, and free from bad smells, in the inhabited portion of the city. They are intended to carry off the waters that fall upon the land, and those that percolate through it. The right to use them for any other purpose is dependent upon the will of the local government, and rests upon the condition that no nuisance will result from the exercise of it.

The question involved in this controversy being purely one of fact, resting upon conflicting testimony, we do not feel ourselves at liberty to reverse the judgment of the district court. But, we deem it our duty to state, that deeply impressed with the importance of all matters relating to public health, we have, at the request of the counsel for the defendants, examined the gas-works with care, and that the present state of the discharges from the works, differs materially from that sworn to by the defendants’ witnesses, as existing at the time of the trial.

The superintendent of the works has testified, that in 1847, the tar discharged from the works was complained of to him as a nuisance ; and that, since that period, no tar has ever been discharged in the ditches. On our visits, at two different times, we found the tar and amoniacal water flowing in the gutter, through what is designated on the plan in the record, as “ the old overflow pipe from the tar-well.” We found that it had deposited large quantities of tar in the adjoining ditch, and that the effect of it was to give the water an intensely black color, and to destroy vegetable and animal life, Had these facts been shown to exist at the time of the trial, they might, in connection with the plaintiffs’ evidence, have authorized a different judgment.

We attach no importance to the fact, that the amoniacal waters and tar are not injurious to health in the immediate vicinity of the gas-works. The chemists who have been examined, testify that the injurious effects are produced by the chemical decomposition which takes place when those products are thrown into stagnant water in quantities sufficiently large to corrupt it.

The judgment is affirmed, with costs.