author: DeBlanc, J. Manning, C. J.

text:
    NO. 6702.
    Breaux, Fenner & Hall vs. Justus Francke.
    In fixing the compensation lor the professional services of a lawyer in any particular case, there are two considerations which will determine the judgment- of this court. One is the amount and character of the work done, and the other is the ability of the debtor to pay.
    The foes due the lawyer for successfully defending a wife in a suit of her interdiction brought by her husband, are a debt for the community.
    ^PPEAL from the Second District Court, parish of Orleans. Tissol,

      Breaux, Fenner & Hall and John Finney for plaintiffs and appellees.

      J. L. Tissot and Thos. Gilmore & Sons for defendants.
   The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the rehearing by Manning, C. J.

DeBlanc, J.

In 1876, on the thirty-first of January, the defendant —now dead — brought suit to interdict his wife. In that' suit, finally decided by this court in April last, Mrs. Francke was represented by plaintiffs, attorneys and counsellors-át-law, who, for their professional services, claimed against defendant, and now claim against his succession, the sum of $2500.

.From the decree allowing their'demand, the executors of defendant’s last will have appealed. They contend that the amount allowed is excessive and should be reduced to $750. They invoke the established rule that we can fix the value of services rendered by attorneys- and evidenced by the record, without reference to the opinion and utterances of witnesses.

The intrinsic value of professional services — of those services which tend to protect life, liberty, reputation or property, is not to be measured by the client’s standing or his ability to pay, but by their character and importance, the nature and the difficulties of the litigation, the advantages to be gained or. lost by its result, the researches to be made, the time and care to be given, the obstacles to be overcome., the intellectual exertion required to unmask' -pretension and expose errors honestly asserted and earnestly sustained by experience and talent.

The humble and the poor — whose life and liberty, whose reputation or property is imperilled, attach as much importance to their protection as does the proud or the wealthy, and the sum of material and intellectual labor required to defend the first, is never less and often more than that required to defend the latter. When the service has been rendered, its value is commensurate with the service itself: the compensation alone, though unequal to the labor, must be measured to the client’s financial condition.

Considering, as we do, the time and attention which must have been bestowed on a memorable cause, the judicial battle fought on different, fields, the adjudication of a respected court, based on the estimates of honorable witnesses; remembering that part of plaintiffs’ task performed in our presence and before this tribunal, we are not inclined to underrate the services which we are called upon to value. '

What should have been- and what should be allowed? From the pleadings, the facts disclosed on the trial, the printed and oral arguments, the authorities cited, we can justly presume that — at intervals— a considerable portion of the valuable time of the plaintiffs must have been consecrated to the preparation of the defence in the interdiction suit, and, for their personal services, they are entitled to a compensation of fifteen hundred dollars, and to whatever they have had to disburse to have their brief printed.

Is the whole of that amount due by exclusively the succession of Erancke? We believe not; that amount constitutes a debt of the community, and, as such, must be acquitted out of the common funds. R. C. C. 2403-2409. It is true that the 397th article of said Code provides “ that — if the interdiction be not pronounced — the costs of the attempt to interdict shall fall on the petitioner, but those costs do not include the fees of the attorneys employed by the party sought to be interdicted, and could be claimed but as damages under the provisions of art 419 of the Rev. C. C.

It may be said that, without the husband’s consent, no debt can be created against the community, and that inasmuch as plaintiffs have acted, not only without that consent, but in direct opposition to the husband himself, to his wishes and his demands, the community can not be held liable for their fees. This is the general rule, but, in the interdiction suit, the husband’s action rendered indispensable the services of counsel, and — if the wife had not selected those by whom she was represented, it Would have been the duty of the judge to name one for that purpose. A defendant in interdiction, be it a wife, is specially authorized to choose her counsel, and the latter’s compensation, when he has represented the wife against the husband, should be paid by the community, unless perhaps in a case wherein it would be alleged, and proved that the husband had acted from motives of interest or passion.

R. C. C. 419.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that plaintiff recover ■of the community which heretofore existed between the late Justus Erancke and Pauline Landreaux, his surviving widow, the sum of fifteen hundred thirty-nine dollars and fifty cents, with legal interest thereon from the 24th of April 1877; the costs of the appeal to be paid by plaintiffs, those of the lower court by said community.

Ok Rehearing.

Manning, C. J.

Two factors enter into the calculation of fees for services, such as those rendered by the plaintiffs. One is the extent and kind of service, and the labor incident to its rendition — the other is the ability of the party, who is liable, to pay.

Giving due consideration to both of them, we think the demand of the plaintiffs is reasonable, and therefore

It is ordered and adjudged that our former decree is amended by inserting therein the sum of twenty-five hundred and thirty-nine dollars and fifty cents instead of the sum therein mentioned, and as thus amended, that it be and remain the judgment of the court.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6824.
    The State ex rel. Monroe M. Samuel vs. Allen Jumel, Auditor.
    Tlio claims o£ sheriffs, and clerks gf courts, for the annual sums of money .due them £or their services in the criminal matters arising in their courts, are not prescribed in two years from their maturity unless proved up, and audited within that time. This prescription only applies to claims which roauire evidence to establish, not to those whose amounts are fixed by law.
    The holder of a claim against the State, the amount of which is fixed by law, may compel the Auditor by mandamus to warrant for the amount, unless the latter shows that no appropriation was made for its payment, or that the appropriation was exhausted, or that the claim exceeded the revenue of the year in which it was exigible.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe,

      R. L. & B. W. Belden and A. L. Tucker for relator and appellant.

      H. N. Ogden, Attorney General, for respondent.
   The opinion of the court was delivered by

DeBlanc, J.

Under section 795 of the Revised Statutes, “every sheriff is entitled to one hundred dollars, and every clerk to fifty dollars per annum, as a compensation for their services in matters of a criminal nature pending in their respective courts.”

The relator is the transferee of several claims due, under said section, to sheriffs and clerks, for services by them rendered during the years 1874 and 1875.

The amount of these claims could not bo, their existence is not contested — but the officer who now fills the position of State Auditor refuses to issue warrants to the relator, on the ground that said claims have not been presented to be audited, within two years after they accrued.

■When did they accrue? On the last days of the years 1874 and 1875, and plaintiff’s applications for a mandamus to compel the issuance of warrants in Ms favor, were filed — one on the 30th of July, the other on the 28th of September 1877. If the prescription invoked by defendant could apply in this instance, it would bar plaintiff’s action but as regards the claim of 1874. This is conceded.

Section 179 of the Revised Statutes, the only law relied upon by defendant’s counsel, has reference to that class of claims which — to bo allowed — must be supported by evidence and audited, and not to those the amount of which is fixed by law and can neither be reduced nor increased.

Defendant also, alleged that the appropriation made to pay the claims described in relator’s-petition as duo for the year 1875, has been ■exhausted and that he is prohibited by law from issuing warrants in excess of appropriations. He, however, discovered that this was a mistake, and immediately addressed a letter to the judge of the lower court, in which he satisfactorily explains and corrects the alleged mistake.

As to the claims of 1874, it is not charged that they are not due, that no appropriation has been made to pay them — that any appropriation made has been exhausted, or that it was in excess of the revenue, and — under the circumstances — warrants should be drawn on the'treasury for the claims of 1874 and 1875, held by relator.

On the 3d of AprilT875, two distinct appropriations of each $7500 were made by the Legislature to pay for services rendered by sheriffs and clerks, in accordance with sections 765 and 3563 of the Revised Statutes, and the warrants to be drawn in favor of the relator shall . express on their face that they are to be paid, those of 1875 out of the funds appropriated for that purpose by the first section of act No. 17 of the Legislature, approved on the 3d of April, 1875, and those of-1874 out of the funds appropriated for that purpose by the second section of said act.

For these reasons, the judgment of the lower court is partly reversed and amended, and the alternative writ of mandamus granted on the 31st of July, 1877 is made peremptory at defendant’s costs.


text:
    No. 6909.
    The State vs. Augustin Robertson.
    The defendant who is on trial for murder, can not introduce evidence of the Quarrelsome, or dangerous character of the deceased, in justification; but he mar introduce evidence of such character, in excuse for the killing, or in palliation of the offense, provided he first shows that ho was actually .attacked by the deceased, and that he was aware of the latter’s character.
    In an indictment for murder or manslaughter, the character and nature of the wound which caused the death need not be set forth. The indictment need only-charge that defendant did •willfully, feloniouslg, and of Ms malice aforethought Mill and murder the deceased.

    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      H. N. Ogden, Attorney General, for the State.

      John 8. Bilim for the defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant was indicted, by the grand jury of the parish of Lafourche, for the murder of Octave Roberts. He was tried, found guilty of manslaughter, applied, but in vain, for a new trial and the arrest of the judgment-, was sentenced -to imprisonment at'hard labor for the space of twenty years and to pay a fine of five dollars and •the costs of the prosecution, and he appealed.

No brief has been filed in this case, either in behalf of the defendant or of the State.

The record contains but one bill of exception, and we learn — from its recital — that one of the State witnesses was asked by the prisoner’s ■couhsel whether the deceased was of a quarrelsome disposition, and he answered that he did not know. The question was reiterated, objected to and overruled by the court, on the ground that the deceased’s character for violence could be inquired into only after laying a foundation for the inquiry, by proof of previous threats and causes which — after a first attack — would justify the accused in being in greater than usual fear. In the meanwhile the witness again declared that he knew nothing of the deceased’s character, and thereafter several witnesses testified on this point without objection.

