author: Todd, J. Bermudez, C. J. Bermudez, C. J.

text:
    No. 7867.
    Peter Delaney and Wife vs. A. Rochereau & Co.
    The appellant, on the day the appeal was returnable, applied for and obtained an extension of thirty days to file the transcript: Meld, that the additional delay granted by the Court, only commenced to run from the three judicial days allowed by the law after the return day.
    Agents are not liable to third persons for non-fpasance, or mere omissions of duty. They are responsible to such parties only for the actual commission of those positive wrongs, for which they would be otherwise accountable in their individual capacity, under obligations common to all other men. The doctrine, under the common and civil law, does not differ on that subject. Judgment affirmed.
    APPEAL from tlie Pifth District Court for the Parish of Orleans. Sogers, J.
    • Jos. P. Mornor and F. W. Baker, for Plaintiffs and Appellants:
    On Motion to Dismiss.
    1. The law grants three judicial days after the return day within which the transcript of appeal may be filed. C. P. 589 and 883; 1 Hennen Dig. Appeal YHI (d.) No. 3, p. 82.
    2. The court may grant further time to file the transcript, hut the time granted by the court are not judicial but running days, which begin only after the expiration of the delay granted by law. 33 An. 119.
    3. An order of court granting further time to file a transcript, which reads, “ that the delay for filing the transcript of appeal heiein he extended for thirty days,” excludes the three judicial days allowed by law. If it had been intended to include them the language would have been “ extended to thirty days.”
    On the Merits.
    1. Every one is bound to keep his buildings in repair, and is answerable for all damage occasioned by their fall, when caused by neglect to repair. C. C. Arts. 670, 2322; 7 An. 321; 14 An. 806 ; L. B. 10 ; C. P 658; 5 B. & S., 78; 10 Allen, 368 ; 9 Cent. B. J. 385.
    "2. An agent is liable under the civil law to third persons for damages resulting from his non-feasance, as well as inis-feasanco. O. C. Art. 3003; Code Napoleon, 1992; Domat, P. 1, B. 1, T. 15, Sec. 3, Arts. 1 and 4; Story on Bailments, § 165; Story on Agency § 309 ; Shearman & B. on Negligence §§ 112 and 115; Evans Principal and Agent, p. 328; Wharton’s Daw on Negligence § 533; 12 Mod. 488; 28 Me. 463 ; 5 Gilm. 425; 30 Conn. 329 ; 98 Mass. 77; 30 N. X. 78; 8 Barb. 358 ; 3 E. D. Smith, 591; 19 Wend. 343.
    3. Whenever the agent’s negligence directly injures a stranger, the agent having liberty of action in respect to such iüjury, then such stranger can recover from the agent damages for such injury. Wharton on Negligence, § 535; Harriman vs. Stowe, 57 Mo. 93; Beaugillot vs. Callemor, 33 Sirey, 322; C. C. 2315, 23L6, 2317; Boston Beef Packing Co. vs. Stevens, 12 Bed. Bep. 279 ; 9 Com. Bench, 377.
    4. It was not of contributing negligence in plaintiff’s child to entera building where a public dance and entertainment were being given, where such entertainments had been given before, and where an admission fee was charged, when invited by an older companion who paid his entrance fee.
    5. A person entering a building under such circumstances, which is quietly in the possession of other persons, who have the apparent right to so use the building, and which has been so used before, is not a trespasser. 51N. X. 476.
    6. It is the duty of owners of buildings to keep them in repair, and when vacant to keep them securely fastened or guarded.
    7. A trespasser can recover for injuries wantonly inflicted, as by the fall of building from neglect to repair it.

      8. Where the injured person is a child .recovery can be had, because a child cannot be considered as appreciating the danger, or bound to inquire by what authority the house is open and used. ’83 Penn. 332; 80Penn.74; 17 Wall. 660; 4Bing.628; -1 Addison on Torts, §260, p. 282; Shearman & Rodtield on Negligence, § 504; 102 Mass. 572; 19 Conn. 507; 1 Q. B. 29; 2 Thompson on Negligence, § 39, p. 1192.
    (7. 28. Schmidt) for Defendants and Appellees;
    Ox Motion to Dismiss.
    The appeal in this oase was made returnable on Monday, the 1st of March, 1880. .On that day an extension of thirty days was granted for filing the transcript. This delay or extension expired on the 31st of March, 1880. The transcript was not filed until the 2d of April, 1880. This was too late. 32 An. 28; 28 An. 901; 24 An- 333. etc.
    The motion to dismiss for such a cause is not required to be made witbin three days of the filing of the transciipt. It maybe made at anytime, at least before the case has been fixed for trial. 4 An. 359; 9 An. 21; 10 An. 75.
    On the Merits.
    The line of a man’s private domain, like the boundary line between nations, is not to be crossed without permission. Cooley on Torts, p 302.
    There is no duty owing to a trespasser from the owner of the property upon which he intrudes. Cooley on Torts, p 660; Wharton on Negl., $ 351; Sourdat, de la Responsibility, Yol. 2, p. 21.
    At common law the general rule is, that an infant is responsible for bistorts, as any other person would he. Cooley, p. 103. ' And, in respect to trespasses, there is no exception in the law in favor of minors. Sikes vs. Johnson, 16 Mass., 389;
    Our Code expressly declares that “ the obligation arising from an offense or quasi offense is binding on the minor.” Rev. C. C., Art. 1785; and faith er provides that ” he (the minor) is not restdtuable (cannot he relieved) against the obligations resulting from his offenses or quasi offenses.” Rev. C. C. Art. 2226.
    As said by Rogron, under Art. 1310 O. N., offenses and quasi offenses are all those unlawful acts which cause damageto others. Offense (délit), when there was the intent to injure j quasi offense (quasi-délit), when no such intent existed.
    A trespass may be intentional or unintentional. Cooley, p 438.
    If intention al, it is an offense; if unintentional, a quasi offense. In neither case is the minor reliovable there against.
    Even if the plaintiffs’ son had beeu a licensee, no right of action would have accrued against defendants; for, no duty is owed to amere licensee, and he has no cause of action for negligence in the place he is permitted to enter. Parker vs- Portland Publishing Co., Cent'l Law J., Yol 9, p. 108. •
    In an action like this, for negligence, the evidence must be confined to the lime and place and circumstances of the injury, and the negligence then and there; but what occurred to
    . others, at other times, more or less remote,- is collateral and inadmissible. Ibid.

    It was clearly not the mere alleged stare of decay of the gallery, but the act of the trespasses, that caused its fall, and therefore plaintiff's cannot recover, for, causa próxima, non remota spectator. Cooley, pp. 68 to 70; Wharton on Agency, §380; Wharton on Negl., §§ 134,137.
    The evidence tends to show that the gallery was sufficiently strong for usual and ordinary purposes, but tbat, both on the night of this accident and a week before, it had been subjected by trespassers, to such extraordinary pressure by their rushing out in great numbers to its front railing, as eventually to wrench out of their sockets in the brick wall the iron bars which formed its chief support.
    At common law, the doctrine is well settled that no agent, except the master of a ship, is oxer liable to third persons for his own non-feasances or omissions of duty in the course of his employment, or, in other words, for his failure to perform the obligations of his principal. Story on Agency, §§ 308, 309; Ewell’s Evans on Agency, pp. 437, 438, and the latter portion of Chapt. IY; Shearman & Redf. on Negl., 3d cd., §§ 111, 112.

      And the same doctrine seems to obtain in the civil law, which holds that agreements have effect only on the contracting* parties; they do not prejudice third persons. La. Code of 1808, p. $70, Seo. 6 of Chap.'3d of title III, Art. 65. See, also, p. 264 of Amendments to that Code by the framers of the Code of 1825 ; C. hT. Art. 1165. Accordingly, the Court of Cassation, in the case of Thomassin vs- G-atouillat, decided on the 27th July, 1869, (Dal- . loz, J. G-. 1809, p. 1, p. 350). that the responsibility of the mandatory for the consequences . of his neglect in the course of his employment, could only be invoked by the mandator, and not by third persons.
   On Motion to Dismiss.

The opinion of the Court .was delivered by

Todd, J.

This motion is on the ground that the transcript was not filed in time.

The appeal was made returnable on the first Monday in March, 1880, being the first day of that month.

On that day the appellant applied for further time to complete the transcript, and on this application an order was made “that the delay for filing the transcript of appeal herein be extended for thirty days.”

The delay granted by law for the filing of the transcript was the time intervening between the date of the order and the return day and three days added thereto; C. P. 589, 883; that is, three days after the return day; and within these three additional days, the delay could not have expired and the transcript could have been filed without any extension by order of Court.

