author: Howe, J. Taliaferro, J.,

text:
    No. 2320.
    The Eclipse Towboat Company v. The Pontchartrain Railroad Company.
    In tlio rule that “ every aeb whatever of man that causes damage to another obliges him by whose fault it happened to ropairit” (Rev. O. C. 2315), the phrase “every act ” is controlled by the word “fault,” and it results that the party bound must bo in fault, that is to say,‘his conduct must be, in the general sense of the word, unlawful.
    Ko one can be held liable for the regular and prudent exercise of a right that belongs to him, (L. 55, ff. de reg. jurisj) and he alone causes a legal injury who does what he has no right to do. (L. 151, ff. de reg. juris.)

    'The defendants, owning a short railway, from Kew Orleans to Lake Pontchartrain, and one Morgan, owning a line of steamers plying from the Lake terminus to Mobile, and the plaintiffs and other parties owning two other steamers in the same trade, an arrangement was made by defendantswithMorgan, and, temporarily, with the proprietors of the other steamers, respectively, to share pro rata the through freight from Kew Orleans to Mobile. It appeared that this arrangement was unprofitable to tlio defendants, for the lines of steamers, by competing and lowering the rates of freight, greatly reduced the share coming to the railway. The defendants therefore entered into an agreement with Morgan by which the latter loaned them $250,000, and the former agreed to pro rate with him the through freight from Kew Orleans to Mobile, and to charge all other steamers the tariff rates paid by the public generally. The plaintiffs immediately laid up their steamer and sued for damages, on tlio ground that this prorating with Morgan and refusing to further pro rate with plaintiffs was an illegal combination with Morgan to confer on him an unlawful monopoly and preference.

      Hold — Tliat the acts of defendants were not in contrav-ention of any statute of Louisiana or-any principle of lier jurisprudence; that they might agree or refuse to pro rate through freight with anybody, and the plaintiffs could not complain of a refusal to pro rate with them; and that, as common carriers, in the absence of statutory prohibition, their acts in' the promises were not unlawful.
    Appeal from the Seventh District Court, parish of Orleans. Collens, J.

      Elmore c& Eing, for plaintiffs and appellants, Bradford,,

      Lea (& Finney, for defendants and apjiellees.
    made the following argument in this case before the Supreme Court:
    ORIffIN OR THE SUIT.
    In October, 1805, certain parties purchased the steamer Creole, with five other vessels. They gave $16,000 for the Creole. This vessel was immediately put in the trade between New Orleans and Mobile, touching at the watering places on the lake. She continued in that trade three months and twelve days.
    The earnings of the vessel during that time were $50,821 54. Her expenses were about $8000 per month, not including repairs; showing a net profit of $23,621 54.
    About the ninth of March, 1866, she was put into trade between New Orleans and the watering places across the lake. She continued in that trade until the twenty-eighth of August. She was then withdrawn toi undergo repairs. During that interval her gross earnings were $48,850 50; her expenses about $34,000; showing á clear profit of $14,850.
    In April, I860, the parties who had purchased the Creole and other-vessels formed themselves into a corporation, and transferred the said vessels to the corporation, the transferree assuming all debts, and taking the vessels at the original costs. The present plaintiffs are that corporation. The vessel was laid up for repairs about seven months. About the ninth of March, 1867, she was put into the summer trade between Now Orleans and tlie lake shore places. During this time there had been expended upon the vessel for repairs the sum of $75,590 59.
    In the early part of the summer season of 1867, the Creole was running profitably, until tbe Morgan line commenced reducing tlie fare in July.
    The previous price had been four dollars to all places except Pascagoula, and five dollars to that place. These prices were reduced by ithe Morgan line to fifty cents and one dollar. The object of- this reduction was to starve out all competition against the Morgan line. The result of this summer’s campaign- and race of competition was that at the end of the season the Creole had made over $3000, and the Laura, the competing boat of the Morgan line, lost in running expensesoyer $21,000, exclusive of repairs. Her repairs alone were estimated at'$10,000 or $12,000.
    On the seventeenth of April, 1866, Charles Morgan entered into a contract with the Pontcliartrain Eailroad Company, in which it was stipulated that he “ or his agent shall during the said term (i. e., five years), have tlio right to charge .such prices for carrying freights between New Orleans and Mobile or intermediate ports as they may deem best for the mutual interests of the parties; and the Pontcliartrain Eailroad Company, for its services thus performed, shall he ■entitled to charge and collect from the said Charles Morgan or his agent, instead of detailed freight charged by the tariff as heretofore, one-quarter of the total amount of freight moneys which the said steamers may charge for freights thus mutually carried by the parties hereto.”
    The operation of this contract upon the railroad is very well described by the railroad superintendent at page 227 of the record. Other boats were allowed the same privilege. A very lively ^competition sprung up among them, which led to a reduction of freight from, fifty cents per barrel to fifteen cents, and reduced the share of the railroad from twelve and one-half cents to three and three-fourth cents per barrel. Mr. Morgan did not succeed in driving off his competitors by means of the contract, and both he and the railroad company were doubtless disappointed in the result. A new contract was entered into about the first of November, 1807, in consequence of which, Mr. Pandelly, the superintendent of the railroad, issued to tho-. plaintiffs the iollowing notice:
    “ New Orleans, November 2, 1867. .
    Peter Marey, Esq., Agent Steamer Creole:
    Sib — I am instructed to notify you that on and after tho fifteenth instant all freight transported by this road from and to the steamer Creole will he charged for in accordance with the company’s tariff, a. copy whereof is herewith transmitted.
    Respectfully, Q-. PANDELLY, General Superintendent.”
    A similar notice was sent to tho captain of the Camelia, the only otiier boat competing with the Morgan line.
    The tariff which accompanied these notices increased immensely the rate of freight charged by the road. Instead of three and three-fourtlis cents per barrel, the price was raised to twenty-five cents, which was ten cents more than the whole freight charged by the boats, including the one-fourth previously given to the railroad.
    This last contract between Morgan and the Pontchartrain Railroad' Company, though made about the first of November, 1867, was nob reduced bo writing before the notary until tho twentieth of January,, 1868. By this contract, Mr. Morgan hound himself to lend the railroad company two hundred and fifty thousand dollars, and the contract contained this stipulation :

      “ And the said appearers further declared that it has been and is hereby agreed and stipulated between them, that although the company may hereafter receive and deliver at the proposed new depot on the levee the whole or a part of the freight shipped to or brought by Mr. Morgan’s lake steamers, yet the company’s proportion of the freight earnings of said steamers shall be unchanged during the continuance of the contract entered into between him and the company on the seventeenth day of April, 1866. The company is to charge ail outside boats running- to and from the lake end (except those running, to and from the North Louisiana shore) present tariff rates.”
    The plaintiffs had intended putting the Croolo in the Mobile trade, as she had usually been employed in the winter season, merely touching at the places on the lake shore.
    _ As freight was the principal part of tho Mobile trade, ib was impossible for bile Creole to run under the disadvantages imposed upon her by the railroad, under the unfair discrimination in favor of Morgan, without an inevitable loss of money. The lake trade alone, in the winter, was not sufficient to justify her running- exclusively in that trade, even had there been no discrimination against her. She had been built and fitted up expressly for the navigation between New Orleans and Mobile, and was suited for no other trade. Consequently •when driven irom that trade she had to lie up at New Orleans, and became an almost total loss to her owners.
    The present suit was brought for damages thus incurred.

      MONOPOLY CREATED.