Though it does not appear that the judge’s decision impaired or affected the weight of any evidence offered by the prisoner, it is proper to state that said decision was strictly correct. “ As a general rule, evidence is not admissible — as a ground of justification, of the character of the deceased; but, on the other hand, if we suppose the offer to be — • not justification — but an excuse on the ground of self rdefence, or mitigation of the grade of guilt, and — in such a case — it be proved that the defendant was actually attacked, and if evidence should be then tendered that the deceased was a man of ferocious temper, of malignant disposition and of overpowering strength; and if in addition it be offered to be proved that the defendant had notice of these characteristics, the better opinion is that such evidence is admissible.” Wharton, on Criminal Law. Edition of 1874, vol. 1st, No. 641.

The judge’s decision is consistent with that rule.

To sustain his motion in arrest of the judgment; the prisoner relies •on three grounds:

1. That, when the death is charged to have been occasioned by a wound, the description of the wound should be set forth in the indictment.

2. In describing the wound, the term “ mortal ” is indispensable, •and that term is not in the indictment.

3. It is not alleged that the party died of the wound so inflicted.

I. II. III.

Formerly, as said by this court in State vs. Hornsby, the failure to dot an i, or to cross a t, or something equally absurd, was considered fatal to an indictment. Substance was sacrificed to form, or rather form became substance, and substance mere form. That ancient strictness has been banished from the English and the American courts.

“In any indictment for murder or manslaughter, it shall not he necessary to set forth the manner in which, or the means by which the death was caused. It shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased.”

Rev. St. Sect. 1048.

In this case, after the averments that “ Augustin Robertson did cut, stab and wound the said Octave Roberts, the indictment further charges, in the very words of the Statutes, that he — the said Augustin Robertson did — the said Octave Roberts — then and there wilfully, feloniously, and of his malice aforethought, kill and murder.

The life of every inhabitant in the State — high or low, white or black —is under the protection of the State and of its courts, and those who are disposed to attempt or destroy the lives of others, should remember — before it be too late to do so, that — here—no frivolous technicality shall prevail against the verdict of a jury, or reverse any sentence responsive to that verdict.

The judgment of the lower court is affirmed.


author: Marr, J.

text:
    No. 6804.
    Mrs. Mary Sexton vs. M. O. Sullivan et al.
    The Third District Court lor the parish ol Orleans having exclusivo jurisdiction ol all suits to enjoin proceedings in justices’ courts, the Superior District Court was utterly without jurisdiction of such suits, and had no power to impair, or interfere in any way, with this exclusive jurisdiction of the Third District Court.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe,

      B. King Cutler for plaintiff and appellant.

      J. C. Peirce for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

In November, 1875, John W. Price brought suit before the first justice of the peace for the parish of Orleans to eject his tenant, Mis. Mary Sexton.

She set up in defense:

1. Want of jurisdiction, ratione materice.

2. That she deposited the promissory note of W. H; Waters for $2500, secured by mortgage, with Elder, agent of Price, and in September, 1874, contracted with him that she was to retain possession of the premises, at a rent of $1000, payable by the year, until the amount of the note should be consumed and exhausted by the rent.

The judgment of the justice was in favor of Price. Mrs. Sexton took a suspensive appeal, which was dismissed, and she then took a devolutive appeal, pending which she obtained from the appellate tribunal, the Third District Court, an injunction prohibiting further proceedings on the judgment, on the same grounds, substantially, as set up in the suit before the justice.

The appeal was tried and judgment was rendered on the twenty-fifth of January, 1876, affirming the judgment of the justice of the peace. This judgment was suspended by a motion for a new trial, and it was signed on the ninth of March.

The injunction suit was also tried; and judgment was rendered on the twenty-third of February, dissolving the injunction with' damages, and dismissing the suit. This judgment was also suspended by a motion for new trial; and it was signed on the fourteenth of March.

On the seventh of March Mrs. Sexton brought suit in the Superior District Court against the justice, M. O. Sullivan the constable, Price and Elder, his agent; and obtained an injunction prohibiting further proceedings in the suit of Price vs. Mrs. Sexton.

On the twenty-first of March Price filed an exception setting up—

1. Want of jurisdiction in the Superior District Court;

2. The plea of res judicata, by reason of the judgment of the Third District Court in the injunction suit;

3. That the petition sets forth no legal cause of action.

It seems that this exception was tried; and that it was dismissed on the twenty-ninth of April; and that in May an answer was filed reserving the benefit of the exception. Nevertheless, the record shows that on the third of Juiy an agreement was signed by counsel for both parties fixing the exception for trial on the tenth of July: that it was continued by consent on the tenth; that it was taken under advisement on the eighteenth: that there were several subsequent continuances by consent, until, finally, the Superior District Court was abolished and the case was transferred to the Third District Court.

After several continuances in the Third District Court the exception was fixed, tried, and maintained; and a judgment was rendered dissolving the injunction with $100 damages, and dismissing the suit. A new trial was granted; and final judgment was rendered dissolving the injunction with $75 damages, and dismissing the suit; and Mrs. Sexton appealed from that judgment.

Under the constitution, article eighty-three, the acts of the Legislature, Revised Statutes of 1870, sections 2006, 2012, 2013; the act of 1870, called session, p. 2; and the act of 1872, extra session, No. 2, in acts of 1873, p. 38, the Third District Court had exclusive jurisdiction of the appeal from the justice, and to enjoin, or to stay, by mandamus or prohibition, further proceedings on the judgment of the justice. The Superior District Court was absolutely without jurisdiction; and the judgment appealed from would be correct on that ground alone.

But the entire controversy was settled, so far as the'ejection of the tenant was concerned, by the judgment of the justice, and that of the Third District Court, affirming that judgment; and by the judgment of the Third District Court dissolving the injunction and dismissing the original suit brought in that court. If the Superior District Court had been of competent jurisdiction, the plea of res judicata should have been maintained; and the suit dismissed.

The injunction was asked for and obtained in the Superior District Court on grounds which not only should have been but which actually were set up in the justice’s court and in the Third District Court; and they had been passed upon definitively before the petition was filed in the Superior District Court.

This appeal is not taken from, nor does it bring under our review the judgment of the justice, nor that of the Third District Court affirming that judgment; nor the judgment dissolving the injunction and dismissing the suit brought originally in the Third District Court. The justice may have erred, and the judge of the Third District Court may have erred. We do not mean to express any opinion as to the correctness of these judgments, because they are not included in this appeal; and they are final. They certainly did not fall within the jurisdiction or control of the Superior District Court; and the Third District Court, to which causes pending in the Superior District Court were transferred by the act abolishing the Superior District Court, acquired no greater authority in this case than, the Superior District Court had; and that was, to dissolve the injunction which should not have been granted, and to dismiss the suit which should not have been brought.

The suit which is now or which lately was pending in the Sixth District Court, for arrears of rent claimed by Brice of Mrs. Sexton, can have no effect upon the judgment ejecting Mrs. Sexton, which is final and conclusive.

We find no error in the judgment appealed from; and it is, thei’efore, affirmed with cqsts.


author: Manning, C. J.

text:
    No. 5470.
    Choppin & Beard vs. Louisiana Levee Company.
    Under the acts of the Legislature which set forth the terms of the contract made by the State with the Louisiana Levee Company, the company are bound to construct, or repair, or strengthen in any given year only such levees, as the commission of engineers, created by those acts, shall require, and furnish estimates of the work of, before the first of October of the preceding year; and to maintain every completed section of the levee, up to the standard dimensions prescribed by the commission of engineers. One who claims damages of the company therefore, for injury caused by a crevasse at any given point on the levee, must, in order to set forth aprima facie Cause of action, allege that the company failed to build, or repair the levee at the crevasse point after having been directed by the engineers to do it, or, had not done the work according to the standard fixed by the engineers; or, that the crevasse had occurred at some point on a completed section of the levee, where the standard dimensions prescribed by the engineers had not been maintained by the company; or, that on account of the imperfection of the work, the crevasse occurred when the water was below the standard height fixed by the engineers.
    Whether the journals of the Houses of the Legislature are admissible in evidence to prove that a certain act was passed in disregard of the constitutional forms necessary to give it validity as a law, is an open question before this court.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      James H. Grover and T. J. Semmes for plaintiffs and appellants.

      T. Gilmore & Sons and John A. Campbell for defendants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs, owners of a plantation in Iberville parish, allege that it was seriously injured by an inundation in April 1874, by three crevasses in the levees on the Mississippi river at Morganza, Point Manoir, and Hickey, and they claim indemnity from the defendant for the loss sustained in that and the following years. The damages are laid at forty-three thousand seven hundred dollars.

The defendant excepted to the action for this; — that for none of the matters and things alleged in the petition is the defendant liable, or indebted in law to the plaintiffs, there being no privity of contract between them, and that the petition discloses no cause of action.

The plaintiffs then filed a supplemental and amended petition. The exception was sustained, and the suit dismissed.

The controversy turns upon the nature and extent of the contract of the defendant under the Acts of the Legislature specially relating to the company, and the sufficiency of the allegations of the petition to constitute a prima fade cause of action for breach of that contract. It becomes necessary therefore to analyze the Acts with some minuteness of detail, and to scrutinize the allegations of the petition, in order to discover whether the plaintiffs have made the necessary averments to entitle them to be heard when complaining of the defendant’s non-performance of obligations, charged to have been assumed under the Acts of the General Assembly.