Under the order of extension made, the transcript could have been filed at any time within thirty days, beginning from the last point of time within the original delay, that is, within thirty days running from the last day of grace, determinable by the original order. Tlie transcript was filed on the 2d of April, witlvin less than thirty days from such point of time, and was, therefore, seasonably filed. The 6th of March was the first day of the additional delay granted by the order, and the 4th of April was the last day. The law gave the appellant the first delay mentioned, and the thirty days additional were granted him by the Court.

The motion to dismiss is, therefore, denied.

Dissenting Opinion.

Bermudez, C. J.

On the 1st of March, 1880, the day on which this appeal was made returnable, the appellants, producing a certificate of that date, from the clerk of the lower court, to the effect that a delay of thirty days was necessary to complete the transcript of appeal— obtained here, on motion, an order “ that the delay for filing the transcript of appeal herein be extended for thirty days.”

The transcript was filed on the 2d of April following. On the 18th of March last, 1882, a motion to dismiss was made, on the ground that the transcript was filed after the expiration of the extension and, therefore, too late.

The appellants contend that the thirty began running, not on the 1st of March, but on the 5th of March, because it is then that the third judicial day following the return day, which was the 1st of March, expired, and that they consequently had until the 4th of April to file the transcript.

The thirty days which the appellants wished, applied for and obtained, were the thirty days required, not by them, but by the clerk, to complete the transcript. The certificate of that officer, dated the 1st of March, shows that “ a delay of thirty days is necessary.” The clerk meant and virtually said, thirty days, to be reckoned from the 1st of March.

Whether the application for further time be made on the very return day or within the three judicial days following it, is immaterial, provided it be made before .the expiration of the last day.

The extension allowed is simply an expansion of the delay of grace, whether it has not' begun to run at all, or has run in part, to the last day of the “ further time” allowed. 28 An. 901; 32 An. 28, 801.

The argument that by ordering “ that the delay for filing the transcript of appeal herein be extended for thirty days,” the Court has enlarged the time allowed by law, by thirty days, has no force. It does not take this case out of the operation of the jurisprudence on that subject, for there is not one instance, in which further time was allowed, in which the same argument could not be made. What becomes, then, of the adjudications which have computed the delay allowed from the day on which it was asked Ruling to maintain the appeal simply sets them at naught.

The transcript should have been filed on the last of the thirty days, that is, on the 31st of March. Filed two days subsequently, it came too late. 32 An. 28; 28 An. 901; 24 An. 333, and uureported cases.

The motion to dismiss, though made long' after the 31st of March, 1880, was in time.

Appellees cannot be held to constant vigilance after the legal delay has passed, in watching, day by day, the docket, to see at what time the negligent appellant' will file the transcript.

“ A party who neglects to file the transcript seasonably, will be considered as having abandoned his appeal.” 3 L. 251; 4 An. 350; 9 An. 21; 10 An. 75.

The argument that the delay was extended ror, and not to thirty days, may be ingenious, but it attempts a distinction without a difference, and reduces itself to a mere play upon words.

When “ further tíme ” is allowed by this Court, under Article 888, C. P., to bring up the transcript, the extension granted is to he computed from the day on which it is asked.

The authorities to which our attention has been called by appellants, and which have received it, do not support the specious theory invoked.

I think that the appeal should be dismissed.

Poci-ié, J. I concur in the dissenting opinion of the Chief Justice.

On the Merits.

The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to bold agents liable to third parties for injury sustained in consequence of an alleged dereliction of duty, or non-feasance, on their part.

The plaintiffs sue to recover $25,000'as damages, for great bodily injuries and suffering, resulting in the death of their minor son, occasioned by the giving way, in September, 1879, of the gallery of a house iu this city, owned by a non-resident, but, at the time, in the possession and under the control and administration of the defendants, as his paid agents.

The defense was a general denial.

Prom a judgment in favor of the defendants, the plaintiffs have appealed.

The evidence shows the following facts:

The house in question and the adjoining one, both under the same roof, belonged at the time to Denis Coutreaud, who then resided in Prance. A. Roehercau & Co., the defendants, were his agents, having control as such of the property. Half of the property was rented and occupied. The other half was not rented and was vacant. There was in front of the- entire building, which was two-story, a balcony, as wide as the sidewalk. It needed repairs. The defendants knew of its condition. The vacant tenement had been permitted by the agents, on two or more occasions not long before the calamity, to be used for purposes of amusement. On the 18th of' September, a party, a raffle and a dance, was given in the unoccupied portion of the building, without tlie authority or knowledge of the defendants, by an individual, who bad procured a key from a neighbor and taken possession of the premises. He gave the entertainment in the upper story, charging an admission fee. The son of plaintiffs; an intelligent lad thirteen or fourteen years old, and a girl, in whose company he kept, on payment of the fee, obtained entrance. There were from thirty to thirty-five persons at the party. At about half-past ten o’clock iu the night, a number of persons, twelve or thirteen, among- whom was young Delaney, moved, it is inferred rushed, to the gallery, and were upon it when it gave way, and all who were on it fell with it. The young man was found unconscious on the sidewalk, with iron braces and some flooring upon him. He was removed from the spot to his home.' Tlie injuries received consisted in a concussion of the brain and fractures of the parietal and occipital bones of the skull, as well as bruises on the arms and legs. He is said to have been insensible to the end. Ho received all possible surgical and other attention, but died early in the morning.

The contention is, that as the injuries .received caused intense suffering, and as they were occasioned by the falling of the gallery, which was in very bad condition, to the knowledge of the defendants, who, as the agents of the owner, were bound to keep it in good order, and who without justification neglected to do. so, their Ann and each member thereof are responsible in solido for the damages claimed.

The theory on which the suit rests is, that agents are liable to third parties injured, for .their non-feasance.

In support of that doctrine, both the common and the civil law are invoked.

At common law, an agent is personally responsible to third parties for doing something which he ought not to have done, but not for not doing something which he ought to have done, the agent, in, the latter case, being liable to Ms principal only, Ifor non-feasance! or mere neglect in the performance of duty, the responsibility therefor! must arise from some express or implied obligation between particular] parties standing in privity of law or contract with each other. No" man is bound to answer for such violation of duty or obligation except to those to whom he has become directly bound or amenable for his conduct.//

Every one, whether he is principal or agent, is responsible directly to persons injured by his own negligence, in fulfilling obligations resting upon him in his individual character and which the law imposes upon him, independent of contract. * No man increases or diminishes Ms obligations to strangers by becoming an agent."5 If, in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either, by his negligence, in respect to duties imposed by law upon him in common with all other men.

An agent is not responsible to third persons for any, negligence in the performance of duties devolving upon him purely from his agency, since he cannot, as agent, be subject to any obligations towards third persons other than those of his principal. Those duties are not imposed upon him by law. He has agreed with no one, except his principal, to perform them. In failing to do so, he wrongs no one but his principal, who alone can hold him responsible.

The whole doctrine on that subject culminates in tile proposition that wherever the agent’s negligence, consisting in his own wrong doing, therefore in an act, directly injures a stranger, then such stranger can recover from the agent damages for the injury. Story on Agency, 308, 309; Ib. on Bailments, 165; Shearman & Redfield on Negligence, 111, 112, Ed. 1874; Evans on Agency, notes by Ewell, 437, 438; Wharton on Negligence, 535, 78, 83, 780.

It is an error to suppose that the principle of the civil law, on the liability of agents to third persons, is different from those of the common law. It is certainly not broader.

While treating of “ negligence in discharge of duties not based on contract,” which had not previously been considered, Wharton, beginning the third book of his remarkable work on Negligence, says:

The Roman law in this respect rests on the principle that the necessity of society requires that all citizens should be educated to exercise care and consideration in dealing with the persons and property of others. Whoever directly injures another’s person or property by the neglect of such care, is in culpa and is bound to make good the injury caused by his neglect. The general responsibility is recognized by the Aquilian^aw, enacted about three centuries before Christ, which is the basis of l¿pmaií»}¡nrisprudence in this relation. Guipa of this class consists mftiuly in commission, in faciendo. Thus, an omission by a-stranger to'perform an act of charity is not culpa; it is culpa however to inadvertently place obstacles on a road, over which another falls and is hurt; to kindle afire by which another’s property may be burned} to dig a trench which causes another’s wTall to fall. He subsequently states that the following are cases in which' no responsibility can possibly attach :

“When'a man does everything in his power to avoid doing the mischief, or when it is of a character utterly out of the range of expectation, the liability ceases and the event is to be regarded as a casualty.
“ If the injury is due to the fault of the party injured, the liability of the party injuring is extinguished.
Quod quis ex sua culpa damnum, sentit, non intelligiiur sentiré.” Pomponius. Wharton, 780, 300.

The allusion made by certain writers to the Roman law, which gives a remedy in all cases of special damages, must necessarily be understood as referring to instances in which the wrong or damage is done, or inflicted by an actual wrong doing or commission of the injuring party.