      The defendants deny that the contracts liotween Morgan and tho Pontohartrain Railroad Company were made with tho view of giving Morgan an nnduo preference, or of creating a monopoly. We think the foregoing statement of facts, established indubitably by tho evidence of record, disproves beyond doubt the truthfulness of these denials.
    It is urged by tho defense that there was nothing in the contracts which prevented the Creole running.
    It is true there is no express prohibition to this effect. But things may often be accomplished by indirect means as effectually an by direct. A law prohibiting, under serious penalty, all persons but one from following a certain occupation, would confer as complete a monopoly as a law giving that favored person the exclusive privilege of following that occupation. So persons may ho put under disadvantages in following certain pursuits, with regard to others, which would thereafter render tho occupation utterly impracticable in a business point of view. This result is obtained when it is certain a business can not be followed without serious pecuniary loss. The loss which the iffaintiffs would have incurred by continuing to run the ■Creole was of this character. They could not pursue their business without incurring a penalty too heavy to make the trade profitable. 'The discrimination against tliem operated as a penalty and rendered their further prosecuting their business just as impossible as if it had been expressly prohibited by law, or by the contract between Morgan and the railroad company. The business a man can not follow without inevitable loss is just as much prohibited in every practicable view as if forbidden by imperial decree.
    It is next contended that the plaintiffs should have run the Creole and then brought suits to recover back the money illegally exacted by the railroad company. Suppose the plaintiffs had done so, and at the ■end of each trip had brought suit, and had so continued for years until the legality of tho charges were tested, would not the necessity for this course have been an intolerable grievance? Would not tho lawyers’ fees and the time lost and annoyance experienced have rendered this an inadequate relief, oven if the money wrongfully exacted bad been recovered back ?
    These exactions were not for a single instance. They were demanded for every trip of the boat until the law settled tho right. How long a time would this have probably required, and how much money must have been advanced during the time to have tested this desperate experiment of recovering back money illegally exacted? It is probable it would have required years of time and an outlay of money, tens of thousands of dollars. Is it to he presumed that every person thus injured could have made the necessary advances? The proposition is simply this: A man in the honest pursuit of a lawful business is met by another party who demands of him an illegal exaction daily for permission to carry on his business. Further, suppose he has the power to stop tho business unless the demand is satisfied? Is it possible that the law affords no relief to tho party thus injured hut to pay the illegal demand, and then sue to recover hack the amount so ■ illegally exacted ? It would be a very lame and impotent administration of justice that would sanction any such doctrine.
    Our adversaries allege they never refused to take any freight offered to them for the Creole.
    After Mr. Faudelly’s note, it would have -been a very useless and idle ceremony for tho Creole to have asked permission to continue shipping freight upon the same terms extended to Mr. Morgan. This note was an active violation of the obligations of a common carrier, and no formal putting in default was required. C. C. 1926; R. C. 'O. 1932.
    Does any one suppose that after the notice was given Mr. Pandelly would have delivered freight to the Creole without tho payment of the rates charged ? If any such delusion should be indulged it argues but littlo acquaintance with corporations and their modes of doing business.
    The special defenses set up in the answer are unfounded in law or in reason, and are themselves a tacit admission of the causes oí' action alleged in the petition. After a review of the facts already stated, and many others in the record, wo think no candid mind can fail to como to the conclusion that the contracts between Charles Morgan and the Pontchartrain Railroad Company were intended to confer upon him a monopoly, not only of the railroad, but also of the navigation between New Orleans and Mobile and the intermediate places. That those contracts did so operate, is conclusively shown by the evidence.
    The Creole was driven out of the trade and left to rot at her moorings below New Orleans.
    THE MONOPOLY JUSTIFIED.
    Tho defendants next justify the monopoly created by their acts, by alleging it was “for the promotion of tho interests of tho public as well as the railroad.”
    We do not deny that the railroad company may have made a temporary profit by a sale of the rights of the public to Morgan. It is, however, a sufficient answer to this branch of the allegation, that tho railroad possessed no such power'under its charter. It was authorized-by the Legislature to construct the railroad for the producing “great advantages and benefits to the said city and State generally,” and not for making a pecuniary speculation by soiling exclusive privileges to a particular individual. The sovereign power may, for great public motives, confer exclusive privileges, but no such power is vested in tho Pontchartrain Railroad Company.
    As for the other part of the allegation, we can not conceive how the-public can be benefited by giving Mr. Morgan the exclusive use of the railroad and of tho navigation between New Orleans and Mobile. As-for the manner in which Mr. Morgan used this power, Mr. Perkins has informed us. He states that so soon as tho Creole was driven out of the trade, the Morgan lino raised the rates of freight and passage fare to what it had been before the reductions commenced, which were produced by the competition between the boats. That Mr. Morgan, when once in the undisputed possession of his monopoly, witli all competition overcome, would have used his power to his own best advantage, is ascertain that self-interest is a leading actuating motive in the character of man. To suppose to the contrary would contradict history and all human experience.
    If our adversaries can succeed in establishing that the destruction of all competition by conferring exclusive rights and monopolies on particular individuals is conducive to the public interests, they will certainly be entitled to a patent for their new discovery in political economy. They will convert that into a benefit and a blessing which in all times past has proved a bane to public prosperity.
    By the laws of England, monopolies were regarded and punished as crimes. Blackstone, in his chapter of offenses against public trade, says of monoiiolies: “These had been 'carried to an enormous height in the reign of Queen Elizabeth; and were heavily complained of by Sir Edward Coke in the beginning of the reign of James the First; but were in a great measure remedied by statute 21, Jas. I., C. 3, which -declares such monopolies contrary to law and void, * * * and monopolies are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb.” Yol. IY., chapter 12, page 159.
    That monopolies created by private individuals or corporations, combinations in restraint of trade, or to prevent fair public competition, are unlawful, are against public policy, and are immoral, has been so often declared we regard argument on the point to be unnecessary. We will simply refer to the following authorities: Rev. C. C., 3892, •1895, 1847, sec. 12; Old C. C., 1886, Í889, 1841, sec. 12; lien. Dig., 1007, sec. 6, p. 1008, sec. 9; India Bagging Association v. Hock, 14 A. 168; Pirón v. Back, 10 A. 13; Merchants’ Insurance Company v. Addison, 9 R. 486; 1 Story’s Eq., p. 289, No. 292; Drury v. Cross, 7 Wallace, p. 305; 2 Redfield on Railways, p. 70, note 15; Sanford v. Catawissa & W. & E. R. R. Co., 2 Philadelphia Report, p. 132; Merlin, verbo Monopole, p. 397, sec. 4; Journal du Palais ior 1857, p. 259; 3858, p. 618; 1859, pp. 747,1011.
    We do not understand the defendants seriously to contest the truth •of the general doctrine above laid down. They seek to avoid its effect by establishing certain exceptions to tho general rule, and placing their case within those exceptions.
    They have introduced a. mass of testimony for tho purpose of showing that, in this particular instance of monopoly, tho public have sustained no injury, on the contrary, have been benefited. If they ¡established the facts as attempted, which we deny, it could not avail them in their defence. C. C., article 19: “When to prevent fraud, or -from other motives of public good, tho law declares certain acts void, ■its provisions are not to bo dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good.”
    It might be true, that during the pendency of this suit, or in the incipiency of his monopoly, as at the time the testimony was taken, Mr. Morgan would have carefully avoided arousing public indignation ■by abusing the power given him; but does this prove that he never will, or that monopolies are right and legal?
    The defendants also virtually assume that if the public generally were benefited by tho monopoly that it was immaterial how much the plaintiff's were injured. This was charged by tho judge of the district «court, saying in such a case it was “ damnum absque injuria^ i. e., a loss without injury to the law, or for which the law afforded no relief.
    The question presented is simply this: a party in the pursuit of an honest and lawful trade, without any fault or crime of his own, can be driven from his trade, and all tho property he had necessarily used in that trade ‘destroyed, without any compensation therefor, if in the •opinion of the judge the public suffered no injury thereby. We had ■been taught to believe, under the Constitutions of both the United ■States and of the State, that vested rights could not bo divested, even ■by the sovereign authority, without adequate compensation, and that no man could be deprived of his life, liberty or property without due process.of law. That which the highest sovereignty known in this country could not do, this petty railroad corporation claims the right to do.
    DISCRIMINATIONS BY RAILROADS.
    The defendants contend that railroads may make certain discriminations, and that the one made in favor of Morgan is not illegal.
    The subject of what discriminations may be made by railroads is .admirably discussed in note 15 to page 70 of 2 Redfield on Railways. Tiie following extracts from that note will sufficiently show that the defendants’ case does not come within any of the discriminations that may be legally made:
    Page 72, “ A railway company who advertised for carrying a certain description of goods at a lower, rate of charge, when sent through certain agents, was restrained by injunction from making any such 'reduction.”
    Page 73, “ Railway companies may discriminate by classes, in regard to freight or passengers, but their charges must be uniform to all 'persons.”
    Pages 74, 75, “It was decided that it was competent to a railway company to enter into special agreements, whereby advantages maybe secured to individuals in the carriage of goods upon the railway, where it is made clearly to appear that in entering into such agreements the company have only the interests of the proprietors and the legitimate increase of the profits of the company in view, and that the consideration given to the company in return for the advantages afforded to them is adequate, and the company are willing to afford the same facilities to all others upon the sa/me terms.'1'1