The Louisiana Levee Company organized as a corporation under the general laws of the State by a notarial act in February 1871. Shortly thereafter, on the twentieth of that month, the Legislature passed, an act, recognizing that incorporation, and contracted with the Company as follows;

That in order to maintain a uniform and perfect system, the location and dimensions of all levees to be constructed, maintained, repaired, and kept in repair and managed, shall be determined by a commission of three engineers, whose duty shall be, and who are expressly directed to determine the proper location and dimensions of all levees to be constructed, repaired, or strengthened by the company, and the standard of. dimensions to which they shall be maintained by it, and to report the same with maps and profiles thereof, and the number of cubic yards to be built in the construction of new levees, and in strengthening, enlarging, and repairing the levees now in existence, which report shall be of sections of levees of five miles or more. In consideration of the compensation, benefits, rights and powers, conferred by the Act, the Company shall take charge of, manage, control, construct, maintain, repair, and keep in repair ail the levees in this State, and certain others, and for the purpose of enabling the Company to fulfill its duty in this regard, it is vested with the sole and exclusive custody, management, and control of all the levees in this State for twenty-one years, and its engineers and surveyors, contractors, agents, and servants' are. empowered to enter upon and occupy all lands that may be necessary, and to remain as long as may be necessary to do and perform every thing required of the company by the Act, investing it with all the powers and prerogatives in respect to the levees as was until then vested in the State, parish, or municipal authorities, except that the company could not assess or collect any tax, nor compel the owner of land to build or repair any levees. The company is obliged to commence the construction of levees within sixty days from the receipt of the report of the commission of engineers, and must thereafter construct not less than three millions of cubic yards every year until the levee is completed according to the standard required by that report, and after the completion of any section of a levee, the company must maintain it up to the standard dimensions specified in the report, and in the event of its failing to do so, it shall be liable in damages to any person injured by reason of such neglect or failure, unless the injury is caused by acts of violence of men, the wrongful acts of individuals, the existence of obstacles interposed by the action of courts, or the operation of causes over which the company can have, no control, or on account of the floods rising above the standard height determined by the commission of engineers. In subsequent sections the act provides that the Governor shall cause an estimate to be made of the cost of constructing or completing the levees according to the standard required by the engineers’ report, within thirty days after the receipt of that report, and to transmit the estimate to the Auditor, who shall thereupon apportion the estimated cost among the several -parishes according to the assessment rolls of the State, and shall annually thereafter cause to be collected the taxes necessary to pay this estimate in certain proportions specified in the act. Acts 1871, p. 29 et seq.

A contract was formally made by the Governor, and the Company under this Act, and was ratified by the legislature on the 28th. of same month. Ibid., p. 64.

On March 6, 1873, an act amendatory of these two of 1871 was passed, re-enacting the main features of those acts which we have epitomised above, but changing the requirement of the construction of a specified number of cubic yards of levee each year into one for the construction of not less than the number of cubic yards in each year required by the estimate of the engineers, and reducing the rate of compensation from sixty to fifty cents per cubic yard, and requiring the engineers to report before October 1st. of each year a detailed statement of the number and size and location of the levees to be constructed during the next ensuing year. The enactment is then made in specific terms, that the company shall not be required to build during the year any levees except those required to be built by said commission, unless there is a destruction or threatened destruction of any levees from the caving of banks after the commission have made their report. .Acts 1873, p. 83.

On March 9, 1874 there was another Act which provided that if the Company, within twelve months after the promulgation of the Funding Act, should file in the office of the Secretary of State an acceptance of the reduction of the tax of four mills for the repair and construction of levees to three mills, then that section of the Act of February 20,1871 which made the company liable for damages for its failure to maintain the levees up to the standard dimensions required by the engineers’ report, was repealed.

Under this legislation, and the contract made by the Levee Company, the plaintiffs sue. They allege that the Company undertook and contracted to construct maintain, repair, and keep in repair all the levees in this State, and to protect any of the lands of this State from overflow by the waters of the Mississippi river, and,bound itself to con- . struct not less than three millions of cubic yards of levees each year until the entire line of levees of the State reached a standard which would effect the purposes of the company’s organization, which was to secure the alluvial lands within the State from overflow. They allege that the company has reaped the benefits of this contract with the State in receiving bonds of the State amounting to a million of dollars, but has failed to fulfill its obligations — that it has not protected the alluvial lands of the State, and especially it has not protected the plaintiffs’ land, from overflow — it has not built the required number of cubic yards of levees each year, nor repaired them — that it was bound by its contract to protect the plaintiffs’ plantation from overflow, and has net done it, and in consequence of this failure to protect it, it has been inundated by the water through three crevasses — -that the company had knowledge, or ought to have had knowledge that the-levees were not sufficiently strong to resist the pressure of the water which would come against them — that its officers knew or ought to have known the levees were in a dangerous condition and needed repairs, but the company failed to make these repairs, and while giving its means and energies to close other crevasses, made no effort to close either of these thre'e through which the water flowed over the plaintiffs’ plantation, occasioning destruction of the growing crops, the buildings, etc., and causing damage to the amount before stated.

The petition was filed May 1.1874. The exception was made on the 8th. and a supplemental petition filed on the 18th. of same month. In it, the plaintiffs reiterate their allegations that under the act of 1871, the defendant was liable in damages to any person who was injured by its failure to comply with the obligations assumed in its contract with the State, and that by reason of its ’neglect to construct, repair, and keep in repair the levees mentioned in the original petition according to the standard to be fixed in accordance with that Act, these levees gave way, and the plaintiffs were damaged thereby — that the overflow and consequent injury was caused by the defendant’s neglect to comply with the requirements of its contract, and that the plaintiffs suffered injury within the intent and meaning of that Act. They then allege that the Act of March 9, 1874, which assumed to relieve the Company from-liability for damage, is unconstitutional, because it is in conflict with the constitutions of the United States, and of this State, in this, that it destroys a vested right of the plaintiffs, and impairs the obligation of a contract, by virtue of which the defendant was liable in damages to them.

It will be observed that the Acts of the Legislature set out the contract, its object, and the mode of its execution, with industrious particularity. The object was to maintain a uniform and perfect system of levees throughout the State. The means adopted to attain it was to entrust to a commission of engineers the right and the power to determine both the location and the dimensions of all levees, whether old and needing repair, or new and requiring construction. And this delegation of power is exclusive. No one else, and no other body, had the right to demand or require the construction of a new levee, or the repair and strengthening of an old levee, but the commission of engineers, who are entrusted with plenary power in every thing that relates to the location and dimensions of the levees, nor was the Auditor required to levy or cause to be collected by taxation any sum for the payment of the company, except such sum as was sufficient to cover the cost of the levees which the commission of engineers had located and estimated. And the obligation of the Company is likewise single, and exclusive of every source but one — it could not be required to build during a year any levees but those which had been located by the engineers before October 1st. of the previous year, except in one emergency.

These Acts, instead of conferring the absolute power upon the Company to build whatever levees they pleased, or imposing upon it the obligation to build all needed levees, restricts and hampers it by commanding that it shall not build any levees until the commission .cf engineers have fixed their location, prescribed their dimensions, and reported estimates of the work before a given day in each year. The acts are so deftly draughted that 'the commission of engineers is the governing power, without whose fiat nothing can be done, but who are themselves required to do all things before a specified day in order to impose ah obligation upon the Company to do any thing. And if they or either of them shall fail to do his duty in locating levees, or fixing their dimensions, or making the estimates, there appears no provision in these statutes for his displacement, or compulsion. One of them is appointed by the Governor another by the Directors of the company, and the third by the President, but when appointed, they are not the Company’s officers, and are not more amenable to it than to any citizen, and while the company is invested with all the powers and prerogatives with respect to. the location, construction, and control of levees that either the State, or the parishes, or the municipal authorities had and exercised until these acts were passed, it is subject to the direction of the engineers in locating and building and repairing the levees.

The company could only construct as directed by the engineers, but when any section.of a levee was completed, or when the whole system of levees was perfected, then the Company must maintain it up to the standard dimensions specified in the report of the engineers, and if it failed to do so, liability in damages resulted.

This being the contract between the State and the Levee Company,we have now to inquire whether the allegations of the petition disclose a cause of action for its breach.

There is not among these allegations, one that the commission of engineers at any time located a levee at either of the three points where crevasses occurred, or directed the construction of one there, or prescribed its dimensions, or that a levee having been located and constructed there, it did not conform to the standard fixed in the engineers’ report, or had not been maintained up to that standard. There is no allegation that the levee having been built, and maintained up to the standard, gave way from imperfection of the work, notwithstanding the floods did not rise above the standard height. The plaintiffs’ case, as set forth in their petition, is that in consideration of the compensation, rights, and powers conferred by the legislature upon the Company, it had agreed to protect the alluvial portions of the State from overflow, and that it had failed to protect the plaintiffs’ lands which are in the alluvial district from overflow, and hence it was liable in damages. The petition does not allege any neglect or failure of the company to do all that the statutes required it to do anterior to the disaster which occasioned them injury. There must have been a duty or obligation on the part of the defendant to the plaintiffs, and a breach of it to the plaintiffs’ injury, and their pleadings must set forth the obligation, and it must appear on their face that the alleged breach was of an obligation which the statutes had imposed. The petition is deficient of those essential averments, and the exception was properly sustained.