The Article of the French Code, 1992, from which Article 3003 of onr R. C. C. derives, which is to the effect that the agent is responsible not only for unfaithfulness in his management, but also for his fault and mistake, contemplates an accountability to the principal only, and this by reason of the assumption of responsibility by the acceptance of the mandate. How, indeed, can an agent be responsible to a third person for the management of the- affairs of his principal, or for a mistalce committed in the administration of his property ? The responsibility for fault is likewise in favor of the “ mandant ” alone.

Tlie Napoleon Code, Art. 11G5, contains the formal pro vision that agreements have effect only on the contracting parties; they do not prejudice third parties, nor can they avail them, except in the case mentioned in Article 1121. This last Article refers to stipulations in favor of autrui, which become obligatory when accepted.

The Code of 1808 contained a corresponding article, but that of 1825 did not; neither does the Revised Code of 1870. It must not be concluded, however, that the omission to incorporate the provision in the subsequent legislation must be considered as a repudiation of the doctrine.

The distinguished compilers and framers of the Code of 1825 account, for the omission to reproduce, because the provisions were already embodied in other Articles, and might, be deemed to be exceptions to the undoubted rule that contracts can only avail, or prejudice the parties thereto. Projet du Code de 1825, p. 264.

. Quod inter alios actum est, aliis ñeque nocet, ñeque prodest. § L. 20, De instit. Act; see also, Pothier on Oblig., Nos. 85, 87; Domat, L. 1, t. If, Sec. 3, No. 8 ; L. 2, t. 8; Troplong Maud., No. 510 ; Durauton 10, No. 541; Toullier 6, 341; Toullier 7* 252, 306 ; Demolombe 25, No. 38; Laurent 10, No. 377; Larombiere, 1, 640.

That such is the case was formally recognized by the Court of Cassation of France, in the case of Thomassin, decided in July, 1869, and reported in Part 1 of Dalloz J. G. for that year. The syllabus in the case is in the words following:

“ Le mandataire n’est responsable des fautes qu’il commet dans l’exócution dn mandat, qu’envers le mandant.”

See also, J. G. Vo. ObL, Nos. 878 et seq., and Vo. Mandat, No/213.

The case of Beaugillot vs. Callemer, 33 Sircy, 322, far from expounding a doctrine antagonistical to that prevailing, as was seen, at common law, and which we consider as well settled likewise under the civil law, is fully confirmatory of the same.

It was the case of an agent condemned to pay damages for obstructing, by means of beams, a water course' partly closed up by masonry, and thus causing an overflow, in consequence of which a hay crop was damaged. The plea of respondeat superior did not avail. Tlie Court well held that the commission of the act constituted a quasi offense, in justification of which the mandate could not be set up.

This anterior view of the case relieves the Court from the necessity of passing upon the other questions presented, relative to fault, trespass, contributory negligence, suffering and damages.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Poci-ié, J.

license: Public Domain

text:
    No. 8365.
    Succession of Louise E. Clay, Wife of Charles Flory.
    A vendoc’s privilege on an immovable must be enforced, even when tlie act creating it was not recorded on tlie day that tlie contract was entered into, if no other creditor has acquired a mortgage on the property affected thereby. As to all other third persona, the privilege is valid from the date of the recording of the act creating it. Judgment affirmed.
    APPEAL from the Civil District Court, for the Parish of Orleans.Bightor, J.

      Braughn, Bucle efi Dinlelespiel and Bine. Meunier, for Opponents and Appellees.

      A. B. Villeré, for the Administrator, Appellant.
   The opinion of the Court was delivered by

Poci-ié, J.

In his account of administration, the administrator ignored the vendor’s privilege securing the notes held by Léche and Bouny, on tlie ground that the contract creating the privilege was not recorded on the day that it was entered into, and he has taken this appeal from a judgment enforcing the privilege claimed by said creditors, who had opposed his account.

Tlie record shows that no other mortgage existed or was claimed against the property burdened with the mortgage, and vendor’s privilege held by opponents Lécbe and Bouny, and lienee tlie administrator erroneously construes Article 3274 of tlie Civil Code, which reads as follow's:

“No privilege shall have effect against third persons, unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no jireference on the creditor, who holds it, over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was entered into.”

Tlie article provides two distinct remedies. In the first part, it destroys tlie effect of privileges as to third persons, if they have not been recorded in the manner required by law.

In the second part, it provides that even when recorded, privileges can confer no preference over creditors who hare acquired a mortgage, unless the registry was made on the day that the contract was entered into.

. The article most be construed with reference to the preceding Article, (3273) which provides that .privileges are valid against third persons, from the date of the recording of the act, or other evidence of indebtedness, as provided by law.

lienee, it follows, that in a contest between the holder of a privilege and other persons w’ho have not acquired a mortgage, whether they be themselves privilege creditors or not, the privilege will affect such third persons from the date of its registry, whether it was recorded on the day that the contract was entered into or not. But as to creditors who have acquired a mortgage, and to them alone, it is sacramental, that the privilege should have been recorded on the very day that the contract was entered into.

The failure to record the privilege on the day that it -was created, does not destroy it as to third persons, but it destroys the preference contemplated by law, over other creditors who have acquired a mortgage. Gay vs. Bovard, 27 An. 290. Appellant confidently relies in support of his position on the decision in the case of the Succession of Marc, 29 An. 412; but we find no relief for him in that opinion.

In that case the contest was between Gay arre and Soye, both mortgage creditors ; and it was held that Gayarre’s privilege resulting from an act of sale, which had not been recorded oh the day that it, had been passed, could confer no preference to him over Soye, who held a mortgage of anterior date, and of anterior registry, and it was correctly held, that “ as against mortgages recorded anterior to the registry of the privilege, this latter has effect as such only when recorded on the day of the date of the contract creating it.”

In the present case there is no contest between the holder of the. privilege and a mortgage creditor ; and the District Judge has correctly-held that opponents’ vendor’s privilege must take rank and have effect as such from the date of its registry. Appellees have filed a motion for an amendment of the judgment in some minor particulars, but as they are silent on the subject in their brief, we consider the motion as abandoned, especially as we see no error in the judgment of the District Court.

Judgment affirmed.


author: Fenner, J.

text:
    No. 7551.
    Miss Lizzie Dickson vs. John Chaffe & Sons.
    1. Bills of lading taken by a consignor in Ins own name and held by bimself, establish no title in the consignor, which he did not possess without them.
    S. The bailee of goods who has fully and in good faith accounted to his bailor therefor, cannot be held responsible by third persons of whose advor.se claims he was not notified.
    APPEAL from t-lie Fifth District Court for the Parish of Orleans. Rogers, J.
    TF. 8. Benedict, and Jos. P. Hornor, for Plaintiff and Appellant.

      Bayne & Denegre, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff shipped on the Steamer Joe Bryarly, thirty-four bales of cotton, consigned to Octave Hopkins of New Orleans, and received bills of lading therefor.

- The sheriff of Caddo Parish, in execution of a writ issued by the District Court of the Parish .of Bossier, in a suit entitled Hamilton & Co. vs. Mrs. Dickson, seized the cotton, took possession thereof, and subsequently shipped the same on the steamer Ashland,” consigned to John Chaffe & Sons, under bill of lading taken in his own name, as sheriff. Chaffe & Sons received the cotton in due course, sold t-liej same, and on the demand of' the sheriff, consignor, paid over the proceeds to him, and took his receipt therefor, having no notice of any adverse claim.

Plaintiff brings the present action to recover said proceeds from Chaffe & Sons.

She has evidently mistaken her remedy, which is against the sheriff or the seizing creditors.

She says she was the owner of the cotton. Admit it. She says it was wrongfully seized under a writ commanding the seizure of the property of a different person. Admit that. Chaffe & Sons were, in no manner, parties to, or responsible for this wrong. The cotton was consigned to them by the sheriff. They received and held it for the sheriff. They sold it by his orders, and paid over to him the proceeds. In these acts they performed only their clear legal duties. Plaintiff says they knew the cotton had been originally shipped in her name and that sjie held bills of lading for it.

Tlie record does not clearly establish this ; but, if it were true, that would uot establish even that the sheriff was a wrong-doer. The bills of lading, remaining in her own hands and not transferred to third persons, established no ownership in her, which she did not possess \ without them, and left the cotton subject to the seizure of her creditors, or of any creditors of the true owner.

She says the'law informed Chaffe & Sons that a sheriff has no right to shiii cotton under seizure out of his jurisdiction or to sell the same there. Non constat, however, that the sheriff might not have had the authority of the court and the parties to do these things. And what right had Chaffe & Sons to question his authority ? The cases of Holliday vs. Hamilton, 11 Wallace 565, and “The Idaho,” 3 Otto 575, strenuously relied upon by plaintiff’s counsel, have no application to this question.

The first was a suit by the transferree of bills of lading against the seising creditor, for wrongful seizure, the very action appropriate here.