    In making the contract with Morgan, the railroad did not do so only for the interests of the company. Morgan was also to be greatly benefited. It was not made for the purpose of conducting the leg'iti■mate business of the railroad. It was made in consideration of a loan of money. The railroad company expressly bound themselves not to extend the same facilities to others.
    The above principles are taken from both the English and American decisions. Our law, on general principle, as emphatically prohibits these discriminations as the English statutes do. Even in the absence of any express statutes to that effect, the law has been so declared in the case of Sanford v. Catawissa and W. and E. Railroad Company, ■2 Philadelphia R. 132.
    We give the extracts below as conclusive upon the case:
    “The supposed necessity for such provisions in charters granted in this country and in England, proves nothing more than that the lawmakers in both countries were aware of the difficulty of holding large corporations to those common obligations of justice which individuals feel bound to acknowledge without legislative enactment.”
    * * * “ The answer and the evidence show tlm railroad company is willing to carry the express matter of Howard & Co. in their freight trains, which go at less speed than the passenger trains, but that its purpose is to give to the International Express Company, the exclusive privilege of transportation in their passenger trains. The railroad corporation has no right to do this. The power to regulate •the transportation on the road does not carry with it the right to exclude any particular individuals or to grant exclusive privileges to others. Competition is the best protection to the public, and it is against the policy of the law to destroy it by creating a monopoly in any branch of business. It can not be done except by the clearly expressed will of the legislative power. Limited means may perhaps limit the amount of business done by a railroad company, but it can never furnish an excuse for appropriating all its energies to any parti■cular individual. If it possessed this power, it might build up one set of men and destroy others — advance one kind of business and break down another, and might make even religion and politics the tests in the distribution of its favors. Such a power in a railroad corporation might produce evils of the most alarming character. The rights of the people are not subject to any such corporate control.” * * * “A regulation to be valid must operate on all alike. If it deprives any person of the benefits of the road, or grants exclusive privileges to others, it is against law, and void.”
    The only authority our adversaries have been able to quote as favoring their views, is the Fitchburg Railroad Company v. Guge et al., 12 Grey 393.
    This was a case in which the plaintiff complained that ice was charged more freight than bricks. The court will at once perceive that this does not conflict with the foregoing authorities.
    The ease was decided under the statute laws of Massachusetts, and there is nothing in it which warrants the conclusion that railroads may make discriminations for' the purpose of giving certain persons peculiar advantages or monopolies.
    VIOLATION OR CHARTER BY RAILROAD.
    It will be seen by a comparison of the charter of railroad company (section 9, page 292 of record, with the tariff of charges; record, page 52) that the company, in their contract with Morgan, bound themselves to charge other boats a sum far exceeding that allowed by the charter.
    By the charter the railroad was limited to fifty cents per ton. This would be five cents per barrel on flour, allowing ten barrels to the ton. By the tariff demanded of the plaintiffs, flour was twenty-five cents per barrel, an increase of five times the legal rate. Other articles mentioned in the tariff were increased in the same proportion. This was a flagrant violation of the charter, and rendered the contract unlawful.
    Upon this ground alone, independent of what we have previously urged, the plaintiffs are entitled to recover all the damages they sustained in consequence of the contract, and the monopoly it created.
    Having thus, we think, demonstrated the illegality of the contract between the railroad company and Morgan, we shall proceed to consider the liability of the company for the damages caused by their unlawful acts.
    Having disposed of all the objections urged against our right to recover any damages, we will now proceed to consider the amount to which wo are entitled.
    THE MEASURE OR DAMAGES.
    The defendants contend that our suit is one for damages for the violation of a contract either express or implied, and that rules regulating the damages in such cases govern this suit. The judge of the district court charged the jury the rules which govern damages for violation of contracts, and that exemplary damages could not be allowed.
    We, on the contrary, contend that the action is plainly one for a. quasi offense. It is a suit for damages jve have suffered from the fault of the Pontchartrain Railroad Company. C. C. 2294; Rev. C. C. 2315. We charge that the acts of that company which injured us were unlawful; were against public policy, and were immoral.
    Our suit is not for damages for the violation of any express contract- or quasi contract. Both the allegations in the petition and the proof in the record establish a quasi offense. There is no pretense on our part of there having been an express contract in the case. The action then must be either one on quasi contract or one for a quasi offense.

    The distinction between the two is plainly enough marked in the Civil Code.

      “ Quasi contracts are the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person.” C. C. 2272; Revised C. C. 2293.

      There are two principal sources which give rise to quasi contracts: “The transaction of another man’s business, and the payment of a thing not due.” C. C. 2273; Revised C. C. 2294.
    Quasi offenses are thus defined (C. C. 2294; Revised C. C. 2315): “Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it.”
    Pothfer says: “These differ from quasi contracts, inasmuch as the subject of a quasi contract is permitted by law, whereas the fact which forms a delictum is something reprehensible.”
    Are combinations to create monopolies contracts against public policy and immoral contracts lawful, or are they reprehended by the law? We think the question too clear for argument. The charge of the district judge was erroneous, and misled the jury.
    RULES FOR ASSESSING DAMAGES FOR QUASI OFFENSES.
    C. C. 1928, Rev. C. O. 1934, section 3: “Although the general rule is that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss or the privation of pecuniary gain to the party.” * * * * “ In the assessment of damages under this rule, as well as in cases of offenses and quasi offenses and quasi contracts, much discretion must be left to the judge or jury.”
    This rule has been applied by our courts to a very great variety of actions, where the damages could not be established with accuracy. Eor instance, in actions for libel, slander, trespass, all kinds of torts, where a child sues for the killing of the father by public carriers, and such cases generally. In none of these cases could the damages be proved with certainty.
    The courts have further recognized the right to inflict punitory or exemplary damages in a great number of instances, and in some where none could be proved. There never was, perhaps, a case more imperatively calling for exemplary damages than the one now before the court. Corporations chartered for the public generally should be severely taught not to use their franchises for the making of monopolies. We here append a list of some of the cases in which the foregoing principles have been maintained: McG-arcy v. City of Lafayette, 12 R. 678 et seq.j Frank v. Carrollton Railroad Company, 20 An. 25; Fyke & Co. v. C. Doyle & Co., 19 An. 362; Follows v. High, 7 An. 452; Steinson v. Buisson, 17 L. 567; Grant v. McDonogh, 7 An. 447; Hen. Dig. verbo Libel and Slander; Dyke & Aurlburt v. Walker, 3 An. 09.
    Pothier, after slating the rules applicable to damages for violation of contracts, says these principles do not apply to cases of fraud, “for a person who commits a fraud obliges himself) velit nolit, to the reparation of all the injury which it may occasion; for instance, if a person sells me a cow which he knows to be infected with a contagious distemper, and conceals this view from me, such concealment is a fraud on his part which renders him responsible for the damages that I suffer, not only in that particular cow, which is the object of the original obligation, but also in any other cattle to which the distemper is communicated, for it is a fraud of the seller which occasions this damage.” Pothier I. C. 2, art. 3.
    By our Civil Code damages from fraud or quasi offenses are classed together, as being governed by the same rules. C. C. 1928, sec. 3.
    Taking the foregoing rules for our guide in assessing the damages we are entitled to claim, let us apply them to the case to ascertain as nearly as possible the amount of damages due to plaintiffs.

      AMOUNT OE DAMAGES.
    Taking it for granted that the court will award damages sufficiently serious to prevent a repetition of the oifense, and that the plaintiffs will be restored to the undisturbed possession of their legal rights, we will make our calculation upon that basis.
    If we exclude from the calculation an estimate of the loss of gain, although the Civil Code expressly sanctions the claim, and take another basis of calculation, we shall find the following result:
    Interest at eight per cent, on the cost of the Creole, $91,000 for three years.........................................$21,800
    Depreciation on the value of the vessel, ten per cent., per annum for three years.................................... 27,300
    Loss iu summer 1868....................................... 1,080
    Expenses when lying up.................................... 7,300
    Lawyer’s fees.............................................. 2,500
    Time, trouble, etc., attending to suit........................ 2,000
    Amount of loss........................................$61,980
    The plaintiffs know they have been damaged to a very large amount. We ask the Court to award them such damages as will to some extent reimburse them for the very serious losses they have sustained, or tell us plainly that the combination between the defendants and Morgan, and monopoly conferred thereby, was lawful and proper.
   Howe, J.

The plaintiffs alleged themselves to he the owners of the steamboat Creole, a vessel built for the Mobile and lake trade. They charged that the defendants had “entered into an alleged combination with one Charles Morgan to deprive the public, generally of the benefits of said railroad, with the view of conferring on the said Morgan a monopoly of the freight and passengers transported over the said railroad, making an unjust and illegal discrimination in his favor in the price charged by tire railroad for tlie transportation of freight and passengers. Further, that said combination was also intended to confer upon the said Morgan a monopoly of the carrying of freight and passengers by means of the navigation of the waters by vessels running between New Orleans and Mobile, and the various ■places situated on the shores of the lakes.”

That an undue and unlawful preference was made in favor of Morgan, and that by reason of this and the other facts and figures recited in their petition, they have suffered damages in the sum of $100,000.

The defendants answered by a general denial; by a special denial of any unduo preference or monopoly; that the arrangement complained of was made to secure at all seasons the services of an efficient and reliable line of steamers in connection with their terminus on the lake, and was made in good faith and for the promotion of the interest of the public, as well as of themselves.

They denied any notice of plaintiffs’ desire to put the Creole into ■the Mobile trade, any exclusion of her from a connection with the railroad, or any refusal to carry freight for her, and averred that the withdrawal of the Creole from the trade, prior to the commencement of the suit, was a voluntary and prudent retirement from a losing trade during the winter season, and was not productive of any loss or damage to the plaintiffs.

The plaintiffs prayed for a jury of merchants, and the trial before •such jury resulted in a verdict in their favor for the nominal sum of $100, and plaintiffs alone appealed.

There is no proof of any of plaintiffs’ allegations in regard to carriage of passengers, and that branch of their complaint may be ■dismissed.

As to the carriage of freight, it appears that on the seventeenth April, 1866, Morgan entered into a contract with the railroad, by which it was stipulated that he “or his agent shall, during the said term” (i. e., five years), “have the right to charge such prices for carrying freights between New Orleans and Mobile or intermediate ports as they may deem best for the mutual interests of the parties; and the Pontchartrain Railroad Company, for its services thus performed, shall be entitled to charge and collect from the said Charles Morgan or his agent, instead of detailed freight charged by the tariff ns heretofore, one-quarter of the total amount of freight moneys which the said steamers may charge for freights thus mutually carried by the parties hereto.”

No complaint is made of this agreement. The plaintiffs made the .same for their boat, the Creole, and the same was entered into with the steamer Camelia.