• We have been urged to consider and declare the effect of the statute of March 9,1874, the constitutionality of, which is attacked in the supplemental petition, but it has become unnecessary to do so, since our decision is based upon the inherent defects of the pleadings, which are wholly independent of the question of the validity of that law. But if it were otherwise, we should maintain the correctness of the lower court’s ruling upon the rejection of the evidence offered by the plaintiffs.

The journals of the two houses of the legislature were offered in evidence to shew that the Act above mentioned did not pass with observance of the forms required for the passage of statutes, in being read in each House on three several days unless there was a dispensation of the rules. Const, art. 42.

We are not to be understood- as expressing or intimating an opinion upon the question, whether or not the journals are admissible in evidence to shew want of compliance with the forms necessary to impart to a bill the force of law. The question has been variously determined in different States, and is an open one before us. The People v. Mahaney, 13 Mich. 481. Spangle v. Jacoby, 14 Ill. 297. Miller v. the State, 3 Ohio, 475. Dew v. Cunningham, 28 Ala. 467. The People v. Devlin, 33 N. Y. 269. Broadnax v. Groom, 64 N. C. 244. But the evidence was properly excluded, because there is no averment in the supplemental petition that would warrant its reception. That petition was framed expressly to attack that Act. By way of exordium, it recites briefly the substantive allegations of the original petition, and then charges the unconstitutionality .of that Act because it destroys, or attempts to destroy a vested right, and impairs the obligation of a contract. There is no allegation that the bill did not go through the regular processes of legislative gestation, constitutionally demanded, before it can be ushered into existence as a perfect law. On the contrary, the allegations of the supplemental petition presuppose that the Act was regularly passed, but assert its invalidity, because it is violative of a constitutional right. And surely upon so grave a matter, some averment, striking directly at the point of attack, must be made before evidence can be properly admitted such ■ as was offered in the lower court. It ivas properly rejected, and. for the reason that there was no allegation in either of plaintiffs’ petitions under which it could be admitted.

The court below dismissed the plaintiffs’ petition on the exception of the defendant to its sufficiency and completeness of allegation.

It is ordered and decreed that the judgment of the lower court is affirmed with costs.


author: Spencer, J.

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    No. 7054.
    Succession of W. D. Gale. On Opposition of Wm. Sadler.
    The legal mortgage on a person’s property resulting from the registry of his official bond as sheriff, is extinguished by prescription, unless re-inscribed within ten years from the date of said registry. The necessity of a re-inscription every ten years, applies to all mortgages, except those specifically exempted from that necessity.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, J., special judge.

      K. A. Cross and D. C. Hardee for opponent and appellant.

      Hedge ¿ft Moore for tutor and appellee.
   The opinion of the court was delivered by

Spencer, J.

The. only question which it is necessary for us to decide in this ca&e is, whether the re-inscription of a sheriff’s bond, in the mortgage office, within ten years from its original registry, is necessary to preserve the legal mortgage resulting therefrom? If it is necessary, then the opponent Sadler has no claim to be ranked as first mortgage creditor on the real estate of W. D. Gayle, deceased, against whose succession he obtained judgment for moneys received by Gayle in his official capacity as sheriff of East Feliciana. Gayle qualified as sheriff in January, 1862, and received from his predecessor §1292 85; which sum was in contest between Sadler and others, and was finally on appeal adjudged to Sadler in February, 1870.

Gayle’s minor children, in right of their mother, have a duly preserved legal mortgage, resulting from an adjudication to the father of the common property in January, 1866. Gayle himself died November, 1867. The contest is between these minors claiming under their legal mortgage, and Sadler claiming under the legal mortgage resulting from the registry of the sheriff’s bond in 1862.

The want of re-inscription of the legal mortgage, asserted by Sadler, is pleaded, and is, we think, fatal to his pretensions.

Article 3317 C. C. (of 1825) provided that “ all mortgages, whether . conventional, legal, or judicial, are required to be recorded in the manner hereafter provided.”

Article 3298, same Code, exempts from this necessity of registry the mortgages “ in favor of minors, interdicted and absent persons, on the property of their tutors, curators, etc,” and “ mortgages of the wife on the property-of her husband,” etc.

Article 3333, same Code, provides that “ this registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of their date; their effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in lohich they were first made. But this rule does not obtain with regard to the mortgages” in favor of wives, minors, etc.

By acts of 1842 there were also excepted from the necessity of re-inscription mortgages by the stockholders of the Property Bank. By an act of 1843 the same Property Bank mortgages,‘and those of wives, minors, and interdicts. By act of 1853, those in favor of the commissioners of the Poydras legacy, etc.

It is not pretended that the legal mortgage resulting from the registry of the sheriff’s bond comes within any of those exceptions. But it is urged that this legal mortgage against public officers was only created by act of 1847, and it is argued that as the law creating it only required its registry and is silent as to its re-inscription, therefore we can not apply Art. 3333, of the Code of 1825, to it. It is further urged that this legal mortgage was created after the Acts of 1842" and T843 above referred to were passed, and therefore no argument is to be drawn from its not being included in the exceptions created by said acts. Whatever force this argument might have (and we confess it has but little), is overcome by the fact that in 1853, six years after this particular legal mortgage had been created by statute, the Legislature enacted another law, exempting the mortgages to the “Poydras fund” — and still we find no mention of this legal mortgage against public officers. But we do not propose to rest our opinion upon this view of the case. -The process by which we reach our conclusion is simply this: The law declares that all legal mortgages must be recorded, excepting certain specified ones. The opponent’s legal mortgage is not one of those so excepted. •

The law requires all inscriptions of mortgages (whether legal, conventional, or judicial, matters not) to be renewed within ten years.. It excepts from this rule certain legal and conventional mortgages; but the opponent’s mortgage is not among those excepted. Therefore the legal mortgage in question must be registered, and must be re-inscribed, to have effect against third persons. It was registered, but was not re-inscribed. It is, therefore, without effect as to the minor children of Gayle. We see no possible reason for supposing that the Legislature in cheating this legal mortgage and, requiring its registry intended to exempt it from the operation of a general law of the. State in no way inconsistent with the act creating it. On the contrary, the fact that the Legislature required it to be registered in order to preserve it, is potent if not conclusive proof, in the absence of express exemption, that it intended that it should be re-inscribed as all other mortgages. The reason of the law, in requiring re-inscription, is as strongly applicable to this class of mortgages as to any other. When the law does not make the exception, we can make none.

The judgment appealed from is correct, and is affirmed with costs.


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    No. 6982.
    Schmidt & Zeigler vs. Caleb Sandel et al.
    The purchaser of property, sold in fraud of his creditors by an insolvent debtor, who pays by anticipation a part of the nominal price after the institution of a suit to annul the sale on the ground of fraud, is not entitled to be refunded the sum he has thus paid.
    One who constitutes another his agent with full power to manage his mercantile house, and to. do all acts appertaining to its business, makes himself liable for the value of all goods purchased by the agent in the line of that business.
    A PPEAL from the Fifth Judicial District Court, parish of East Feli¿X ciana. McVea, J.

      Wedge & Moore for plaintiffs and appellees.

      W F. Hernán and D. G. Hardee for defendants.
   The opinion of the court was delivered by

Manning, C. J.

This suit is on an account for .over seven hundred dollars; and with it is coupled a demand for the annulment of a sale of land made .by Sandel to his eo-defendant and sister, Mrs. Delery, as in fraud of creditors and simulated.

J. D. Delery, the brother-in-law of Sandel, formerly kept a store in Jackson, failed, and was sold out under execution. Sandel bought the stock of goods, and continued the business, leaving Delery in sole charge, and not apparently interfering in its management. This was in May, 1874, at which time he executed this power of attorney-“ Know all men by these presents that I hereby appoint J. D. Delery as my agent to represent me in my store in Jackson, to manage the same, and to do and perform any and all acts for me appertaining to said business.” By December 1875, Delery had got Sandel’s store in the same condition his own was the previous year. Claims, exceeding the sum expressed in the act as the price of the land, were about to be put in suit against Sandel, and on the 27th. of that month and year he executed with his sister a notarial act of sale of his land, the stipulated price being $2500, of which $225 was to be paid one year from the day of sale, $1000 in two years, and $1275 in three years, and left for Texas.

In less than a month after this Act was passed and recorded, the present suit was filed and process served, the absent Sandel being represented by a curator.

Mrs. Delery answers that she purchased in good faith, and has paid $1225 of the price, and would willingly surrender the land if this sum were repaid her, and her notes were returned. Sandel’s testimony was taken, and he says there was a distinct understanding between Mm and Delery that the latter should buy and'sell for cash only. His deposition is wholly occupied by statements that he did not know Delery was buying, or that anybody was selling him goods on his (Sandel’s) account, and that he never gave him authority to buy on credit, and such like. He says nothing about the sale of land to his sister. Not a word is uttered as to its verity or good faith.

The fraud intended to be perpetrated is transparent, and Mrs. Delery can not claim exemption from its consequences. If she paid to her brother any sum, she did it with full knowledge of the attack oh the sale by the plaintiffs. The citation was served on her in the month following the sale. The first payment was not due until a year after it. The particular sum she alleges to have paid is the sum total of the instalments that were due in one and two years. She cannot expect relief from such fatuous conduct.