The other case is too inapplicable to require comment. Neither, in any mauner, controverts the legal truism that the bailee of goods who has, fully and in good faith, accounted to his bailor therefor, cannot be held responsible by third persons, of whose adverse claims he was not notified. Cooley on Toils, p. 456; Story Bailm. 8th ed. §§ 266, 450, 582.-

Judgment affirmed.


author: Todu, J.

text:
    No. 8579.
    The State of Louisiana vs. Jacob G. Disch.
    A verdict must be responsive to the indictment. So where a person is charged with burglary, and the jury return a verdict of guilty of trespass, the Judge does not err in sending the jury back to the jury room in order that they may render a legal verdict. The verdict of trespass was not responsive to the charge of burglary. And the Judge may refuse such verdict, though he may have erroneously instructed the jury that such a verdict could be returned, and may correct his error.
    Where an indictment for burglary contains two counts, charging respectively a higher and lower grade of the offense, and tlie jury are instructed that if they find the accused guilty, they must return a verdict of “ guilty of first count,” or 1 guilty of second count ” as the case may bo, and in disregard of such instruction they return a general veidict .of guilty, the Judge is authorized to refuse to receive such verdict, and a final verdict of ‘ ‘ guilty of second count,” rendered after again retiring, will not constitute such an irregularity as to vitiate the sentence upon it. Judgment affirmed.
    APPEAL from the Seventh District Court, Parish of Catahoula. JSlam, J.

      J. G. JEgan, Attorney General, for the State, Appellee :
    1. The act of the Judge a, quo, in referring the case back to the jury for their consideration’ when they have brought in a verdict not responsive to the charge, (is legal and correct
    2. A verdict for trespass cannot be found against a party charged with breaking and entering.
    3. Objection to the competency of a juror should have been made when he was presented.. It is too late to raise such objection in a motion for a new trial. 26 An, 383.

      4. An indictment will not be set aside for duplicity when the crimes charged in the various counts are kindred, growing out of the same act. 30 An. 61.

      JD. B. Gorham, for Defendant and Appellant:
    On Motion to Record Verdict or Trespass.
    A verdict may be recorded nunc pro tunc at a subsequent term. 3 Wharton 3192.
    The crime of trespass is included in that of burglary. There cannot be a burglary without a trespass.
    A verdict of trespass is responsive to the charge of breaking and entering in the first count of the indictment ¿ the question of actual breaking being a fact for the jury to consider.
    The term breaking, being more comprehensive, includes the terms deface or injure, in Section 827, K. S.
    A verdict of trespass is an acquittal of the burglarious charges, and the accused is entitled to the same as a matter of right.
    The court cauuot set aside a verdict that acquits the accused. 2 Hawkins, c 47, Section 12.
    On Motion for Hew Trial.
    The court erred in refusing to receive the verdict of trespass, which is responsive to the charge of breaking in the first count.
    The refusal of the court to receive the verdict of trespass hadan improper influence on the minds of the jury.
    A verdict of trespass, being an acquittal of the felony, the court was without authority to send the jury back to reconsider their verdict. 2 Hawkins, c. 47, Sections 11 and 12.
    After the verdict of guilty was recorded, by direction of the court, it could not be altered or amended in auy substantial degree. 2 Hale, P. C. 300 ; 3 Yol. Graham & Waterman on Hew Trials, p. 1406.
    The vei diet of guilty being uncertain, the court should have ordered a new trial. 5 An. 330.
    On Arrest of Judgment.
    An indictment containing two counts, upon which similar judgments cannot be rendered, is fatal for duplicity. 20 An. 145.
    Two counts, which arc contradictory to and inconsistent with each other, cannot be joined in the same indictment. 15 An. 621.
    The verdict of guilty, having been recorded by direction of the court, cannot be set aside by the court, and being inconsistent, is null. Hilliard on Hew Trials, p. 117, §29 ; 3 Graham & Waterman on Hew Trials, p. 1406.
    Assignment of Error.
    The judgment of guilty as charged, is not responsive to the third verdict of “guilty of the second count.”
    The terms guilty of burglary convey no idea of the crime committed by the accused, nor of thepenalty he should suffer, and none can he inflicted under such a judgment.
    A judgment not responsive to the verdict is null 3 Graham & Waterman on Hew Trials, p. 1386.
   The opinion of the Court was delivered by

Todu, J.

The defendant was indicted for burglary, was tried, convicted, and sentenced to imprisonment at hard labor for three years, and to pay a fine of $250 and costs, and from this sentence has appealed.

There were two counts in the indictment. The first charged the defendant with the felonious entering and breaking into a storehouse in the night time ; and the second count charged the felonious entering in the night time, without breaking.

The jury first brought in a verdict of guilty of trespass, having been previously instructed by the Judge presiding, that this was one of the verdicts they could render in the case. The Judge refused to permit the verdict to be recorded, and stated to the jury that he had erred in charging them that they could return such a verdict, and then instructed them that they could only find the following verdict's : Guilty under the first count,” guilty under second count,” or “ not guilty,” and sent them back to the jury room for further deliberation.

The jury tliereuirou retired, and again returning, brought in a verdict of guilty as charged.” This verdict the Judge first directed to be recorded, but immediately countermanded the order, not, however, before the clerk had recorded it, it appearing from the bill of exceptions that the clerk had written down part of the verdict before receiving the order to 'record. The Judge refused to have this verdict announced, and again directed the jury to retire. They did so, and in a short time returned with a verdict of guilty of second count.” This verdict was recorded and the jury discharged.

The proceedings relating to these last two verdicts and the refusal of the Judge to receive the first one, are charged as being irregular and illegal, and bills of exceptions were taken to them, and they were made grounds of motions for new trial and in arrest of judgment.

1. That the proceedings were irregular is not to be denied, but after a close review of them, and examining the law bearing on the subject, we have arrived at the conclusion that the proceedings in question were not irregularities of so grave a nature as to vitiate the sentence or to deprive the accused of any substantial legal right.

A verdict must be responsive to the charge. This is essential. That the first returned was not so responsive, a reference to the statute relating to trespass, cited and relied on by defendant’s counsel, makes apparent.

The accused was indicted for burglary; one count charging the felonious breaking and entering the storehouse, and the other, as before stated, the entering without breaking.

The Section referred to, relative to trespass, is as follows:

“ Whoever shall wilfully, maliciously or wantonly injure or deface any dwelling house, storehouse, or other buildings, * * * shall be deemed guilty of a trespass,” etc.

Where this verdict is not responsive to the charge, it is null, and the jury was properly directed to retire and bring in a legal verdict, and the fact that the Judge, through error, had instructed them that they could return such a verdict does not affect the question. 1 Archibald, 601, notes; Graham & W. New Trials, Vol. 3, p. 1378 ; 3 Parker Crim. Rep. 552.

2. The second verdict returned was equally unauthorized and detective. Two grades of the same offense, burglary, subject to different penalties, were charged respectively in two counts. The general verdict of guilty,” left it wholly uncertain of what charge the accused was convicted, whether of the highest or lowest grade of burglary. Whether the Judge could legally sentence the accused on such a verdict, the authorities are divided; but this much is certain, that none of them authorized him on a general verdict to impose the penalty for the lighter grade of the offense; and had the sentence then been passed, the accused must necessarily have received a severer sentence than was subsequently imposed, and the sending back of the jury and the refusal of the Judge to receive this verdict, was in interest of the accused and resulted to his advantage. The recording of this verdict, under the circumstances stated, was without legal significance.

3. There is no force in the objection to the indictment for duplicity and misjoinder of offenses, which is one of the grounds of the motion in arrest. The indictment was for burglary, and contained two counts, each charging a distinct grade of the offense. This was entirely regular.

4. Lastly, it is assigned as error that the sentence was illegal in this, that this sentence or judgment was signed by the Judge a quo, and recited, among' the other reasons for judgment, that the jury, by their verdict, found the accused guilty as charged; ” that the sentence was inconsistent with such verdicts, which would have authorized only a sentence for the highest grade of the offense, and that the penalty imposed showed that the accused was sentenced for the lighter grade. It is not often that we are called on to listen to a complaint from an offender that his punishment was lighter than the law allowed, for this seems to be the drift and conclusion of the argument.

In point of fact, however, the record plainly discloses that the accused was convicted of the grade of burglary charged in the second count of the indictment. The verdict of record so declares, and the sentence itself, that is, the actual punishment inflicted, is in exact accordance with the verdict, and the grade of the offense of which the accused was found guilty; and no error in the recital of the proceedings, which usually precede the words defining or fixing the penalty imposed, and which recital is not essential, can vitiate or impair a sentence which the law and the record justified.

We find no error or irregularity in the proceedings entitling the party to relief.