The defendants, however, found that this arrangement did not work well for them. The price of freight charged by the Creole, for example, in April, 1866, was fifty cents a barrel, of which the railroad received twelve and one-half cents. During the summer she put her price down to fifteen cents, as did the other steamers, and the railroad got bub three and three-foiu’ths cents. They therefore made a new arrangement, and about the first November, 1867, agreed with Morgan that lie should loan them $250,000, for the purpose of extending their road up the levee and building new depots, and they in turn would continue the arrangement for dividing through freight only with him; charging other steamers the regular tariff rates, as charged to the rest of the public. This stipulation was embodied in the act of mortgage to secure the loan, as follows:

“And the said appearers further declared that it has been and is hereby agreed and stipulated between them, that although the company may hereafter receive and deliver at the proposed new depot on the levee the whole or a part of the freight shipped to or brought by Mr. Morgan’s lake steamers, yet the company’s proportion of the freight earnings of said steamers shall be unchanged during the continuance of the contract entered into between him and the company on the seventeenth day of April, 1866. The company is to charge all outside boats, running to and from the lake end (except those running to and from the north Louisiana shore) present tariff rates.”

On the second of November, 1867, the defendants notified the agent of the Creole that on and after the fifteenth of that month all freight for her would be charged tariff rates. On the tenth of November, 1867, the Creole was laid up, and on the twelfth February following this suit,.with its enormous claim for damages, was begun.

The Creole was sixteen years old at this time. Her cost to plaintiffs was $35,000; her tonnage 396 tons. Morgan placed on the route three steamers; aggregate tonnage, 2800 tons, and cost $585,000.

We do not find that the defendants have joined in the appeal, and the judgment must, therefore, stand unless the plaintiffs are entitled to»have its amount increased in accordance with the claims they make in their petition and the views of the law they have urged in their argument.

• The plaintiffs sue, of course, in enforcement of some supposed legal obligation, and the question at once presents itself whether any such obligation exists. It is not pretended that it springs from any contract or quasi contract or from the operation of the law. It must, therefore, result, if any existence it have, from some offense or quasi offense committed by the defendants — from some injury or neglect on their part. But as neglect is evidently out of the question, we must conclude that the alleged obligation springs from a supposed offense and that the plaintiffs claim under that general principle expressed in article 2315 Eev. C. C., that “ every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

There is no room for doubt at the present time as to the meaning of this language. It is copied literally from the Code Napoleon and has been the subject of numerous decisions and abundant commentary. The phrase “every act” is controlled by the word “fault,” and it results that the party bound must be in fault; that is to say Ms conduct must be, in the general sense of the word, unlawful. No one can be held liable for the regular and prudent exercise of a legal right that belongs to him. He does not commit a fault by making use of a right. Wullus videtur dolo f acere qui suo jure utitur. L. 55, ff. de reg. jur. And ho alone causes a legal inquiry who does what he has not a right to do. Hemo damnum facit, nisi qui id facit quod facers jus non habet. L. 151, ff. de reg. jur. These principles are elementary, and wo merely paraphrase the language of the jurists from G-aius and Paulus down to the latest commentator.

And these principles are especially applicable to the competitions of modern commerce. “ To him that hath shall be given, and from him that hath not shall be taken away even that he hath.” One man by rare powers of combination acquires capital, and by its use builds up a business which dwarfs and finally kills the trade of his less fortunate neighbor. We may pity the weaker merchant, but we can not mulct the stronger one in damages. The great law of “ natural selection ” is something we can not repeal, and the fittest survive,” and al ways will.

Tho case is narrowed, then, to the inquiry whether there was anything unlawful and legally injurious to plaintiffs in the agreement made by the Pontchartrain Railroad Company with Charles Morgan, by which, in the language of their trade, they “prorated” the through freight with him to and from New Orleans and Mobile, and declined to further pro rate with plaintiffs. We can not perceive anything illicit in this agreement. Tho plaintiffs do not pretend that tho railroad charged them, or the public generally, too much, but that it charged Morgan too little. What law did they violate in so doing? No statute of Louisiana has been infringed; none is quoted by appellants except the charter of the company, and that is silent on the subject. No rule of jurisprudence has been violated, so far as we can perceive. The company is a juridical person; its special business is to make contracts in regard to freight, and what is there to prevent it from making an agreement by which a large loan is secured to enable it to extend its road and build its depots, and by which a daily line of fine steamers is secured to connect its short route with the great highways to the East and North? And what is there to prevent its declining to “pro rate” with the Creole and Camelia, when it found that the effect of prorating with several lines was to enable them to engage in the game of competition at the railroad’s expense ?

The plaintiffs never offered to loan the railroad a quarter of a million of dollars, or any other sum; the plaintiffs never offered to establish a daily line of large swift steamers; they call their own vessel the “ poor little Creole.” Why should they complain, then, if the company chooses to avail itself of the great advantages offered by Morgan? But above, all, why should they complain if the railroad refuses to “ pro rate” with them when it is not bound to pro rate with any one?

Tho plaintiffs cite, as in their favor, a number of cases recently decided in the English courts, and particularly those collected in the note 15 to page 70 of volume 2, Redfield on Railways. But these decisions were made under the stringent provisions of railway traffic acts of Parliament, and, as has been remarked by the Supreme Court of Massachusetts, (12 Gray, 398,) “ throw very little light upon questions concerning the general rights and duties of common carriers.” Yet even with the peculiar and stringent provisions of the English legislation on the subject, it lias been there decided that “it is competent to a railroad company to enter into special agreements whereby advantages may be secured to individuals in the carriage of goods, where it is made clearly to appear that in entering into such agreements the company have only the interest of the proprietors and the legitimate increase of the profits of the company in view, and that the consideration given to the company in return for the advantages afforded is adequate, and the company are willing to afford the same facilities to all others upon the same terms.” Redfield on Railways, volume 2, pages 74, 75, citing Nicholson v. G. W. Railway, 5 Com. Bench, N. S. 366.

The better opinion seems to be, that in the absence of special statutes a railway corporation is in the matter of freight contracts governed by the general law of common carriers. Redfield on Railways, volume 2, page 117; Sewell v. Allen, 6 Wend. 335 ; Citizens’ Banff v. Nantucket Steamboat Company, 2 Story 16; Fitchburg Railroad Company v. Gage, 12 Gray, 393.

In the last case, which is directly in point, the Supreme Court of Massachusetts. said of the common law in regard to carriers: “The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the restricted right to charge in each particular case of service a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If for special reasons, in isolated cases, the carrier sees fit’to stipulate for the carriage of goods or merchandise of any 'class for individuals for a certain time, or in certain quantities, for less compensation than what is the usual, necessary and reasonable rate, he may undoubtedly do so, without thereby entitling all other persons and parties to the'same advantage and relief.”

On the whole, we see no reason to increase the judgment in this case.

Judgment affirmed.

Taliaferro, J.,

dissenting. I am of the opinion the plaintiff ought to recover damages. The judge’s charge to the jury, I think, is in regard to an important pioint erroneous, and I make no doubt the jury was misled by it. The Pontchartrain Railroad Company, as its charter shows, is vested with large powers and advantages. It virtually has a monopoly in the transportation, both ways, of all merchandise passing between the lake and New Orleans. Everything entering into the important commerce between that city and Mobile must necessarily go over their road. I consider that this company, endowed by the Legislature with such large privileges, is impliedly bound to the community at large to deal fairly with all who are interested in the extensive business it is engaged in as a public carrier. .This implied obligation has not, in my view, been complied with. I find from the evidence in the record that prior to the fifteenth of November two or three years, a strong competition existed between what is called the Morgan steamers and others on the lake, and among them, the Creole,, belonging to the towboat company, the plaintiffs in this case. I find it in proof that up to the time mentioned- the Creole withstood this competition, and with less detriment therefrom than the boats of the Morgan line. It is shown that the company published a tariff of prices for the carriage of goods, to go into operation on the fifteenth of November, 1867. All were required to pay the prices so fixed, who did not ship to and from the lake terminus of the railroad by the Morgan line of steamers; but those who did ship by the Morgan line were not required to pay them, and were charged vastly less for their transportation. The discrimination was very large, and evidently intended by the company to enable the Morgan line of steamers to grasp the entire carrying trade through the lakes, by excluding the boats of the plaintiff, an object which the evidence satisfies me the Morgan steamers had previously been unablo to do by fair competition. I believe it to be against equity and conscience to give, as this company has avowedly done, undue preferences to one party to injure another. Not even the idea that circumstances may justify the violation of individual right to promote the general good, can be interposed in this case. The evidence is that the prices of transportation by the Morgan steamers were raised shortly after they got rid of the competition that had been kept up previously by the boats of the plaintiffs, a result naturally and certainly to be expected. I think this a case in which exemplary damages should be awarded to redress a private wrong, and to vindicate public justice.

A judgment rendered recently in the State of Maine upon a state of facts very similar to those presented in this case sustains the views I have expressed. The case in Maine was this: The defendant, a railroad company, whose charter authorized its directors to make rules for the transportation of freight and passengers, one of which was that freight should be carried only on freight trains, contracted with the Eastern Express Company to give the latter a certain space in the baggage car attached to its passenger trains for the carriage of their goods, and agreed not to let a similar space in such a car to any other express carrier during the continuance of the contract. Plaintiff, another express company, offered packages to be transported upon defendant’s passenger trains, when and where the Eastern Express Company loaded their freight, and defendant refused to receive them. Held, that x>laintiff might maintain an action of damages for such refusal.” American Law Review for April, 1871, page 483.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    Mr. W. W. King, one of the counsel for plaintiffs and appellants,

      No. 3494.
    State ex rel. John W. Hillman v. Antoine Dubuclet, State Treasurer.
    The writ of mandamus can not bo invoked by a creditor of tko Stato to compel the State Treasurer to make a certain distribution of funds, not yet in his hands, as they may be received by him.
    An order of court directing the Treasurer to register and pay warrants drawn on the State treasury in the order of registration, with funds thereafter received, is an abuse of tbe judicial power, and null and void.
    A mandamus will only lie in such a case to compel the Treasurer to pay demands on the treasury when the funds are in Ins hands.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      John B. Howard, for plaintiff and appellee. Samuel B. Blanc, for appellant.
   Wyly, J.