This is but a sample of the shallow devices sometimes adopted to baffle creditors. Delery can not pay his debts, and the sheriff sells Mm out. A friend or relation makes the purchase, and the old occupant continues in the store, all the surroundings and appurtenances of which are unchanged except the cabalistic letters on the signboard, agt. -The insolvent occupant scorns to permit any one but himself to be chargeable with liability for the debts of the store, (Delery swore the plaintiffs would not have sold the goods on credit, but for their knowledge of his ■business capacity,) and his principal hopes to evade responsibility-because he did not personally supervise its operations, or specifically-authorize every particular purchase. When the agency was created,, the authority delegated was to represent the principal in his store, to-manage it, and to do every thing appertaining to the business. Keeping a store means ex vi termini buying and selling merchandize. The parties so understood it, and so did the public. Sandel must pay the penalty of his misplaced confidence.

Judgment affirmed.


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    No. 6740.
    Sattler & Co. vs. Leonard Marino.
    ■Where an insolvent merchant, prossed by creditors, nominally sells to his penniless clerk a stock of goods which the clerk and he know are not paid for and accepts in payment of the goods a debt for pretended wages he owes 'the clerk, and the promissory notes of the clerk, the transaction will be considered a fraudulent simulation.
    PPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      F. L. Hichard$o?i for plaintiffs and appellees.

      L. A. Sheldon for Salvador Marino, intervenor and appellant.

      Tlios. Gilmore & Sons for Hernsheim & Co., intervenors and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

Leonard Marino had a store in this city, and — judging from the number of his creditors and the amount of their bills, his-credit far exceeded his means. He became seriously-involved, asked the attorney representing one of his creditors a delay of two months to satisfy his claim, and five days after —before the creditor’s answer-sold his stock of goods to his brother Salvador, who — since his arrival from Europe, had lodged and boarded with him.

The sale from Leonard to Salvador Marino is attacked, by the creditors of the former, as being a mere simulation intended to cover up his property; or at least that which he alleges he transferred to Iris brother, and which — at sheriff’s sale, brought $1100.

At the date of the sale, what was the state of the affairs of Leonard Marino ? He confessed on the trial that — at said date — he could not have paid what he owed. • • .

He was asked:

“What was the amount of your debts when you sold your property?”
A. “I have not made a regular calculation.”
Q. “ Did you owe over $20,000 ? ”
A. “ I made no regular calculation.”
Q. “ Did you owe over $20,000 ? ”
A. “I made no calculation; it might have been less, it might be more.”
Q. “ Don’t you know whether you owed over $10,000 ? ”
A. “I believe I do.”
Q. “ You know you owed a great deal more than that.”
A. “If I had the accounts I could add them up.”
Q. “Do you mean to say you did not add up your accounts before the sale ? ”
A. “ I never kept regular books.”
Question repeated.
A. “No, I did not.”
Q. “ How long before the sale did you add up your accounts ? ”
A. “ I did not keep regular books. I used to keep the invoices.”' Q. “ Did you ever know how much you owed ? ”
A. “Not exactly.”
Salvador Marino testified as follows:
Q. “Did you make the purchase of the stock of goods which has been seized and sold ? ”
A. “ Yes, sir.”
Q. “ Of whom, and when ? ”
A. “ From my brother on the twentieth of January.”
Q. “ When did you take possession ? ”
A. “ The same day.”
Q. “Who had possession from the twentieth up to the time of seizure?”
A. “I had.”
Q. “Had Leonard Marino anything to do after time of sale up to the time of seizure?”
A. “No, sir, nothing at all.”
Q. “ State what were the terms of sale.”
A. “I bought it for eighteen months’ wages due me, and three notes.”
Q. “ How much were the wages ? ”
A. “ Seventy-five dollars a month.”
Q. “ How much did the notes amount to ? ”
A. “ Four thousand five hundred and fifty-seven dollars.”
Q. “ After you took possession, and before the seizure, did you buy any goods of any body else ? ”
A. “Yes, I did.”
Q. “ Have you got the bills of those purchases ? ”
A. “ I have.”
Q. “Do these bills show these purchases, and where you made them ? ”
A. “Yes, they do.”
Q. “ Who paid for the goods — those last bills ? ”
A. “I did.”
Q. “Were these goods in the store, when the sheriff made the seizure ? ”
A. “Not all of them.”
Q. “ A portion of them were ? ”
A. “ A majority,” etc.

The deputy sheriff who made the seizure, was asked: “Whom did you find in possession of the store, when you seized it ? ” He answered: “ Salvador Marino, a good many clerks and negroes: Salvador Marino claimed possession of the store, and said, in an excited manner that it did not belong to his brother, but to him: to which the deputy replied it made no difference, and seized.

At the date of his intervention in this suit, Salvador Marino had been in this country for about four years, and — from the first day of his arrival here until the twentieth of January 1877 — he was, he said, in Ms brother’s store and had never been out of it. There he lodged and boarded. On the twentieth of January, for his wages as a clerk, Ms brother was owing him — this is his own declaration, thirteen hundred and fifty dollars, and — on that day — he, the favorite clerk and pretended creditor, became the owner of the store.

The proposition to 'sell came from Leonard, and the consideration of a transfer proposed by and accepted by one who — then—was notoriously insolvent, and about to be sued, was the wages alleged to be due by the vendor to the vendee, and four notes from the latter to the former, payable at twelve, eighteen, twenty-four and thirty months • — in all $5807. Not a cent of the price was paid in cash, though on that day — according to Salvador’s sworn declaration, he had and could have paid — on account — the sum of two hundred dollars. It is true that, on the very same day, he told Leonard “ I have no money,” and Leonard replied “ You can give me notes.”

This Salvador did, and took possession — without being asked by, or informing any one whither he was going, Leonard said: “ Good evening; I hope all of you shall have better luck than I have had.” He then left penniless the store in which, during four years, he.had entertained ap'enniless brother, and that brother did not even invite him to spend the approaching night in the home where — for so long — they had lived, boarded and slept together. Did they so part because Leonard was angry with Salvador for having accepted his proposition, or because that .unnatural parting had been pre-arranged and agreed upon between the two brothers ? The creditors, bills in hand, had already knocked at the door, a cloud big with petitions, citations and notices of seizure was about to burst on the store, and — to avert its effects, the semblance of a sale was interposed between the creditors and the merchandize, the price of which — to the knowledge of vendor and vendee — was and is yet unpaid.

Leonard, after the sale from him to Salvador, sold some wagons for five hundred dollars, and, at about that time, drew out what he had in bank and even overdrew his account, and, with that money, paid unnamed merchants, and did not pay any one of the merchants who had supplied his store in September, October, November and December 1876, nor the balances due to his many clerks and employees. Do not these facts justify at least a presumption that he divided with his brother — took all the funds which had been realized from the sale of the unpaid merchandize, and apparently transferred to his brother, to be held for his and their common benefit — whatever there remained in the store.

The marked ability with which Salvador’s pretensions have 'been sustained, has partly disguised the enormity of those pretensions, the baldness of as palpable a fraud as ever was attempted. “It looks funny,” as said to Leonard by one of his creditors, “that you sold your store for notes.” He replied that he considered as the most honorable of his debts that which he had thus paid.

We learn from the evidence, that Leonard was indebted to one G. Grande — his friend and countryman — for three thousand five hundred dollars, which he swore he borrowed from him. To that friend, in part payment of that indebtedness, he transferred three of the notes subscribed in his favor by Salvador, and that too indifferent transferee stood by, allowed the store to be sold by the sheriff, and did not claim the vendor’s lien securing the notes which he took from Leonard.

Had it been proven that — for wages due from Leonard to Salvador —a lot of merchandize equal in value to the amount of the wages, had been transferred from the notoriously insolvent merchant to a favored clerk, the sale — though fraudulent — would have been merely voidable; but — here—the whole of a store valued at $5807, was sold by an insolvent and pressed debtor, in part for wages claimed, and which — if due — • would amount to only $1350. To presume that they are due, we would have to presume that one who — outside of his wages — was absolutely without means, has — for the space of eighteen months provided for himself the necessaries of life, without drawing a cent from his salary, without incurring any liability toward the employer, at whose table he took his meals, in whose bed he slept. This is incredible.

The fact that — after the sale of the twentieth of January — Salvador hastened to buy in his own name, for what he calls his store, was only an additional precaution resorted to by him to manufacture and obtain evidence, to conceal a manifest simulation.

Be this as it máy, no insolvent merchant can sell to his insolvent clerk, for the latter’s wages, and at-twelve, eighteen, twenty-four and thirty months’ credit, a stock of goods valued by themselves at more than four times the amount of the wages, and the price of which both the merchant and the clerk know to be yet due to those who furnished the goods. Such a sale is, beyond a doubt, a fraudulent simulation. Were it simulated but in part, how could we distinguish its real and unreal parts, and decide which of the contents of a store sold as an entirety, should pass to one who did not intend to buy, and which should be considered as still belonging to one who did not intend to sell. The fraud, in this instance, does not merely consist in the endeavor to give or obtain a preference over other creditors, but to place out of those-creditors’ reach the property which is their common pledge, and that fraud tainted and nullified, at its very inception, the whole of a 1 contract, no branch of which ever had a legal existence.

The judgment appealed from is affirmed with costs.


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    No. 6984.
    Joshua C. Thoms vs. B. W. Sewell et al.
    In a suit for damages on the ground of a wrongful sequestration of land, the judgment rendered in a former suit between the same parties, involving the ownership of the land, can not be pleaded as res adjudieata. The objects aimed at, and the causes of action in the two suits are entirely different.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, special judge.

      W. F. Kernan for plaintiff and appellant.

      Wedge & Moore for defendant.
   The opinion of the court was delivered by

Spencer, J.