The judgment is, therefore, affirmed.


author: Bermudez, C. J. Todd, J. Todd, J.

text:
    No. 8542.
    Henry Renshaw vs. G. W. Stafford, Executor. R. P. Hunter, Third Opponent.
    The third opponent claiming $1000 out of a larger fund to be distributed by the executor, this court has jurisdiction. 1
    The professional services rendered in the premises by the third opponent, were in fact against the interests of the succession from which he claims payment of his fee. He is, therefore, not entitled to it.
    APPEAL from the Twelfth District Court, Parish of Rapides. Harbin, J.

      T. L. Bayne, Henry BensJiaw Jr., J. G. White and B. J. Boivman, for Plaintiff and Appellant:
    "Whether this case be viewed as coming under the clause in the Constitution of 1879 of “ the matter in dispute,” or under the clause of “the fund to be distributed,” the plaintiff’s right of appeal is clear.
    1.If it he regarded as falling under the clause of “the matter in dispute,” ibis settled beyond controversy that it is the plaintiff’s demand that is the matter iu dispute, and not the demand of third opponent. 31 An. 452; 30 An 623 ; 2 An. 190 ; 8 L. 167; 11 L. 462.
    2.The Convention incorporated this clause from the Constitutions of 1808,1852. 1845 and 1812, with a full knowledge of this construction of that clause, and sanctioned it hy adopting it without change.
    3.If it be viewed as coming under the clause “ the fund to be distributed,” whatever be tbe amount therein claimed, it is the amount of the fund to be distributed, and not the amount claimed by the opponent, that determines the jurisdiction.
    4.The amount in dispute, or the amount of the fund to be distributed, give distinct and separate rights of appeal, and one cannot be made to infringe or cut off the right granted by the other.
    On the Merits
    5.The suit of Rensliaw vs. Stafford, Executor, et als., was a revocatory action. 6 An. 87 ; 11 L. 419; H. D 1030, Nos. 3 and. 8.
    6.The judgment in a revocatory action does not avail those not privies nor parties. 9 R. 28; 6 L. 540. It annuls only so far as the plaintiff is concerned. C. O. 1973 ; 6 An. 552. Therefore, the judgment did not return the property to the succession of Stafford, hut ordered it to be sold to pay the plaintiff. Not being returned to the succession, its proceeds cannot be subject to the claims of the succession.
    7.In whatever light this judgment he viewed, whether as returning or not returning the property to the succession, the plaintiff has a privilege superior to all others.
    8.The services of third opponent are so interwoven with services rendered Mrs. Stafford, who was claiming the property as her own, that they cannot be separated, nor could they, * in representing a claim so conflicting to the interest of the succession, enure to the benefit of the succession.

      B. B. Hunter, propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

Hunter, the third opponent, claims to be paid exactly one thousand dollars out of the proceeds of the sale herein, which realized $12,500.

We have no jurisdiction over his case.

This is not a suit iu which a fund is proposed to be distributed. It is one in which a matter in dispute, a sum of money, is exactly one thousand dollars.

The proceeds of the sale do not, under and by reason of the opposition, constitute a fund to be distributed by this Court.

The. opponent claims no more than one thousand dollars. He did not arrest and could not have prevented the plaintiff in the exercise of his rights over the surplus of that sum, as the proceeds of the sale, and over which there was no contest, below.

Under the pleadings, the question is simply: Whether the third opponent is or not entitled to be paid one thousand dollars or less.

If this Court could, by its judgment, order the distribution of a sum exceeding one thousand dollars, it could entertain jurisdiction, but under no conceivable contingency, can it order anything more than the payment to the third opponent of exactly one thousand dollars.

The proposition cannot be countenanced, that this Court is vested with jurisdiction over any claim for less than one thousand dollars, when sought to be paid out of the proceeds of a sale exceeding one thousand dollars, when the surplus is not a matter of contest.

The clear object of the Constitution was to clothe this Court with appellate jurisdiction in civil matters, only in such cases in which it could render a judgment directing or denying the payment or distribution of a sum of more than one thousand dollars, or when the matter in dispute exceeds that sum.

The phrase: The Supreme Court shall have appellate jurisdiction when the fund to be distributed, whatever may be the amount therein claimed, shall exceed one thousand dollars, exclusive of interest,” Const. Art. 81, cannot be construed so as to apply to a case like the present one, in which the Court cannot direct the distribution of a fund exceeding one thousand dollars.

The circumstances of this case are to be measured, in order to test the question of jurisdiction, by the first part of the Article under consideration, which provides that the appellate jurisdiction of this Court, in civil matters, shall extend to all cases where the matter in dispute shall exceed one thousand dollars. Art. 81, Const.

The claim of the opponent not being for more than one thousand dollars, and there being no fund to be distributed by the Court exceeding one thousand dollars, this Court has no jurisdiction over the case.

It is ordered and decreed, that the appeal herein be dismissed, with costs.

On Application por Rehearing.

Tlie opinion of tlie Court was delivered by

Todd, J.

A careful examination of tlie authorities bearing on this point, satisfies us that we erred in our previous decree, dismissing the appeal for want of jurisdiction.

By Article 81 of the Constitution, this Court has jurisdiction “when the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $1,000, exclusive of interest.”

That part of the Article relating to the “ fund to bo distributed,” was formulated, to correspond with the jurisprudence on the subject, settled by a long line of decisions of this Court. Those decisions we have diligently reviewed, and find that the question of jurisdiction on this point, in such cases, is controlled by the amount of the fund to be distributed; that this constitutes the object of dispute;, that if the entire fund is claimed by one party, and that fund exceeds the amount required to give jurisdiction, that the jurisdiction vests, though only a part of that fund is claimed by the other party and that part is below the amount which, under other conditions, is necessary to give jurisdiction. In such a contest, it is considered that a question has arisen that involves the distribution of the entire fund, one side demanding the whole of it, and the other denying such right, leaving for decision how the fund is to be divided or how disposed of. The decisions are uniform in support of this view. 8 L. 167; II L. 462; 2 An. 190; 29 An. 327 ; 30 An. 625; 31 An. 453.

In a recent case decided by us, Succession of Duran, not yet reported, the majority of the Court did not think that the decisions above cited .were applicable to that case, inasmuch as by the effect of a prior judgment, not appealed from, homologating tiie account and ordering the distribution of the fund wherein not opposed, the dispute had been restricted to a sum remaining much below the appealable amount.

Our previous decree, dismissing the appeal, should, therefore, be set aside.

Tlie Chief Justice adheres to the original opinion dismissing the appeal.

On the Merits.

The opinion of the Court was delivered by

Todd, J.

The plaintiff brought a suit to cause to be annulled a tax sale of a plantation belonging to the succession of Leroy A. Stafford, and to have his mortgage recognized and made executory against the property.

The defendants in that suit were the executor of the estate, G-. W. Stafford, the widow of the deceased, Mrs. S. C. Stafford, the purchaser of the land’at the tax sale, and several of her vendees 8f portions of the land sold by her after her purchase.

The tax sale in question was sought to be annulled, on the ground of fraud and certain illegalities in the proceedings. There was judgment annulling the sale and recognizing the mortgage of the plaintiff, and ordering the sale of the property to pay it. The property was sold and bought in by the idaintiff, Henry Bensliaw, the mortgage creditor.

The defendants in the suit of nullity referred to, and to subject the property embraced in it to the payment of Renshaw’s mortgage, were represented by R. P. Hunter, Esq., attorney-at-law. After judgment ivas rendered in the case, and pending proceedings for the sale of the property mortgaged, Mr. Hunter, by third opposition, claimed a superior privilege on the proceeds of the sale, over the mortgage creditor, for one thousand dollars, being the amount of his fee for defending the suit in question. Prom a judgment in his favor for $350, this appeal was taken.

The plaintiff resists the claim of the opponent mainly upon the ground that the services rendered by him were not for the benefit of the succession, but opposed to its interest. The object of the suit, as stated, was to annul a fraudulent and illegal tax sale, by means of which the succession had been stripped of almost its entire property. This attempt of a creditor to bring back the property into the succession and make it liable for his debt, was resisted by the executor of the estate and the purchaser at the tax sale, and others, to whom she had sold. In their resistance to this demand of Renshaw, the defendants were assisted and represented therein by the present opponent. It would naturally strike one, from this statement of the case, that the professional services of the opponent, rendered under such circumstances and upon such issues, were not for the advantage of the succession against which he now prefers the charge for his said services, but were really opposed to the succession, as they were in resistance to the effort to bring back the property illegally disposed of, to pay a debt of the succession. Por such services, those who were opposing this attempt, were justly chargeable and should pay. It is true that in that suit prescription was pleaded against the creditor’s demand, and was overruled. Conceding that this feature of the defense was intended for the benefit and protection of the succession, when we consider that it was doubtless interposed also for the protection of the illegal salej and for the benefit and at tlics instance of those interested to maintain it, and considering the entire character of the action and the defense thereto, we cannot conclude that the opponent is entitled to a judgment against the succession, and a preference on the fund in question for any amount. Should the plea of prescription .be regarded as made for the sole benefit of the succession, yet the evidence does not enable us to separate this part of the defense from the rest, and make a separate valuation of the opponent’s services exclusively on this point. For these reasons, we think the claim of the opponent should have been rejected.