The motion to dismiss the Appeal is refused.

The relator, alleging that he is the holder of $67,000 in State warrants on the general fund, avers that prior to this suit he “has brought suit both by injunction and by mandamus to retain money in the State treasury” to pay him; that ho again made demand upon the Stato Treasurer, requesting- him, “Antoine Dubuclet, to register the warrants of relatoras aforesaid, to the amount of $67,000, in a book in his office, to the end that the warrants of the relator may be accordingly paid out of the first moneys coming into the treasury to the credit of the general fund; but the said Treasurer, Antoine Dubuclet, refused the request of relator, and refused to register the warrants of relator without any lawful excuse, and in the denial of the right of the relator, to his great danger, loss and injury, from which he had no relief by ordinary process of law,” and therefore prayed for a writ of mandamus.

No answer seems to have been filed. The court, however, gave judgment, rendering the mandamus which was issued .peremptory, commanding A. Dubuclet, Stato Treasurer, “ forthwith to register the warrants of the relator, and before registering any other warrants ; and, further, that said respondent, A. Dubuclet, State Treasurer, pay moneys only on registered warrants, and that he pay said registered warrants in the order and according to the date of such registry, and that he forthwith pay the warrants of the relator in the order in which they are registered.” ,

From this judgment the State Treasurer has not appealed.

The appellant is Jules A. Blanc, who alleges that he is the holder of $6721 in State warrants, and is aggrieved because of the preference given the relator over him and other holders of warrants, and because said judgment is unauthorized by law.

It is very evident from the allegations of the petition that no ground whatever is shown for the mandamus. It is not pretended that the State Treasurer had funds at the time he refused to pay the warrants presented by the relator. It was no part of the duty of the Treasurer to detain funds which might come into his hands in the future in order to pay the relator, in preference to others presenting warrants on the general fund. Revised Statutes of 1870, section 3784.

The fact that the relator presented his warrants once or twice when there was no money in the treasury, would give him no advantage over others when there might bo funds.

A mandamus will not lie to compel the State Treasurer to make a certain distribution of money not yet received by him. Until he has received the money and refused to make the application thereof, as required by law, there is no failure of duty. And it is only the failure of a ministerial duty that justifies the issuance of the writ of mandamus. The district judge was wholly unauthorized to prescribe rules for the administration of the State Treasury, and to enforce them by mandamus.

The relator showed no ground for the issuance of the writ; he used the process of the court for an illegal purpose, and we regret we are not authorized to impose on him exemplary damages.

As to the State Treasurer, we deem it proper to remark that it is strange, to say the least, that he yielded so tamely, and without the slightest resistance to this unwarrantable proceeding against him.

Let the judgment appealed from be annulled; let the mandamus be disallowed, and the relator’s petition be dismissed, with costs of both courts.


author: Howell, J.

text:
    No. 2423.
    C. A. & L. L. Conrad v. E. W. Burbank.
    A judgment may be rendered, on motion, at any time after suit is instituted on suob items of an account as are admitted to be correct by the defendant, reserving the right of the defendant to contest items not admitted. In such a case, legal intorest may bo recovered on the items admitted from the date of their admission.
    Appeals from the Fifth District Court, parish of Orleans. Leavmont, J.

      C. M. Conrad c& Son, for plaintiffs and appellees. Fellows <& Mills, for defendant and appellant.
   Howell, J.

Two questions are presented in this proceeding, to wit:

First — Can a judgment b© rendered, on motion, for the amount of the original demand admitted to be due, reserving to plaintiffs the right to prosecute their claim for the balance 9

This is no longer an open question. The amount admitted is not a matter of dispute, and the only issue to be tried is the sum not admitted. The plaintiff is at any time after the admission is made, entitled to a decree for such amount as confessed. The fact that the admission is made upon an account consisting of various items, no one or more of which are specially admitted to be due and correct, does not affect the question. The defendant is supposed to have presented his claim and rights in the most favorable light to himself. 4 R. 144; 5 R. 447; 11 An. 746.

Second — Can interest be allowed on the amount admitted when it is not specially included ?

This, top, has been settled affirmatively. 4 R. 144; 2 An. 441. By the law all debts bear interest at the rate of five per cent, from the time they become due, uniess otherwise stipulated. ]$. S., § 1883. To be relieved from payment of this interest, it was incumbent on defendant to allege a tender made in accordance with law. C. P. 404, 407, 413, 415; R. C. C. 2167,2168. The vague allegation that he “tendered to plaintiffs the balance of the amount due to them by said accounts, which said plaintiffs refused to receive unless respondent would accept from them au-eceipt in a prescribed form,” does not show how the' tender was made, nor relieve defendant from liability for interest.

Judgment affirmed.


text:
    No. 6758.
    P. H. Willard, Agent, v. G. Lugenbuhl and F. Ecrot.
    A plaintiff who brings suit in bis own name as agent is bound to disclose the name and residence of liis principal. The fact that a defendant has signed a release bond as security in an attachment suit wherein the plaintiff appeared as agent without disclosing the name of his principal, does not estop him from excepting to the action, on the ground that the plaintiff, as agent, failed to disclose the name of his principal.
    Appeals from the Sixth District Court, parish of Orleans. Howell, J.

      Face c& Foster, for plaintiff and appellee. F. K. Washington, on the same side. F. Filleul, for defendants and appellants.
   Wyly, J.

The plaintiff, styling himself agent, without disclosing the name of his principal, brings this suit against G. Lugenbuhl as surety on a release bond subscribed by him, and also sues to annul the sale of certain property made by said Lugenbuhl to F. Ecrot, charging that this sale was fraudulent and simulated, and was contracted for the 'purPose of enabling the said Lugenbuhl to put his property beyond the reach of the plaintiff, his creditor.

The defendants excepted to the action because the plaintiff did no-t disclose in his petition for whom he was suing as agent; that being non persona juris he is neither entitled to an action in his name individually nor in the name of a principal unknown to the tribunal, and therefore not able to possess any active or passive rights.”

The exception was overruled, and on final hearing the court gave judgment for the plaintiff. The defendants appeal.

We think the court erred in dismissing the exception of the defendants and allowing the plaintiff to stand in judgment without disclosing the name of the party for whom he was suing. A party may sue as principal or he may sue as a fiduciary; hut if he ajipears iu the latter capacity he must disclose the name of the real plaintiff in the action. The petition must mention the name, surname and place of residence of the plaintiff. C. P. 172.

But it is urged that the defendant, Lugenbubl, ought not to complain of tbe manner of plaintiff’s appearance, because be signed tbe release bond as security in an attachment suit in which tbe plaintiff appeared, as be now appears, without mentioning tbe name of tbe party for whom bo is agent.

This is no reason why tbe name of tbe owner of tbe claim sought to be enforced should be withheld. An irregularity in one action will not justify it in another.

The defendants are sued on the bond signed by Lugenbubl as security and judgment is prayed against them in favor of tbe plaintiff as agent.

They ought to be informed in tbe petition of tbe name of tbe party summoning them to trial.

Let tbe judgment appealed from be annulled and let the suit be dismissed at tbe costs of the petitioner in both'courts.

Mr. Justice Howell is recused in this case.


text:
    No. 3614.
    State ex rel. N. A. Robinson, District Attorney, and M. D. Edmondson v. William W. McNeely.
    A commission issued by tlio Governor appointing a person to an office not vacant, is ait absolute nullity and confers no title whatever in the appointee to the office.
    'Xhe Governor has no power under the Constitution to destitute a constitutional officer of his office. Such offices can only bo vacatod in tlio manner pointed out by tlio Constitution and tlio laws.
    Appeal from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.

      Pennee & Pelden, for relators and appellees. Jctelc & Pierson, G. Ghaplin & Son and <7. P. Smith, for defendant and appellant.
   Wyly, J.

The relator, M. D. Edmondson, proceeding under tbe intrusion act, complains that tbe defendant has intruded into tbe office of parish judge of tbe parish of Sabine, which office belongs to tbe relator by virtue of Ms election at the November election of 1870 and to which be was duly commissioned and qualified.

Tbe defendant’s title to the office is tbe appointment and commission from tbe Governor, dated seventh March, 1871.

Tbe court gave judgment for tbe relator, declaring him the lawful incumbent of the office. The defendant appeals.

There is no doubt that tbe relator, M. D. Edmondson, is tbe lawful incumbent of tbe office in question. He was duly elected and qualified, receiving bis commission from tbe Governor, dated thirty-first December, 1870.

It is not pretended that lie lias resigned or has been removed by-address or impeachment. It appears as a matter of fact that the commission to the defendant was issued by the Governor in error, the Governor having been led to suppose that the plaintiff had left the State permanently and thus abandoned his office.

It is well settled that a constitutional officer can not bo destituted of Ms office except in the manner provided in tho Constitution, and that the appointment to an office not vacant gives no title thereto.