In 1869 J. C. Thoms sued B. W. Sewell and Mrs. Kennedy to recover and be decreed owner of a tract of land, and to annul a sale thereof made by Mrs: Kennedy to Sewell as fraudulent. •

Pending this suit, Sewell commenced suit against Thoms, claiming ownership of this same land, and had the same sequestered.

Thoms filed a plea of Us pendens to Sewell’s suit, averring that “ all the matters therein alleged are pending between defendant and plaintiff, in the case of Thoms vs. Sewell and Mrs. Kennedy.”

The case of Thoms vs. Sewell and Kennedy was finally decided by this court in favor of Thoms. See 24 An. 209. He was decreed owner of the land.

Subsequent to this decision, on the fourteenth of June, 1870, Sew-ell’s counsel filed in his suit against Thoms a written consent that the plea of lis pendens be sustained and the suit dismissed — which was accordingly done.

Thereupon, Thoms brought the present suit on the sequestration bond given in Sewell vs. Thoms for damages.

The defendant pleads the judgment of this court in Thoms vs. Sewell and Kennedy in bar and as res adjudieata.

The court below sustained the plea, and plaintiff appeals.

It is difficult to see by what process of reasoning the court below reached such a conclusion.

There is but one of the elements of res adjudieata present, to wit: identity of the parties to the two suits. The objects of the two demands and the causes of action are wholly different.

In the suit of Thoms vs. Sewell and Kennedy the cause of action was ownership, and its object the land. In the present suit the cause of the action is an alleged wrong by seizure of property, and its object money.

In the suit of Thoms vs. Sewell and Kennedy, plaintiff did not and could not demand damages for a sequestration which was not levied until afterward in another suit. He could not have legally claimed it by way of reconvention even, in this other suit of Sewell vs. Thoms, as both parties lived in the same parish. 24 A. 208; 12 A. 114; 17 L. 176; 10 A. 10; 3 A. 588. Defendant’s counsel insists, however, if there is not technically res adjudieata plaintiff is at least estopped by his assertion in his plea of lis pendens, that all the matters alleged in Sewell’s suit against Mm were involved in his suit against Sewell and Kennedy.

That statement was legally true, for the thing in dispute in both cases was the land, and we are at a loss to see how that averment now estops plaintiff from claiming what he could only claim after those suits had terminated.

The judgment appealed from is erroneous, and it is ordered, adjudged, and decreed that the same be set aside and reversed, and that defendant’s plea of res adjudieata and estoppel be overruled, and that this cause be remanded to be proceeded with according to law; defendant and appellee paying costs of appeal.


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    No. 6993.
    Howard McKnight vs. the Parish of Grant.
    Land which has been donated to 'a parish and dedicated to public use, can not be seized for any debt due by the parish.
    The contractor who furnishes the material and builds a jail for a parish, under a contract with the police jury of the parish, has the mechanics’ lien and privilege on the jail, to secure the payment of what is due him under the contract.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Machinan, J.
    R. A. Hunter for plaintiff and appellant.

      A. Gazabat, Parish Attorney, for defendant.
   The opinion of the court was delivered by

Spencer, J.

The police jury of the parish of Grant by ordinance appointed a committee to contract for building a public jail at Colfax; made the necessary appropriation, and levied a tax of two mills to pay for the same. The contract was made with plaintiff, who undertook to furnish all the material and build the jail for $1000, payable in cash when completed. There is no dispute that he fully complied with his contract.- The parish authorities received the building, and have ever since occupied it. Plaintiff duly recorded his contract. Only $155 have been paid him, and as it seems no effort is made to collect' the tax, or if collected as it has not been paid to him, he brings this suit for the balance due him, and claims the mechanics’ and builders’ lien on the jail and on one acre of ground on which it is situated, under article 3249 of the Civil Code.

The district judge gave him a judgment for the amount due, but refused to recognize his lien, and plaintiff appeals. It seems that the land on which the jail is built was expressly .bought and donated to the parish, for the purpose of a jail lot. We have lately held, in the case of Parish Plaquemines vs. Foulhouze, that under such circumstances the land has been dedicated to public uses and can not be seized for debts of the parish. That it does not constitute property of the parish in the ordinary acceptation of that term, being out of commerce and belonging to the public.

But because the soil upon which a' building is erected can not be sold to pay the cost of its erection, it by no means follows that the building itself may not be. The 3249th article of the C. C. gives the lien “upon the building and upon the lot of ground;” and then proceeds to provide for the case where the lot of ground belongs to another than the party having the work done, and where, therefore, it is not alienable in satisfaction of the debt. . We think the spirit of this article requires us to recognize the lien on the building. It would be monstrous to allow the parish to appropriate another man’s material and labor in the form of a house, and refuse to pay him because the land on which it is built is inalienable, and out of commerce. The builder in such a case as this may be in some sort assimilated to a vendor of the materials and labor represented in the house. Good conscience forbids that he be denied the right to subject the building to his debt.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and is so amended as to recognize and render executory the building lien claimed by plaintiff on and upon the jail building of the parish of Grant, at Colfax, and that the same be seized and sold to satisfy plaintiff’s judgment. That in other respects the judgment appealed from be affirmed, and that defendant pay the costs of appeal.


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    No. 6541.
    The State vs. Judge Spencer.
    Dying declarations made by a deceased person under a sense oí immediate and impending death are admissible in evideneo.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      H. N. Ogden, Attorney General, for the State.

      Griffith & Brown for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was convicted of murder without capital punishment.

The sole question presented is as to the admissibility of the dying declarations of the deceased. The bill of exceptions discloses that the deceased was shot about nine o’clock at night. The witness details the facts as follows:

“ As the shot was fired, the deceased fell and cried out, ‘ Oh Lord! I am shot!’ Being asked where, he replied, ‘In the stomach.’ His bowels were protruding from his abdomen, he was too weak to help himself, and his wife and witness took hold of him and put him to bed. He asked witness to pour water on his wound, which witness did. After he had been placed in bed and after he had asked witness to pour water on his wounds, he said the accused, Judge Spencer, had shot him. Immediately after saying this, witness said to him, ‘ Gilbert you had better pray.’ He told witness to pray for him; and immediately afterward he called his children around his bedside and bade them goodbye, and said to his wife take care of the children as best she could. He then became speechless and died at five minutes past twelve o’clock.”

Dying declarations are admissible only when it appears that they were made under a sense of immediate and impending death. The actions and declarations of the deceased must manifest his consciousness of and belief in speedy dissolution. Greenleaf, vol. 1, sec. 158. Archbold, vol. 1, p. 140.

We think the condition of the deceased at the time of and his actions and declarations accompanying' and immediately folloioing his statement that the defendant had shot him bring this case within the rule, and that the judge a quo did not err in admitting them as declarations made in the presence and with a full sense of impending death.

The judgment appealed from is affirmed.


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    No. 6870.
    Victor Laurent vs. A. J. Beelman and F. M. Beelman.
    A judgment rendered against a party who was not cited, and who has not put in an appearance, is null and void.
    A final judgment on default, signed by the judge in chambers, is absolutely void.
    Such a judgment, to be valid, must be read, and signed, in open court. A void judgment can not be revived.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Marks, J.

      Breaux, Fenner & Hall for plaintiffs and appellants.

      J. D. Augustin for defendants.
   The opinion of the court was delivered by

Spencer, J.

On the thirteenth of March, 1867, plaintiff filed a suit claiming judgment against the defendants separately as joint indorsers of a note. He prayed for citation of each defendant, as usual, and that each of them be condemned to pay Mm one half the note.

A citation issued, addressed to “F. M. Beelman, Parish of St. Charles.” The sheriff’s return states; “Received copies of the within summons and petition accompanying, on the thirteenth of March, 1867, and served the same- on A. J. Beelman and F. M. Beelman, personally,” etc.

...Judgment by default was confirmed against both defendants, and “ signed on the tenth of August, 1867, at chambers.”

On the tenth of July, 1877, plaintiff filed petition to revive this judgment, citing both defendants personally to show cause, etc.

A. J. Beelman appeared and pleaded as cause against revival that the so-called judgment was rendered on default without his having ever been cited, and was signed at chambers and not read and signed in open court as required by law. The court below sustained this defense and rejected plaintiff’s demand. Plaintiff appeals.

There is no error in the judgment. Both objections are fatal to plaintiff’s pretensions. A judgment rendered without citation to or appearance of defendant is absolutely null and void. C. P. 612. It is not a judgment. It has no existence. It never drew the breath of life. You can not keep alive that which never existed. This was the view taken by the majority of this court, after much consideration, in the late case of “ Conery vs. Rotchford, Brown & Co.”

It is equally clear that where a final judgment, on default, is not “read” and “signed” in open court, but at chambers, the act is void and does not constitute a judgment. C. P. 543 and 546. A final judgment is the act of a court, and not of a judge only. Unless there is a special statute authorizing it (or perhaps a special agreement, on which we express no opinion), no final judgment can be rendered, read, or signed at chambers. The law says expressly they must be “read in open court,” C. P. 543, and “signed before the adjournment of court.” C. P. 546. There being no judgment, even inform, there is nothing to revive.