This being the first decision on the merits, the opponent is not precluded from applying for a rehearing.

It is, therefore, ordered, adjudged and decreed, that our previous decree dismissing the appeal be set aside, and it is now further ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the demand of R. P. Hunter, opponent, be dismissed, at his costs in both Courts.

Rehearing refused.


author: Beksiüdez, C. J. Fenner. J.

text:
    No. 8626.
    The State of Louisiana ex rel. V. Rothang vs. Wm. Voorhies, Judge of the Second City Court of New Orleans.
    When, in an ejectment suit before a court of limited jurisdiction, the defend ant alleges a lease for an amount beyond such jurisdiction, the court is not, on the mere allegation, bonnd to dismiss the suit. It has a right to inquire into the correctness of the averment. It is only where such lease is found to exist, that the court will desist from the case and dismiss it.
    A prohibition does not lie in such a case to prevent the court from ascertaining whether the defense to the jurisdiction is, in point of fact, well founded or not.
    ApPLICATION for a Prohibition.

      Jos. P. Bornor and J?. 1Y. Baker, for the Relator:
    1. Whenever the monthly or yearly rent paid by the tenant, or the lease which he, the tenant, shall-allege to hold, shall exceed the sum of $100, the District Court alone has jurisdiction of a suit for ejectment. Rev. Stat., §215(5.
    2. The jurisdiction of the court in such a suit is determined, not by the lease which the landlord may set up, hut by the lease which the tenant shall allege to hold. Same.
    3. The Supreme Court has supervisory jurisdiction over the City Courts of New Orleans, and will, under writs of prohibition and certiorari, examine into the jurisdiction of such courts and the regularity of their proceedings. 32 An. 1185; 32 An. 555; 33 An. 923; State ex rel. Hernandos vs. Houston, 34 An. N. H.

      4. The City Courts of New Orleans have no jurisdiction over a landlord's suit to eject a tenant, when the tenant excepts to the jurisdiction of such Court ratione material, setting up a monthly or yearly lease exceeding $100.
    The Respondent in propria persona.

   The opinion of the Court was delivered by

Beksiüdez, C. J.

This is an application for a prohibition, coupled with a certiorari.

The complaint is, that the City Judge, whose jurisdiction is limited to one hundred dollars, has exceeded the bounds thereof, in a suit for the. expulsion of a tenant, who had alleged to hold a lease to the premises, the yearly rent of which exceeds that sum.

The Respondent has made an elaborate return, to show that he had jurisdiction over the case, and that his judgments overruling the defense to his jurisdiction and ejecting the defendant, are correct, as the latter held no lease and was merely a tenant by the month, paying ten dollars monthly rent.

In the exercise of the plenary powers of control and supervision, conferred upon it by Article 90 of the Constitution, this Court will not lightly interfere with the action of inferior courts on questions of jurisdiction, where such do not appear on the face of the papers, but are determined by the value of the matter in dispute, to be ascertained by evidence on the subject. It is only in cases of glaring abuse of a legal discretion on such issues that it will interpose its authority. We find no enormity in the case before us.

The pleadings show that the defendant, ivlio was represented by the plaintiff as a tenant by the month for a small sum, has both by exception and by answer, alleged himself as holding a lease to the premises, from which he is sought to be expelled, the yearly rent whereof was one hundred and twenty dollars.

The question then presented is : Whether on this mere allegation, the City Judge, was bound to dismiss the suit for want of jurisdiction.

Section 2156 of the R. S., reads :

Whenever the monthly or yearly rent paid by the tenant., or the lease which he shall allege to hold, shall exceed one hundred dollars, then the summary proceedings * * * * for the possession of the leased property, shall be instituted and carried on, before any Parish or District Court having competent jurisdiction,” etc.

The Statute is clearly that if the lease which the tenaut alleges to hold, shall (be found to) exceed one hundred dollars, the proceedings shall be before a court of superior jurisdiction.

It is an indisputable proposition that where a question of law can be determined only after a question of fact has been investigated and settled, the court which is called upon to solve the former, must necessarily pass primarily on the latter. Such investigation is an irresistible condition precedent.

The Statute quoted authorizes the inferior Judge, before whom an expulsion suit is brought, to enquire into the correctness of the allegation of the defendant, where the latter alleges a monthly rent or an annual lease, under which more than one hundred dollars are to he paid. It distinctly says : If the lease alleged “shall exceed.’'’ Whether it exceeds or not the amount stated, is a question to be decided, not by the defendant, but by the court. The defendant must allege and prove and the court must decide, maintaining or declining jurisdiction, according to the proof administered.

If the mere averment of a defendant, sued for the possession of rented or leased property, that the rental exceeds one hundred dollars, were sufficient to defeat jurisdiction, the natural and unreasonable sequence would be, that previous to bringing an ejectment suit, before the court, to which it would properly belong, a plaintiff should institute the proceeding before a court of different powers and have it to decide that it has no jurisdiction over the case, but that another court has. This is simply an absurdity^ destructive of the object of the Act. Whether the rent to be paid, under an alleged lease, monthly or yearly, exceeds one hundred dollars, is a question legally within the jurisdiction of a City Court. To that end it may hear evidence and pass judgment.

It is, therefore, ordered and decreed, .that the restraining order herein made in limine be rescinded, and that the petition for a prohibition be refused at the cost of Relator.

Fenner, J., dissents.

Dissenting Opinion.

Fenner. J.

The general rule unquestionably is, that, the jurisdiction of a court over a cause, is determined by the allegations of tiic plaintiff’s petition, but I am satisfied that, under the provisions of the Revised Statutes, Secs. 2155 and 3156, the law has established an exception .to this rule. The first Section invests the City Courts with the general jurisdiction, at the demand of the landlord, to eject tenants whose leases have terminated, either by limitation or by any breach thereof. Specific allegations are not generally made in the formulation of claims before such courts; but the Section requires none except that the lease is terminated, and such pleading would present no test of jurisdiction. But Sec. 2156 provides that, “ whenever the monthly or yearly rent paid by tiie tenant, or the lease which he shall allege to hold, shall exceed the sum of $100, then the summary proceedings allowed by the preceding Section shall be instituted and carried on before the District Court.”

Thus, it is apparent that, on the face of the pleadings, the test of jurisdiction is to be found, not in the claim of the landlord, but in the pretensions of the tenant.

When, in answer- to such a claim before a City Court, the tenant allei/es that he holds a lease exceeding $100, in monthly or yearly rental, how is it possible that such court should exercise jurisdiction expressly and exclusively conferred, by the terms of the statute, upon the District Court? The reasons of the law-maker are obvious. When such a claim is presented by the tenant, a controversy is, at once-, created, involving more than $100, and exceeding the jurisdiction of the City Court.

The pretension that the City Court can maintain its jurisdiction over such a controversy, by hearing evidence and deciding the controversy adversely to the tenant, seems to me, to the last degree, untenable.

I admit the difficulty arising from the case, with which proper jurisdiction may be defeated by false and fraudulent allegations, and it would, doubtless, have been wise for the legislator to have provided against it by requiring the tenant’s answer to be sworn to, or by other proper regulation; but he has not done so, and Judges should obey his mandate. *

I apprehend that evil consequences of a much graver character may flow from the doctrine now approved by the Court.

It practically invests these inferior courts with power to' determine, 'in the last resort, all controversies between landlord and tenant, touching the existence and validity of leases of whatever value. A landlord desirous of obtaining possession of property of the rental value of $10,000 per annum, institutes his ejectment process before the City Court. The tenant sets up a lease. of that value. The court hears evidence and decides against the defendant. His judgmentis instantly executed hy the ejectment of the tenant. What remedy exists? No appeal lies from the decisions of these courts to any tribunal. Prohibition affords no relief as this Court now decides. Certiorari would be equally ineffectual, because the testimony before these courts is not reduced to writing, and the record certified to this Court would afford no means of testing the correctness of the Judge’s action.

I cannot assent to an interpretation of the law leading to such possible results, and, therefore, dissent from the opinion and decree.


author: Pociiá, J.

text:
    No. 7558.
    Aleas Haney vs. Henry Trost.
    In an action for damages for defamation, malic© is the essence of ©lander, and ife must be proved, either by direct testimony or by implication flowing clearly from the language' and conduct of tlie defendant.
    Hence, damages cannot be recovered against a party who informs against an employee of a railroad company, of conduct injurious to the company, of which the informant's wife is a stockholder. Judgment reversed.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, J.