It results, therefore, that the appointment of the defendant on the seventh March, 1871, did not divest the lawful incumbent of his title to the office by virtue of his commission issued December 31, 1870: State ex rel. Downes v. Towne, 21 An. 490.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 2482
    Robert P. Smith v. The City of New Orleans.
    If tlie record of appeal contains no note of tlie evidence offered in tho court below, the . appellate court will presume that the court a qua proceeded upon proper evidence.
    Tti reference.to the question of bills of credit, the doctrine announced in tho caso of Smith v. City of New Orleans, 23 An., page 5, is affirmed by this decision.
    Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.

      Alexander Walker, for plaintiff and appellee. J. R. Beckwith, City Attorney, for defendant.
   Taliaferro, J.

The plaintiff brings this suit to recover from tlie defendant $600, being the amount of thirty bills or notes of the currency known as “city money,” with interest from judicial demand. The defendant answers:

First — That the notes sued on are bills of credit, which the city, by the Constitution of the United States, was prohibited from issuing.
Second — The making and circulating these notes or bills of credit were in express violation of certain acts of the General Assembly of Louisiana, and therefore void.

The defendant offers another objection, which he contends must prove fatal to the plaintiff’s case, and that is that the notes sued upon were not offered in evidence on the trial, and that the record does not show that any evidence was introduced.

The plaintiff' had judgment, and the defendant appealed.

This court has held that where it finds no note of evidence in the record, it will presume tho court a qua proceeded upon proper evidence. 23 An., page —. This case presents tho same issues as that of the same plaintiff v. The City of New Orleans, 23 An., page 5.

For tho reasons assigned for the decree in that case, it is ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


author: Ludeling, C. J.

text:
    No. 2388
    John Bietry v. City of New Orleans.
    Contracts legally entered into have tlie effect of laws on ilie parties wlio liave formed tkem.
    An agreement made botwoon tbo city of New Orleans on the one sido and a contractor on tlio other, whereby tho city reserves tho right to discontinue and annul the contract, whenever it shall appear that tho contractor has failed to comply with the terms and conditions of the contract, may be annulled and set aside by the city without putting the contracting party in dofault, if it be shown that ho has failed to comply with tho terms and conditions imposed upon him by tho contract.
    Appeal from tho Sixth District Court, parish of Orleans. Cooley,

      J. B. Ootion, for plaintiff and appellee. George 8. Lacey, City-Attorney, for defendant and appellant.
   Ludeling, C. J.

The plaintiff alleges that he entered into three contracts with the city of New Orleans to clean and repair certain streets in the fourth, fifth and sixth wards of the city (comprising the whole of the second district) for throe years from the first of September, 1866, agreeably to tlie specifications contained in tho agreement; that he was to receive, per annum, for the fourth ward' $6600; for the fifth ward $7550, and for the sixth ward $6740, and that by reason of the violation of'tho contract by tbe city the plaintiff abandoned the work ” on the eighteenth day of February, 1867. It is further alleged that at the time this suit was commenced, there was due to the plaintiff by tbo city of New Orleans the sum of $3953 50, being made up of tho amount then duo under the contracts, and tho ten per centum retained by the city, on payments already made, $5831 21 on account of loss on mules, carts, etc., purchased by petitioner to carry on tbe contracts, and $24,000 damages, occasioned by loss of profits, which plaintiff would havo realized.

The answer admits tho contracts, but represents that the plaintiff’ failed in every respect to comply with the terms and specifications thereof; that the contractor was executing the contracts in a manner which dissatisfied the Council, and that in conformity with ono of the stipulations of the contracts the Council annulled the agreement -without indemnity.

There was judgment in favor of the plaintiff for $20,497 14, and the city has appealed.

The evidence shows that on or about the eighteenth of February a demand of the sum, alleged to be duo for work done, was made on the Mayor of the city by a notary, for tho purpose of putting the city in mora, and that the city refusing to pay, the plaintiff abandoned Ms contracts. The evidence further shows that shortly thereafter the City Council annulled the contracts with the petitioner, on tho ground that he had failed to execute the contracts in accordance with the terms and specifications of said contracts. It becomes necessary, therefore, to determine the question of fact, did the plaintiff execute the contracts in accordance with the terms and specifications thereof?

There is a great deal of conflicting testimony in the case; but after a careful examination of the evidence, we are convinced that the weight of evidence preponderates in favor of the defendant.

L. II. Pilié, a witness for plaintiff, says: “I have been employed in the city surveyor’s department for about thirty years, either as deputy or chief. In that capacity I have had daily communication with the contractors for that department, and am, therefore, able to say when a contractor does his duty under his contract.”

Question. “ As surveyor, then, of the city of New Orleans, were you satisfied with the condition in which he kept these streets ? ”

Answer. ‘‘ Sometimes I was.”

Question. “ I mean at the time this rainy spell set in ? ”

Answer. “No; as I said already, the unpaved streets back there were in bad order.”

James McClosky, a witness for defendant, says : “I was chairman of the Committee of Streets and Landings of the Upper Board. It was my duty as chairman to examine the condition of the streets and the work of the contractors, to see if they performed their duties. * * I went two or three times over this district when I heard the complaints, and the time when I made the closest examination was when I went with Pilié and McKnight. There was, at the time I made these examinations, complaints of the work of all the contractors from all parts of the city. These wards, the fourth, fifth and sixth, were all in a very bad condition, and particularly the back parts of them. The gutters were filled up with mud; the middle of the streets were in big holes; the gutters of some of the paved streets looked as though they had not been touched for a long time. * * Some of the streets we had to go round — driver said we could not go through. The general appearance of the streets were bad. They looked as if they had not been worked for a long time. In some of the paved streets there were piles of dirt that had been taken out of the gutters and had not been removed, and grass was growing on them. I reported these facts to the Council, and refused to sign the certificates for the work done. * * It is within my knowledge that the contract of Bietry with the city was canceled by the Common Council, because the contract was not well done.”

H. T. Sturken says he was a member of the Committee on Streets ■and Landings when Bietry had the contracts to clean the streets, etc. Says he was a member of the Common Council when the contract was annulled, and that he voted to annul it. He testifies that “ there was at that time a general complaint from all parts of the city as to the condition of tlie back portion of the city, and tlie manner in wbicb tlie contracts were carried ont.” #

J. B. Prague testified that he was chairman of the Committee of Streets and Landings of the Board of Assistant Aldermen; that the Committee on Streets and Landings refused to approve the certificates for work because the contractor had failed to comply with the terms of his contract, and that they ascertained the fact by examination, and that he reported the facts after examination to the Common Council. He states that some objections were made to the report in the Council, and the matter was proposed to be referred back to the Committee on Streets and Landings, but he moved that the matter be referred to a special committee to be appointed by the board; which was done. This committee was composed of Messrs. Kaiser, Montamat, Sturken and himself; that the committee reported that the streets were in a bad condition, etc., and the report was approved by the Council. That about that time there was a change of administration, and a new Committee of Streets and Landings were appointed, who refused to approve the certificates, and the City Council annulled the contracts on account ■of the failure of Bietry to perform the duties imposed by the stipulations of the contracts.

Under this state of facts, we think the City Council had tlie right to ■annul the contract, without putting the plaintiff in default, and without indemnity, under the following clause, which forms a part of the -contracts between the parties, to-wit:

In all contracts adjudicated by the Controller, one of the conditions shall be, (to be stated by him at the time of the adjudication, and inserted in the specifications, if any.be published), that in ease of failure by the contractor to begin or finish the work within the period fixed, or in case the Oonneil be dissatisfied with the manner in which the work is being executed, the Council shall have the right to annul the said contract without putting the contractor in default, and without applying to a court of justice to annul the same, and without indemnity; and, also, that in case the contractor shall at any time abandon any work or undertaking, or not finish and complete the same in conformity with his contract, such contractor shall forfeit all claim he may have for any work or undertaking done by him up to the date of such abandonment, and such sum as may have been deposited in the treasury by such contractor, and the city shall be hereby discharged and released from ■any and all liability therefor ; and that in case such work or undertaking be resold, the contractor and his surety or securities shall be held and bound in solddo to pay unto the city all such loss or difference between the price at which such contractor originally contracted to perform the work or undertaking and the price at which it may be adjudicated at a resale or readjudication.”

These stringent provisions were stipulated in view of the public interests, and there is no law which forbids their enforcement, and having assented to them they are the laws unto the parties to the contract. “Agreements legally entered into have the effect of laws on those who have formed them.” C. C., article 1895; 14 An. 296; 19 An. 7; C. C. 2113, 2116.

It is’ therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of the defendant rejecting the plaintiff’s demand, with costs of both courts.

Rehearing refused.


text:
    No. 2310.
    Succession of George Allan v. Jean B. Couret et als.
    Objections to tbo legality of notice of seizure in a proceeding under an order of seizure and sale, must be urged mtloin Ave years from tbe date of the service of such notice. Act of tenth of March, 1834, page 123.
    Appeal from the Seventh District Court, parish of Orleans. Collens, J.

      James McConnell and Waller Rogers, for appellants. F. W. Huntington, C. Roselius <& Alfred Phillips, F. T. Fellows, Race, Foster <& F. T. Merriele, and Fellows c& Mills, for appellees.
   Ludeling, C. J.

On the twenty-first of October, 1856, an order of seizure and sale was obtained against the property of George Allan. On the next day following the notice required by article 735 of the Code of Practice was served upon George Allan personally; but for some reason not explained in the record, no seizure was made of the property until January, 1858. A notice of seigure was served on the wife of said Allan on the eleventh February, 1858, the said Allan being side in the ¡house at the time. The property was publicly adjudicated on the twentieth March, 1858, after due advertisements, to James M. Forgay and Henry Bier, who subsequently sold it to J. B. Couret and J. C. Stevenson, the defendants in this cause.