The judgment appealed from is affirmed with costs of both courts.


text:
    No. 7023.
    The State vs. James V. White.
    As a general proposition, the question whether an application for a change of venue in a criminal case shall be granted, or refused, is a question which is confided exclusively to the discretion of the lower court.
    The charge given by the judge to the jury, in the trial of a criminal case, to the effect that unless it was shown that the killing was done while the accused and the deceased were clutched, or in actual combat, it was not done in the heat of passion, but through malice, is fatally erroneous, and will authorize the setting aside of the verdict. The special grade of crime involved in a homicide, is not to be determined by the mere fact that the parties were, or were not, at the moment of the killing engaged in an actual struggle, but by other facts showing malice, or the absence of malice.
    APPEAL from the Seventh Judicial District Court, parish of West Feliciana. Yoist, J.

      H. N. Ogden, Attorney General, for the State.

      B. O. Wicklifje for the defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The prisoner was convicted of murder and sentenced to death. Upon appeal to this court, he complains of error in the ruling of the lower court in several particulars, of which two only need be noticed.

The prisoner moved a change of venue upon his own affidavit, and the supporting proof of four witnesses, that he could not have a fair and impartial trial in the parish of West Feliciana, because of the existence of prejudice in the public mind against him. No evidence was offered by the State in rebuttal. The judge refused the motion, declaring the evidence insufficient, by which we understand him to mean, it did not convince him that an impartial trial could not be had there. It is also stated in the bill of exceptions that the four witnesses proved the fact, and we read this as an awkward and inaccurate way of saying that the witnesses swore to the fact, for if it were meant that the fact of inability to have a fair trial was established, it would be difficult for the judge to explain why he forced the prisoner to stand a trial which was not fair.

The question, as it is presented in this case, is not within our cognisance. We are not prepared to say that a case might not arise, presenting a question of law on the refusal of a judge to grant a change of venue, of which we would have jurisdiction. But as a general proposition it is true that a change of venue in a criminal cause is confided to the discretion of the district judge exclusively, whose decision upon its propriety, rightfulness, and necessity is final. State v. Bunger, 11 Annual 607.

It was held in Indiana that the refusal of the lower court to change the venue in a criminal cause can not be assigned for error, and this is based on the phraseology of the statute there — “ which change of venue the court may at its discretion award ” — and consequently the discretion when exercised was not examinable on appeal. Findley v. the State, 5 Blackf. 576. Spence v. the State, 8 Blackf. 281. In Illinois, a prisoner is entitled to a change of venue whenever by petition, verified by affidavit, he brings himself within the requisitions of the statute, and the statute says the court shall in that case award a change. The language is peremptory, and does not admit the exercise of discretion. Clark v. the People, 1 Scam. 117. In Missouri, where the affidavits are required to be made by respectable witnesses, and the. court refused the change because it did not appear that the witnesses were respectable, the Supreme Court held they must be assumed to be so until the contrary appeared, and that the court had not the right to refuse the change as a mere matter of discretion. Freleigh v. the State, 8 Mo. 606.

Our statute is, if on the hearing and examination of the evidence adduced, the judge shall be of opinion that the party applying can not have a fair and impartial trial in the parish where the indictment is pending, he shall award a change of venue. The absolute and imperative language of the statutes of Illinois and Missouri is absent here. The judge’s opinion is to be formed after hearing the evidence, and is to control his action, and his ruling thereon refusing a change can not be reviewed by us. It might be otherwise under a different application of the law to another state of facts.

The lower court charged the j ury that unless it was shewn that the homicide was committed in actual combat, and a scuffle, a struggle was going on between the two parties, or while they were 1 clutched,’ it was not done in the heat of passion, but was done through malice aforethought.

This charge, made broadly and without qualification, was calculated to mislead the jury. It is not true that a homicide is mitigated from murder to manslaughter only when it is committed while the parties are actually ‘ clutched.’ Where persons fight on fair terms, blows having been given by each, and after an interval, one draws a deadly instrument and inflicts a deadly injury on the other, it is manslaughter only, although it would be murder if the one inflicting the injury entered the contest dangerously armed and fights under an unfair advantage. State v. Hildreth, 9 Iredell, 429. The true principle is, that if a person, on whom an assault is made with violence, or circumstances of indignity, resent it immediately by killing the aggressor, and act therein in heat of blood and under that provocation, it is manslaughter only. State v. Tackett, 1 Hawks, 210. State v. Jarrott, 1 Iredell 76. The same rule applies to homicide in mutual combat, which is -attributable to sudden and violent anger occasioned by the combat, and not to malice, as when two meet, not intending to quarrel, and angry words are used and a conflict suddenly occurs, in which blows are mutually given. If no unfair advantage is taken in the outset, and the occasion is not sought for the purpose of gratifying malice, and one seizes a weapon and strikes a deadly blow, it is homicide in heat of blood, and though not excusable, yet it is not murder. Manslaughter is principally distinguishable from murder in this, that though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice either express or implied, which is the essence of murder, is presumed to be wanting, and the act being imputed to the infirmity of human nature, the correction ordained for it is proportionally lenient. Com. v. Webster, 5 Cush. 295.

The fatal blow may have been inflicted while the parties were actually grappled, and yet the homicide may be murder, and on the other hand the blow mayhave been inflicted while the parties were not actually grappled and the homicide may be manslaughter. The fact that the combatants were, or were not, actually grappled, when the fatal blow is given, does not constitute the distinguishing feature of the one crime from the other, but the circumstances that preceded and attended the combat, which either shew malice prepense, or repel its actual or implied existence, determine the grade of the crime.

The jury were not correctly instructed, and a new trial must therefore be had.

It is ordered and decreed that the verdict of the jury be set aside, the judgment of the lower court be avoided and reversed, and the cause be remanded for a new trial.


author: Egan, J.

text:
    No. 6910.
    The State vs. Joseph Christian.
    The trial of a criminal case without any plea having been filed by. or on behalf of the accused, is fatally irregular; and any verdict against the accused, in such a ease, will be set aside.
    Where the record in a criminal case fails to show that the accused was present in court, at anytime from the moment of his arraignment’to his sentence, the judgment and verdict against him will be annulled, and set aside.
    When the entry in the record of a criminal case states that the jury were duly sworn and empaneled, it will be presumed that all of the jurors were sworn, although only eight of them are expressly mentioned as haying been sworn.
    Denunciation of another jury, for having found a wrongful verdict in a different ease, (made by the District Attorney in the argument of a criminal case,) although objectionable, is not ground for setting aside a verdict.
    Indictments charging the crime of larceny, and burglary, may be repeatedly amended during the trial of the case, in order to set forth the names of the real owners’of the property charged to have been stolen.
    Even after the jury in a criminal ease have been impaneled, the statement of defendant’s counsel that they would impeach the character of a brother of one of the jurors, who was a witness for the State, may sometimes, but not always, make it proper for the court to excuse the juror.
    Where the accused, who is charged in one indictment with burglary, and grand larceny, has been convicted of burglary, the entry of a nolle proseguí, as to the charge of grand larceny, will not warrant an arrest of judgment.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.
    H. N. Ogden, Attorney General, for the State.

      Jno. B. Winder and Thos. L. Winder for defendant.
   The opinion of the court was- delivered by

Egan, J.

The defendant avers that he was indicted for burglary and grand larceny, and such seem to be the entries in the record. He was convicted and sentenced to fourteen years in the Penitentiary at hard labor, and from that sentence appeals. He assigns as error—

Eirst — That no plea was entered, and there was no joinder of issue.

Second — That he was not present in court during the trial or any proceedings from arraignment to sentence, and was deprived of the right of confronting the witnesses who appeared against him.

Third — That the jurors who tried the case were not sworn; and,

Fourth — That'the District Attorney was permitted by the court, against the protest of the prisoner’s counsel, to make an improper argument to the jury.

As to the first ground, it appears that the prisoner was arraigned, i. e., called to the bar to answer or plead to the matters charged against him in the indictment, whereupon, through counsel, he asked permission of the court to withhold his plea, which was granted. He does not appear at any subsequent time to have been called upon to enter or to have entered plea. There was therefore no issue made up between him and the State, without which it was irregular to proceed to trial, as there was nothing to try. The object of arraignment is to inform the accused of the nature of the accusation against him, and to evoke plea.

As to the second ground of error, that the prisoner was not present in court during the trial or any proceedings from arraignment to sentence, the entry in the record is in these words: “This case having been regularly fixed for trial was this day called and taken up and tried and the persons whose names follow were duly impaneled and sworn to try this case, viz.: Then follow the names of the jurors, of the regular panel to the number of eight, and other entries showing the drawing of talesmen to complete the jury, and after two several amendments of the indictment, there appears this further entry: “And the said jurors after having heard the evidence adduced and the charge of the court, retired to'their room to consider their verdict.” Then follows the returning of the verdict into court, the verdict, the polling of the jury and the recording of the verdict, and finally the judgment or sentence of the court based upon the verdict, while nowhere after the arraignment until the sentence does it appear from the record that the accused was present in court otherwise than by counsel. ‘Whatever moral impressions may exist in the mind of the court, and however the rule “ omnia prcesumuntur” may apply in civil matters, no such presumption exists in criminal cases, and however reluctant we are to do so after a case has passed through all the stages of a trial, we can not sustain so loose a record of conviction, nor disregard the constitutional right of the accused to be confronted with the witnesses and to be present in court during all the stages of the trial, and at every stej) in the progress of the case. This ground of error is also well taken.