      A. JS. Hillings and B. K. Gutter, for Plaintiff and Appellee :
    1.Evidence in justification cannot ho relied on under the general issue.
    2.When malice is shown to the satisfaction of the jury, the protection attached to privileged communications may not ho availed of. (Townshend on S. and L., p 320, § 209.)
    3.Malice proven, privilege is lost. (Odgers on L. and S. 267.) Bona fides is necessary to protect a communication, as privileged. {Ib.etld.)

      4,It mala fides was manifest, in the opinion of thejury, on competent testimony, malice has been established. (Starkie on S., pp. 280, 287,288; Dumnan vs. Bigg, Ibid., 2r8,290, 398, n )
    5.Hearsay is probable ground tor belief; but aman must act bona fide on honest belief of the truth of statements made to him by others, whom he believes to be creditable persons, to be justified in acting upon such statements, if he believes there is reasonable and probable cause for his so doing. (Townshend on S. and L., p. 397, § 341, n. 3; Oockburn, O. J., in Ohatfield vs. Oomerford, 4 Fost. and L. 1008.)
    0. Words spoken of plaintiff in the way of his profession or trade are actionable without proof of special damage. (16 E. 389 ; 12 An. 894; Odgers on L. and S., pp. 63, 64, and cases cited, andlb. 16-20, 64, 69, 70.)
    7.Words resulting in damage are actionable. (O. C. 2315.)
    8.Plaintiff having been discharged from his employment, by reason of the effect of the slander of defendant, the subsequent profitable engagement of plaintiff will not abridge the liability of defendant. (16 L. 389; 14 E. 198; 3 An. 69 ; 11 An. 206 ; Townshend on S. and L. p. 293, § L98.)
    9.Punitive damages may be given if thought proper by thejury, without evidence of malice beyond the words. (Odgers on E. and S., p. 292 and n )
    10.A verdict in an action for slander will not be set aside for excessive damages unless thei e be some suspicion of unfair dealing, or unless the case be such as to furnish evidence of prejudice, partiality or corruption on the part of the jury. (Townsheud on S. aud L , p. 492, § 293.
    11.Punitive damages are not measured altogether by the ability of the party to pay. Courts • will not lighty disturb verdicts of this kind.
    12.Falsehood in a statement, in a matter likely to effect injury to another, must he regarded as malicious wrong. Any indirect and wicked motive inducing a defamation is malicious, (i ffigers on E. and S., pp. 266, 267.)
    13. Questions of fraud, and weight of testimony, are peculiarly within the province of the jury, and their verdict will not be disturbed unlebs manifestly en oneous. (21 An *5.82; 22 An. 31; 6 L. 492; Hennen’s Digest, p. 92, b. and authorities.) To determine the facts and the credibility of witnesses is for the jury. (Proffat on Jury Trials, pp. 359, 361.) Where evidence conflicts, the province of the jury is exclusive, (lb. 367, 473; 33 An. 1053.) Thejury is to judge of the weight and sufficiency of the evidence. (Hilliard on Hew Trials, 247, 281; Proffat on Jury Trials, p. 368; 33 An. 1054.)

      Cotton & Levy, for Defendant aud Appellant:
    Privileged communications defined 3 Howard U. S. It. 266; Odgers on Slander, 197 to 209.
    3?. 263: 'Clio more circumstances of the statement being false, will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false; the whole evidence shows that defendant acted with the most perfect bona fides and belief. Declarations of defendant concerning plaintiff appear to have been uttered without malice and under circumstances from which no malice is in law implied. Proof of express malice required by law where defendant did not originate report concerning plaintiff', nor repeat it other than in good faith, and onus of proving malice cast on plaintiff. 76 Eng. Com. L. It. Yol. 13, p. 3G0, Harris vs. Thompson ; 71 Eng. Com. L. R. Yol. 16, Taylor vs. Hawking ; Odgers on ¿Hander, p. 268.
   Tlie opinion of tlie Court was delivered by

Pociiá, J.

This is an action in damages for slander. Plaintiff complains that in consequence of a malicious and false statement, made by the defendant to the foreman of the Magazine Street Railroad Company, he was discharged from his employment as car driver for said Company, and avers that he has thereby suffered damages in the sum of five thousand dollars.

■ The answer ivas a general denial, and defendant appeals from a verdict and judgment of one thousand dollars against him.

Tlie charge made against plaintiff was, that he was in the habit of allowiug persons to ride on his car without paying fare, and on the strength of that charge, plaintiff was discharged as car driver.

But the evidence fails to prove that the statement was made by plaintiff with malicious intent, or with any desire to injure plaintiff, either in his reputation or in the matter of his employment.

Malice is the essence of slander, and it must he proved, either by direct testimony or by irresistible implication, from the nature of the language and conduct of the defendant. Boullemet vs. Phillips, 2 Robinson, 365; Gilbrot vs. Palmer, 8 An. 130.

The record shows that defendant, whose wife was a stockholder in the Railroad Company, heard persons boast that tlie car driven by plaintiff was “ a good deadhead car ” for them, and that he thereupon called on the foreman of the Company, and made the charge against the plaintiff, who was thenepliew of defendant’s first wife, and against whom he had no ill-feeling. Without warning or further investigation, the foreman at once discharged tlie driver, informing him of the reasons ■which led to his discharge. It may he that the foreman acted too hastily, and should have watched the driver, or given him some warning, hut defendant surely cannot be held responsible for such haste or apparent unfairness, and it nowhere appears that his purpose was to have plaintiff discharged from his employment.

His wife, being a stockholder in the Company, and directly interested in the proper administration of its affairs, it was defendant’s undoubted right to protect her interests by imparting the information of a damaging- practice entailing loss on the Company and its stockholders, with the manifest intention of bringing about a correction of the abuse. The fact that in making his statement to the foreman, he informed him of the connection of his wife with the Company, is a circumstance which unmistakably explains his conduct, and with other circumstances, satisfies our minds that the charge was made with good motives aud for justifiable ends.

We have searched the record in vain for any evidence tending directly or indirectly to show that in making the report to the Company, the defendant was actuated by malice or ill-will to plaintiff, in particular, or to his fellow-man in general, and hence, he cannot be held in damages for the language charged to him.

Although we should be, and are always, loth to disturb the verdict of a jury in such cases, yet we must do our duty when their finding would work glaring injustice, as would bo the case in the present instance.

Tlie views which we have expressed obviate the necessity of considering other defenses urged in the case.

It is, therefore, ordered, that the verdict of the jury be set aside, and the judgment of the lower court reversed; and that plaintiff’s demand be rejected and his action dismissed, at his costs in both Courts.


author: Eennee, J.

text:
    No. 8458.
    Succession of Drauzin Triche.
    Judgments homologating tutorship accounts and settling legal mortgages on the tutor’s property, have not the force of res adjudicada against third possessors or special mortgage creditors, but are, as to them, at most, prima facie evidence.
    When a direct conflict arises between such a judgment and the claims of such third persons, in a coneursus for the distribution of funds, involving the necessity of settling immediately the ranks of .opposing claims, they will not be remitted to an action of nullity, but may contest then and there the validity and rank of the claim allowed by the judgment.
    Debts from a tutor individually to himself in liis fiduciary capacity, when they become due and exigible during the term of the tutorship, are considered as collected by him and are secured by the legal mortgage on all his immovables, resulting from his tutorship and proper inscription.

      Where property, burdened with a general and with special mortgages, is called upon to satisfy the former to the prejudice of the latter, the special mortgage, junior in rank, must suffer contribution before a senior special mortgage can he affected.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Guión, Judge, ad hoc.

      Moore & JBacleaux, for Opponent and Appellant.

      1iewis Guión and J. 8. Goode, for Opponents and Appellees.

      Olay Knobloeh, for the Administrator.
   The opinion of the Court was delivered by

Eennee, J.


author: Bermudez, C. J. Pociiri, J.

text:
    No. 8599.
    The State of Louisiana ex rel. Morris Ranger vs. The City of New Orleans.
    A mandamus lies to compel the city authorities to levy a special tax to satisfy a judgment rendered on the City’s matured bonds and coupons, where a fi. fa. issued is returned nulla bona.

    Laws in force at the date of the contract, providing for themeans of executing the obligations of the same, forming part of the contract, cannot he repealed; neither can the remedy be suppressed, to the injury of the obligee, but they may be replaced by legal provisions for another adequate or equivalent mode of enforcement; otherwise they impair the obligation of a contract.
    The registry law of 1870, (Act 5) cannot affect a contract entered into in 1854, so as to retard or stay the execution of the obligations thereof. If enforced in this case, it would have that effect. Judgment affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissoij J.