On the twenty-fourth of 'January, 1868, this suit was instituted to set aside the sheriff’s sale, on the ground that there was no legal service of the notice of seizure, because the defendant, George Allan, was, at the time of the service of the notice of seizure, an interdicted person, and as such incompetent to receive such notice.

Conceding, for the sake of argument, that this notice of seizure is required by law, the improper service or lack of service of the notice of seizure was an informality, which has been cured by the lapse of five years under the act of tenth March, 1834, section 4, page 123. The plea of prescription of five years must be sustained.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.


author: Wtlt, J.

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    No. 3386.
    Succession of John M. Nelson.—Opposition of Jane Haygood to Tableau of Administrator.
    Legal or tacit mortgages allowed by law are inoperative against third persons nnloss they have been recorded in the manner provided by law. Constitution, article 123, act No. 95 of 1869; 32 An. 278.
    Article 123 of the Constitution, and the act No. 95 of 1869 to enforce it, do not impair the obligations of contracts. These provisions of the Constitution and the laws of the St&te on the subject are not therefore in conflict with section ten of article one of the Constitution of the United States.
    Appeal from, the Parish Court of Jefferson. William Kern, Parish Judge.

      A. Gommamdeur and Jlf. Grivot, for Mrs. Nelson, administratrix, appellee. G. It. Sail, for opponent and appellant.
   Wtlt, J.

Mrs. Eliza J. Nelson, widow of John M. Nelson and administratrix of his succession, filed her account and placed herself as a creditor for the amount of $4402 50 for paraphernal funds received by her husband, claiming the rank of a mortgage creditor for said amount.

Mrs. Jane Haygood, an ordinary creditor, opposed this item of the account, alleging that “it is not a debt due by the succession of John M. Nelson which can be recovered as an ordinary or privilege claim,, and the succession of Nelson owes no such amount.”

The court recognized Mrs. Nelson as a mortgage creditor for the amount claimed by her, and dismissed the opposition. The opponent has appealed.

The facts that establish the claim of Mrs. Nelson are admitted. The only issue is whether or not Mrs. Nelson is entitled to the rank of a mortgage creditor, having failed to record her tacit mortgage prior to the first of January, 1870.

Article 123 of the Constitution of 1863 declares that “the General Assembly shall provide for the protection of the rights of married, women to their dotal and paraphernal property, and for the registration of the same; but no mortgage or privilege shall hereafter effect-third parties unless recorded in the parish where the property to be effected is situated. The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first day of January, eighteen hundred and seventy unless recorded. The General Assembly shall provide by law for the registration of all mortgages and privileges.”

On the eighth of March, 1869, an act was passed to carry into effect this article and to provide for recording mortgages and privileges, being act No. 95 of the acts of 1869.

In Taylor et al. v. Ealer, 22 An. 278, a case directly in point, this court said: “By operation of the Constitution and the act of 1869,, the tacit mortgage may be preserved if recorded before the first of January, 1870, in the manner directed by law. A failure to inscribe it is fatal. The inscription was within the power of the plaintiff, whose interest it was to make it, and she has no just ground of complaint if, through negligence or ignorance, she has failed to preserve a preference conferred on her by law, in derogation of common right.”

But it is contended that if the tacit mortgage of the surviving widow is lost by reason of article 123 of the Constitution of 1868 and act No. 95 of the acts of 1869, the obligation of a contract has been violated by the State, in contravention of section ten of article one of the Constitution of the United States. To this proposition we can not assent. The obligation of the husband to restore the paraphernal funds he has received from his wife, based upon a quasi contract, is in no manner impaired by article 123 of the Constitution and act No. 95 of the acts of 1869. The law requiring the registry of the tacit mortgages accorded by the civil law, appertains to the remedy.

“Although there is a distinction,” says Justice Story, “between the obligation of a contract and a remedy upon it, yet if there are certain remedies existing at the time when it is made, all of which are after-wards wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress, such an abolition of all remedies, operating in presentí, is also an impairing of the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt that the Legislature may vary the nature and extent of remedies, so always that some substantive remedy be in fact left. Nor can it be doubted that the Legislature may prescribe the times and modes in which remedies may be pursued, and bar suits not brought within such periods and not pursued in such modes. Statutes of limitation are of this nature, and have never been supposed to destroy the obligation of contracts, but to prescribe the times within which that obligation may be enforced by a suit, and in default to deem it either satisfied or abandoned. The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself, and operates anterior to the time of perforipance. The remedy acts upon the broken contract, and enforces a pre-existing obligation.” Story on the Constitution, 236, section 1385.

The law requiring the registration of tacit mortgages within the time limited, is but a modification of the remedy, and does not impair the obligations of contracts. The State had the right to require all existing mortgages and privileges to be recorded, and to fix the period in which '< the registry shall be made. In doing this the law in no manner assails the inviolability of contracts protected by the Constitution of the United States.

In Jackson v. Lampkire, 3 Pet. 290, the Supreme Court of the United States said: “It is -witliin the undoubted power of State Legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligations of contracts. Such too is the power to pass acts of limitation, and their effect. Reason and sound policy have led to the general adoption of laws of both descriptions, and their validity can not be questioned.”

It is therefore ordered that the judgment appealed from be amended by striking out that part allowing Mrs. Eliza J. Nelson the rank of a mortgage creditor. As thus amended, let it be affirmed, allowing her claim as an ordinary debt on the tableau. It is further ordered that appellee pay costs of appeal.


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    No. 3625.
    Corporation of Amite City v. Desire Clementz.
    A corporation which is invested with the power of assessing taxes and licenses, has the right to enforce their payment by judicial proceedings.
    Appeal from the Parish Court of the parish of Tangipahoa. Bradley, Parish Judge.

      William Duncan, for plaintiff and appellant. T. c6 J. milis, for defendant and appellee.
   Taliaferro, J.

This suit was instituted against the defendant to compel him to pay fifty dollars, the amount required as a license from each keeper of a coffee house, or retailer of liquors or ardent spirits, within the corporate limits of the town.

An exception was filed on the part of the defendant setting forth that the plaintiff discloses no legal cause of action. That a tax, if legitimate, is not the legal subject of a suit, as it does not originate the relation of creditor and debtor, and can not pass into a judgment. Lastly, that the corporation suing is not a legal corporation, it being the creature of the Legislature of the insurgent State government of 1861 and 1862. The defendant had judgment in his favor, and the plaintiff has appealed.

There is no force in the defense. The corporation was vested with the right to impose the tax or license, and consequently has the right to enforce its payment by legal proceedings. The objection to the authority from whence the corporation exists is obviated by articles 148 and 149 of the Constitution of 1868.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be annulled, avoided and reversed. It is further ordered that the plaintiff have judgment against the defendant for the sum of fifty dollars and all costs of suit.


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    No. 3526.
    P. Greuling v. City of New Orleans.
    Evidence offered and received without objection, showing that an account against the city of Eew Orleans has been approved by one of the finance committees in accordance with the requirements of the ordinances of the city, must, in the absence of countervailing proof, be taken as establishing the demand.
    Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.

      Frank BT. Butler, for plaintiff and appellee. George S. Baeey, City Attorney, for defendant and appellant.
   Howell, J.

The.plaintiff, as assignee, sues for certain fees alleged to be due the coroner of one of the municipal divisions of the city of New Orleans, as shown by an account approved September 2, 1869, by the Chairman of the Finance- Committees of the Common Council and registered by the dex>uty controller.

The question submitted by the city attorney is, whether or not plaintiff’s statement or account is shown to have been verified according to the municipal ordinances and in a way and manner to constitute a recognized indebtedness on the part of the city.

We have not before us the ordinances of the city in relation to this matter, hut the testimony of one of the chairmen of the Finance Committees and the deputy controller is in the record without objection, and by them it is asserted that the ordinances on the subject were complied with, and that a document or account approved and registered as this was is equivalent to a certificate of indebtedness by the city. Without countervailing proof this must be accexited as sufficient.

Judgment affirmed.


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    No. 2356.
    William Massey v. Michael Finch.
    Tlie statement in an act of sale of real estate that a certain judicial mortgage “still stands • against the property,” does not create a personal obligation on the purchaser'to pay it. In such a case the judicial mortgage creditor must resort to the hypothecary action to enforce payment.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      Mornor <& Benedict, for plaintiff and appellee. .George L. Bright, for defendant and appellant.
   Taliaferro, J.

The defendant being third possessor of mortgaged Xiroperty, is sought by this action to he held x:>ersonally bound for the Xiayment of a judgment hearing judicial mortgage upon the property purchased by him, and subject to that mortgage. Judgment was rendered against the defendant, and he has appealed.

The facts of the case are, that in the year 1860 the xilaintiff obtained a judgment against Murth Phelan and William Phelan, m soUdo, for $263 99, with interest and costs, which judgment was recorded in May, 1866. Murth Phelan having died, his son, James Phelan, sueceedecl as Ms sole heir, and in October, 1867, he sold to the defendant, Finch, certain real estate in New Orleans, which at the time of the sale was subject to the plaintiff’s judicial mortgage, predicated upon the judgment he obtained against the vendor’s ancestor in 1860. It appears by the act of sale that Finch paid part of the price in cash, part by releasing a judgment he held against the seller for $2340, and by giving his notes, secured by mortgage on the property purchased. The recital in the act of sale of the mortgages on the property, concludes by declaring that “the mortgage thirdly described in favor of William Massey against W. and Murth Phelan, still stands against the property, and this sale is made and accepted with said encumbrance.”