As to the third ground, that the jurors who tried the case were not sworn, it will be seen from the entry already quoted that eight jurors of the regular jury panel were sworn to try the case. The sheriff then proceeded to draw from the box of tales jurors the ninth juror, and that box being exhausted, to summon other talesmen, of whom three, whose names are given were chosen to complete the jury. No special mention is made of the swearing of three additional or tales jurors. But we think, though not very closely conjoined, that they are embraced by the general entry in relation to the due impaneling and swearing of the jurors in the case which precedes the names and numbers of all the jurors.

Fourth — As to the improper argument by the District Attorney, which is charged to have affected the jury unfavorably, it consisted in a reference to and denunciation in strong language of an alleged improper acquittal the day before, and in calling upon the jury not to render a like verdict of which they would be-ashamed.

While we differ with the judge a quo as to his right to restrain ■counsel within reasonable limits and to pertinent grounds in argument, he was the best judge in this instance, and seems to have regarded it as simply in bad taste, we can not consider it from the record before us as an error which will warrant our disturbing the proceedings below on this ground. The defendant’s counsel excepted to the District Attorney being permitted to amend the indictment twice on the trial. Both amendments are as to the names of the oimers of articles charged in the indictment to have been stolen, and whatever may have been the case at common law or may be now in other States, such amendments are allowed in this State by the express terms of the statute. See B. S. 1870, section 1047. A bill of exceptions is taken to the refusal by the court at the request of defendant’s counsel, after his challenges were exhausted, to excuse under the discretionary power granted the court a juror for the reason that defendant’s counsel declared their purpose to impeach the character of a brother of thé furor, a witness for the State. The court states at the foot of the bill that “no impeachment of the witness was made except in argument.” While this is not made a cause of challenge by the accused, the State and the law desire an impartial trial unaffected by bias or prejudice; and while this matter was discretionary with the court when called upon by the defendant’s counsel, the reason given by the judge a quo -for refusing to excuse the juror is hardly a sufficient one, as it was only developed after the juror was impaneled and “ non constat,” but that, as stated by. him, the counsel may have been prevented from attempting the desired impeachment for fear of prejudicing the juror, brother of the witness. Of this we would only remark that such a statement by reputable counsel under circumstances not suspicious, and where it could not prevent an impartial trial, might well have warranted the excusing of the juror by the court. We are not however prepared to say that the failure to do so in this instance was error. After the verdict the District Attorney entered a nolle prosequi as to the charge of grand larceny, of which, as well as of burglary, the jury had found the defendant guilty. Upon this his counsel bases a motion in arrest of judgment, and charges that the District Attorney abandoned the prosecution, and did after verdict rendered enter a nolle prosequi, which had the effect of annulling the verdict as rendered. However questionable is the use of the nolle prosequi in such a case after verdict, we do not think it good ground to arrest the judgment. Burglary and larceny, whether grand or petty, are among the exceptions to the rule that two distinct offenses 'should not be charged in the same indictment, which would not therefore be liable to the charge of duplicity. It is well settled that in such a case the jury might have found a verdict of guilty of burglary and not guilty of larceny without affecting the conviction. Wharton’s American Criminal Law, title Duplicity. If then the jury might so find, wo see no reason why the prosecuting officer might not, with leave of the court, so order without affecting that part of the verdict in regard to the other charge of burglary. Besides, the judge a quo seems to have entertained grave doubts whether the indictment was really one good for any thing more than burglary; and if it was not, then there is still less in the motion to arrest the judgment for a nolle prosequi as to a crime not properly charged in the bill; and in the Ford case, just decided, we Jield it to be in law an indictment for burglary only.

Much as we regret the necessity under the iaw of so doing- in regal’d to an offender of this class, if he indeed be such, the very loose and irregular record before us leaves us no alternative but to sustain his appeal upon the grounds favorably passed upon in this opinion.

It is therefore ordered and adjudged that the verdict and sentence appealed from be and they are avoided and set aside; that the accused be detained in custody to answer to the indictment, and the case be remanded to the court below to be proceeded with according to law and the principles of this opinion.


text:
    No. 7044.
    Succession of John L. Pointer, On Opposition of Messrs. Barrow & Pope and V. J. Dupuy.
    This court has not jurisdiction of a suit against the executor of a succession, when the amount claimed is less than §500, and it further appears that all the assets of the succession have passed into the hands of the heirs.
    A PPEAL from the Parish Court of Iberville parish. Crowell, J.

      Samuel Matthews for executor and appellant.

      Geo. Wailes for Barrow & Pope, opponent and appellee.

      Ed. B. Talbot for Y. J. Dupuy, appellant.
   The opinion of the court was delivered by

DeBlanc, J.

In this case, we have before us three parties: the law firm of Barrow & Pope and Y. J. Dupuy — now, and so far as wo are informed by the pleadings and evidence, the only creditors of the succession of John L. Pointer; and Gervais Schlatre, the executor of said deceased’s last will. Those creditors claim against the succession — the first, the sum of two hundred and fifty dollars, with the privilege allowed to attorneys by the 128th section of the Revised Statutes — the other, the sum of one hundred and four dollars, the amount of a judgment obtained by him against said succession. Those creditors claim that the fees and judgment due to them should be paid — by preference — out of a sum of one thousand dollars received by the executor, for said succession, on the sixth of May 1872, subsequent to the homologation of his final account. This is proved and admitted.

To those creditors’ demand, the executor’s answer is that ho has paid, under orders of the parish court, all the money that has come into his hands, except the aforesaid sum of one thousand dollars, which— without any order of court, but with the consent of the universal legatee of John L. Pointer, he has paid — on the sixth of May 1872 — to Mr. Matthews, an attorney-at-law, by whom -he was represented as executor in an important suit reported in the 24th A. That the whole of whatever composed the succession of said Pointer, has been delivered to his legatee, and that he has now neither money, nor property belonging to said succession. This is not- denied by the creditors, and this is shown by the evidence.

The executor’s statement of the disposition made of the sum of one thousand dollars, was — as would have been a regular account rendered by him, opposed by Messrs. Barrow & Pope, on the ground that said amount was recovered to the succession by their professional exertions, and that the privilege securing the payment of their fee for said collection, bears on 'the amount so recovered by them. As to Dupuy. his opposition is based on his judgment. -

The opposition of Messrs. Barrow & Pope was sustained, that of Dupuy dismissed, and he and the executor have appealed.

Is this a ease of which we have jurisdiction ? The amounts involved in it, whether we consider them together or separately, are under five hundred dollars. There are no funds to be distributed — no dispute as to the correctness of Mr. Matthews’ claim — no dispute as to the validity of Dupuy’s judgment — no dispute as to the character and amount of the account of Messrs. Barrow & Pope; The succession of John L. Pointer is closed and has passed to his universal legatee. Under these circumstances, we can not entertain jurisdiction of this case.

The appeals taken by Dupuy and the executor from the judgment of tho lower court are — therefore—dismissed at their costs.


text:
    No. 6970.
    John A. Klein vs. E. M. Cramer, Sheriff, et al.
    Where an injunction is asked lor in a case that comes within the jurisdiction of the District Court, and the District Judge is absent, and the parish judge is legally recused, the parish judge ol an adjoining parish may grant the injunction.
    APPEAL from, the Thirteenth Judicial District Court, Madison parish. Hough, J.

      James B. Corkern for plaintiff and appellant.

      J. Tyson Lane for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff desired to obtain an injunction in a matter within the jurisdiction of the District Court. The district judge was absent, and an affidavit to that effect was made by plaintiff’s attorney, who then applied to the parish judge for the injunction. The parish judge recused himself because of interest, and the injunction was then granted by the parish judge of an adjoining parish.

Defendants moved to dissolve because of want' of authority in that parish judge to grant the injunction. There were other causes assigned which we will assume were not seriously made, one of which was that the affidavit of absence was made by the attorney of the plaintiff instead of the plaintiff himself.

It is not at all clear from the statutes, which judge would have authority to direct the issuing of an injunction in the circumstances presented here. There is no .doubt that the parish judge has authority to grant injunctions in the absence of the district judge. It is conferred in three distinct sections of the Revisal of 1870, viz 1747, 2027, and 3195 the last two being fuller in one respect than the other. It is also provided that when the parish judge is recused or can not act, either the parish judge of an adjoining parish, or the district judge, may grant all orders in cases in the parish courts which might have been granted by the parish judge, if he had not been recused, sec. 3194. But gucere— who is to grant the desired order if the case be in the district court, and neither the district nor the parish judge is able to act ?

Art. 128 of the Code of Practice, as amended, furnishes the only clue to the solution of the difficulty, and we think the power of the parish judge of an adjoining parish to grant the order in this case is fairly dedúcible from it.

' The parish’ judge of any parish may grant orders of every kind, in the absence of the parish judge of an adjoining parish, or of the district judge from his district, or when these judges are interested, or are recused, or can not act, and this power is extended to all sorts of cases in their courts, wherein the orders might have been granted by the judges themselves, if they had not been absent or recused. -

This is a paraphrase of the article, or rather a transposition of its clauses, which enables one to catch its rgeaning more readily than the text eloes.

The parish judge of Tensas properly granted the injunction, the district judge being absent from his district, and the parish judge of an ádjoining parish (Madison) being recused and unable to act.

The lower court ruled the contrary, and even inflicted damages for wrongfully suing out the injunction, which, considering the dubiety and haziness in which the statutes have enveloped the question, might well have been deemed as not legally incurred. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and the injunction is.reinstated, and the causéis remanded to be proceeded in its trial according to law, the appellees paying costs of appeal.

Mr. Justice Spencer recuses himself in this case.