We do not understand this declaration as importing an obligation on the purchaser to pay and discharge the debt for which the mortgage subsists. He has not assumed to pay it as part of the price, nor in any other maimer. The plaintiff has the hypothecary right to require him to pay the debt or surrender the property, but he has not by the contract the right to compel him by a personal action to discharge the debt.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff paying costs in both courts.


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    No. 3623.
    State of Louisiana v. Warren Denkins.
    In a criminal trial on the charge of shooting at another, who was in pursuit of the accused, evidence showing that the person shot at was the sheriff of the parish at the time, is admissible to show that such person was in the peace of the State at the time of the shooting.
    Appeal from the Eighteenth Judicial District Court, parish of Webster. WatMns, J.

      Thomas E. Paxton, District Attorney, for the State. G. W. TompMis and A. B. George, for defendant and appellant.
   Taliaferro, J.

The defendant having been indicted under the provisions of the seven hundred and ninety-second section of the Revised Statutes for an assault upon one G-. W. Warren, by shooting at him, was found guilty, and from the sentence of the court thereon, of eight months’ imprisonment in the penitentiary, has taken this appeal.

The grounds on which the defendant asks a reversal of the judgment, and that the case be remanded for a new trial, are set out in a bill of exceptions to the ruling of the court in regard to the admission of evidence to skow’that Warren, at the time of the commission of the. offense, was sheriff of the parish of Webster, and acting officially in the discharge of his duties in that capacity.

Prom the statement of facts appearing in the record, it appears that the defendant shot at Warren while the latter, with a company of men, was in pursuit of and in the act of arresting him for the sux>posed commission of an act of felony; that a hue and cry had been raised, and that the sheriff and others were in pursuit of the defendant, endeavoring to make his escape, and that no warrant had been issued for his arrest.

The points made by the defendant are, that as he was not indicted for shooting at an officer, a different offense from the one charged, evidence was not admissible to show that G-. W. Warren was a public officer; and that the officer having no warrant or authority, and'no-felony having been committed, there was nothing to justify pursuit by hue and cry, endangering the life of the defendant.

The court admitted the evidence for the purpose of enabling the prosecution to show that at the time the offense charged was committed, Warren was “in the peace of the State, and in the discharge of his, duties as a public officer.” Archbold, vol. 1, p. 91; 6 An. 286, State v. Stouderman. We think this ruling correct.

It is therefore ordered that the judgment of the district court be affirmed, with costs.


author: Taliaeerro, J.

text:
    No. 3562.
    Thomas D. Miller v. Marmiche and Wife.
    A power of attorney which gives the agent the authority “to cite and appear,” must be construed as conferring upon the agent the power to prosecute and defend suits which may be brought by or against his principal. A sale of property under a judicial proceeding carried on contradictorily with the agent who holds such a power of attorney is not therefore void for want of authority in the agent to represent his principal in the litigation.
    Appeal from the Fifth District Court, parish of Orleans. Leaumont, J.

      TU. Mcvrsoudet, for plaintiff and appellee. Saucier & MicMnarcl, for defendants and appellants.
   Taliaeerro, J.

The controversy here presented grows out of an effort on the part of the plaintiff to compel one Dechamps, a purchaser of certain property belonging to defendants, and which was mortgaged to plaintiff and sold under an order of seizure and sale, to pay the price of adjudication.

The property was adjudicated to Dechamps, who paid $2566 67 in cash, being one-third of the sum bid, but he refused to comply with the other terms of sale by executing his notes for the payment of the remainder, alleging in his answer to the rule taken against him that the proceedings under which the order of seizure and sale issued are null and void, and the sale conferred no valid title to him of the property; that the nullity arises from the fact that the defendants against whom this order of seizure and sale was obtained are absentees, and that the proceedings were not carried on contradictorily with them; that no person legally authorized to represent the defendants in the defense of the suit against them appeared on their behalf. The rule was made absolute, and the defendants in rule ordered to comply fully with the terms of sale. From this judgment the defendants appealed, and pray that the judgment of the lower court be reversed and the sheriff ordered to restore the sum paid him as die cash part of the price bid for the property.

The only question presented is, had Dueros, the attorney in fact of the defendants, then absentees, authority to represent them in suits brought against them ? This we think must be answered affirmatively. Various powers are conferred by the mandate, both general and special. He is authorized “Citer a comparaitre devant tous juges et tri.bu.naux competents, traiter, transiger, compromettre, se concilier, obtenir tous jugements,” etc. The authority to cite and to appear seem sufficiently to indicate the purpose of the principal to confer upon his agent the power both to prosecute suits against his debtors and to defend suits that might be brought against himself. The terms used in clothing the mandatary with authority are comprehensive and explicit. The expression comparaitre, in this connection, forcibly conveys the idea of appearing in courts for the purpose of defending suits. The case of Fincher v. Robin, 4 An. 61, is not in point.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


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    No. 1724.
    J. & H. Auchincloss v. Theo. Frois & Co.
    By the act of Congress of June 11,1864, the preseription of actions was suspended between citizens of the adhering States and those of the so-called Confederate States. A claim held by a resident of the State of Now York, an adhering State, against a citizen of Louisiana, a seceding State, was not therefore affected by tbe prescription enacted by the latter State during the time of such suspension. But in computing the time in which such obligations or claims aro prescribed, th© timo during which the war continued must be deducted from tho estimate, and the remainder must alone be counted.
    Appeal from the Third District Court, parish of Orleans. Emerson,, J.

      J. W. Ericlcell and E. & H. ITarr, for plaintiffs and appellees. J. L. Tissot, for defendants and appellants.
   Howell, J.

This suit was instituted in December, 1866, by plaintiffs, the holders, who resided during the war and since in the city of, New York, on four promissory notes made in said city, in March, 1860, payable respectively in eight and nine months by the defendants, residents of New Orleans, who pleaded the prescription of five years. To this plea the plaintiffs successfully oppose the act of Congress of June 11, 1864, in relation to the limitation of actions in certain cases (13 Statutes at Large 123), and the decision in the case of Stewart v. Kahn, 11 Wallace 493, carried up from this court, as suspending the prescription in this class of cases.

We take this occasion to remark that in the case of Stewart v. Kahn, the above act of 'Congress was not invoked in this court until application was made for a rehearing, and by our jurisprudence points not raised on the trial will not be considered on application for a rehearing-. It follows, therefore, that the United States Supreme Court -overruled a decision of this court on a point which had never been presented to us in. a manner that we could pass on it.

Judgment affirmed.


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    No. 2431.
    George Ullmeyer v. Ehrmann & Lecanu and Jacob Zolly.
    A rule taken against a garnishee to show cause why an interrogatory shall not be taken for confessed, will be dismissed if the answer of the garnishee to the interrogatory shows that be has answered the questions asked categorically.
    Appeal from the Seventh District Court, parish of Orleans. Collens, J.

      James D. Augustine, for plaintiff and appellant. Julian Miehel, for defendants and appellees.
   Taliaferro, J.

The plaintiff having obtained judgment against the defendants, in solido, for the sum of $4450, with interest, issued execution thereon and took out garnishment process against J. H. Ehrmann, testamentary executor of the succession of Durand, and propounded several interrogatories to him as to whether lie had in his hands or under his control, in his capacity of executor, any money, .rights, credits or other property belonging or due to the defendants in •execution. The third in number of these interrogatories is as follows: “ Are you not testamentary executor of the succession of Durand or of any other succession, and in such succession have you not filed a tableau of distribution in which the said defendants, the late firm of Ehrmann & Lecanu, are put down as privileged creditors for about ■$1000 and ordinary creditors for about $5000? If yea, where is such succession opened, you being required to make a full disclosure in relation to the same ? ”

The answer to this interrogatory declares that the garnishee, as ■executor of Durand, had filed in the probate court of the parish of Natchitoches a tableau of distribution of the estate, which he declared ■to be insolvent; that he liad placed the firm of Ehrmann & Lecanu on the tableau as privileged creditors for $1369 43, and as ordinary creditors for $5286 36; that the tableau was filed nineteenth of February, 1869, and that on the twenty-third of the same month all the right, ■title and interest of the firm of Ehrmann & Lecanu in the amounts so placed on the tableau were transferred to Messrs. Lapene & Ferre, a commercial firm of New Orleans, in part payment of the judgment obtained ill the city by Lapene & Ferre v. Ehrmann & Lecanu, in the Sixth District Court, for $2800, interest and costs.

The plaintiff in execution thereupon took a rule upon the garnishee to show cause why, in default of answering the third interrogatory fully and categorically, the same should nob be taken for confessed, and judgment rendered against him accordingly. On trial of the rule it was dismissed, and from the judgment of dismissal the plaintiff has ■appealed.

We think the judgment of the lower court correct. We do not see that the garnishee has not answered tho interrogatory categorically. The plaintiff alleges that tho answer is not clear and full, and especially in this, that it does not disclose the manner in which the alleged transfer was made and by whom. Such disclosure, we apprehend, is not required by the terms and scope of the interrogatory.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs. •