      J). G. (& L. L. Ldbcitt, for the Relator and Appellee :
    1. Where a judgment creditor of the City has pursued and exhausted all legal remedy for the satisfaction of his judgments fruitlessly, he will be entitled to a mandamus to compel the corporation to levy a sufficient tax to pay the same, where the judgments are absolute and unaffected by any limitation whatever. See 8th Otto, p. 381, Hanger case.
    2. Tile obligation of contracts beiug impaired by any legislation which lessens the efficacy of the remedy in force at the time of the debt was created, it inevitably folLows that any construction of Act Ho. 5 of 1870, requiring registration of city judgments, undep facts shown by this record, must impede, obstruct or postpone indefinitely plaintiff's right to punctual satisfaction, would be obnoxious to State and Federal prohibition. See 12fch Otto, 203; Louisiana vs. H. 0. and Wolff, 13 Otto.
    3. In order to obtain the writ of mandamus, three things only are required to be shown by relator, which he has done in this case: first — that he has a clear right; second — that a corresponding duty rests on defendants; third — want of any other specific or adequate remedy. See Justice Strong, Commonwealth vs. Pittsburg, 35 Penn. Stat., 509 ; 8 "Wh. 1; 2 How. 605; 4 Wall. 553.
    4. It being satisfactorily shown that the contract between a bondholder and the corporation defendant antedated a subsequent constitutional provision limitiug taxation, so as to prevent or iudefinitoly postpone payment of matured municipal obligations, thelimitation should he declared unconstitutional, as impairingthe obligation of contracts.
    0. Jb\ JBuelc, City Attorney, for Defendant and Appellant:
    1. la a proceeding by mandamus to compel the levy of a special tax to pay a judgment, the latter will be accepted as evidence of a valid claim; hut to determine whether the relator is entitled to the tax prayed for, the court must look to the original contract between the bondholder and the City.
    2. If the law authorizing the issuance of the bonds not only provides no tax for the payment of the principal, but excludes the idea of payment by .special taxation by other provisions for their retirement, a special tax to pay judgmeut founded on such bonds, will not be awarded; the judgment creditor must bo left to Ms ordinary remedy under the terms of Act No. 5, Aots of 1870, and no tax can be ordered for Ms benefit beyond the limit now imposed by law.
    3. The provisions in the Act No. 109, Acts 1854, that the bonds therein authorized to he issued shall be redeemable by conversion into railroad stock, while it may leave the bonds not so redeemed as a valid debt of the corporation, is an exclusion of payment by special taxation.
    4. The city authorities will not be compelled by the writ of mandamus to the performance of a specific duty, unless it is alleged and proved that a formal and proper demand was made on them before the institution of the suit.
   The opinion of tlie Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the city authorities to levy a special tax to satisfy two final judgments obtained by the Relator against the City, and upon which fi. fa's issued, were returned nulla bona.

The defenses set up are numerous.. We deem it unnecessary to enumerate and to consider them expressly.

They wrere each and all presented, urged and decided in three cases, 'which received tlie entire attention of the highest Court in tlie country, in two of which tlie Relators were parties complainant. See 3 Otto, 381 ; 12 Otto, 203; 13 Otto, 358.

The record shows that the registry of tlie judgment, which was not freely made, but under judicial compulsion, will have tlie undoubted effect of retarding, if not altogether staying the execution of the obligations of the contract between the Relators and the City of New Orleans, evidenced by the bonds and coupons held by the Relators, and upon which they recovered.

The amount of other judgments registered approaches a million of dollars. The provision made by tlie municipal authorities to satisfy them is practically insignificant, as it proves insufficient to discharge even one-half of the interest generally due on the same.

When the bonds were issued in 1854, the contract was entered into, and the laws in force at that time, for the enforcement of the obligations of the contract, formed part of it. ■

■ The writ oí fieri facias was then the practical means for the execution of the contract.

The suppression of that proceeding, as against the City, by the subsequent legislation of 1870, (Act 5) and the failure to replace it by an equivalent and adequate remedy, cannot affect the right of the bondholders in this case, without impairing the obligation of their contract.

Under the authority of the cases cited, decided by the Supreme Court of the United States, which is obligatory upon- this Court, and under the facts disclosed in this controversy, the Relators are entitled to the relief sought.

Judgment affirmed.

Rochó, J., concurs, for reasons in his separate opinion.

Concurring Opinion.

Pociiri, J.

I rest my concurrence in the decree rendered in this case exclusively on the ground that all the defenses set up by the Respondent have already been passed upon by the Supreme Court of the United States, and that Relator’s position had thus become unassailable, so that the relief obtained by him has been forced through this Court, by the adjudications of the Supreme Court of the United States.


author: Poems, J.

text:
    No. 8621.
    The State of Louisiana ex rel. N. V. Vinet et al. vs. Wm. Voorhies, Judge of the Second City Court of New Orleans.
    An allegation by a party in an injunction suit, touching the value of movable effects seized as the property of another party, will not estop the same plaintiff from alleging and proving a different value of the same property in another and distinct suit.
    The determination of the value of such property is within the judicial discretion of the lower court, and the judge thereof will not be guilty of contempt, for entertaining jurisdiction of the second suit, because be had been prohibited from entertaining jurisdiction of the first suit, iu which it appeared that the value of the property involved in the first suit exceeded his jurisdiction.
    Rule for contempt discharged. Prohibition refused.
    Application for a Certiorari.

      Merrick, Foster & Merrick, for the Relators.
    The Respondent in propria persona.

   The opinion of the Court was delivered by

Poems, J.

Eelators apply for a certiorari and urge a rule for contempt against the defendant Judge, on the following grounds :

That in disregard of a writ of prohibition issued by this Court, directed to the defendant, inhibiting him from-entertaining jurisdiction of an injunction suit, filed for the purpose of arresting the seizure of certain movable effects of the alleged value of $288, the said Judge has since proceeded to issue another injunction restraining the sale of the identical property in a suit between the same parties.

The Judge answers, and the record bears him out, that after service on him of our writ of prohibition, he at once dismissed the suit for injunction then ponding in his court, and that the execution therein sought to be enjoined proceeded in its legal course. Whereupon the original plaintiff in the suit thus disposed of, entered another distinct and separate suit, for the purpose of arresting the execution, by levy on the identical property which had been the subject matter of the. previous litigation, alleging in her last petition, and showing by an official appraisement, made under the supervision of the constable, one of the Eelators, that said property was worth only ninety-eight dollars and ninety-five cents.

The legal purport of the prohibition issued by this Court, (0. B. No. 56, p. 1145,) was to restrain the Judge of the City Court from entertaining jurisdiction of an injunction suit, in which the value of the property seized prima facie appeared to exceed one hundred dollars; the nature or identity of the personal effects seized is not sacramental, as a test of the jurisdiction of the court, which must be determined according to the value of the property, as shown by the papers on the trial of the exception.

The allegation in pleadings of the value of a specific piece or item of property is, after all, an allegation or opinion which, if erroneous, can be corrected at any stage by the party making it, and will not conclude the Judge, if shown to be erroneous by evidence.

The plaintiff in the second injunction suit could not, therefore, be estopped from alleging a different value of the identical property from the valuation made by her in her previous suit.

The determination of the value of the property seized, under the evidence and the pleadings in the suit now pending, was'a matter within the legal province and judicial discretion of the Judge, who has, therefore, violated no order or decree of this tribunal in the premises.

The rule for contempt is, therefore, discharged, and the writ of certiorari is refused, at Eelators’ costs.


author: Manning, J.

text:
    No. 8673.
    The State of Louisiana vs. Marcel Wolff.
    Embezzlement is not an ofíense at common law, but was created by Statute. Embezzle includes iu its meaning, appropriation to one’s own use, and therefore the use of the single word embezzle, in the indictment or information, contains within itself the charge that the defendant appropriated the money or property to his own use.
    The simplification of criminal pleadings was commanded by this State in her first criminal Statute directing the common law forms to he divested of unnecessary prolixity.
    APPEAL from the Criminal District Court for the Parish of Orleans. 1loman, J.

      J. G. Egan-, Attorney General, for the State, Appellee.

      E. E. Moise, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was tried on a charge of embezzling ' twenty-two dollars of his employer’s money, and upon conviction was sentenced to one year’s confinement in the penitentiary.

A bill of exceptions was taken to the admission in evidence of the prisoner’s confession, and states two grounds of objection:

1. 11 That nothing in the confession showed the embezzlement or offense charged in the information, or at the date in said information alleged, and the fact alleged had not yet been shown.”

We take this to mean that the embezzlement confessed does not by the terms and date of the confession appear to be the embezzlement charged, and the fact or act of embezzlement had not been proved when the confession was offered. '

The confession was proof of itself of an embezzlement, and it was for the State to establish afterwards that it was the embezzlement charged, which appears to have been done to the satisfaction of the jury.

2. “ That there being no allegation in the information of the said Marcel Wolff having appropriated any money to his own use, so much of said confession as went to show that fact should not be allowed to go to the jury.”

There is no need under our Statute of using in the information the . words appropriated to his own use.” The objection, carried to its logical conclusion, would be that unless a prisoner’s confession is in the identical words of the Statute, it is inadmissible.

There was also a motion for a new trial embracing these two grounds just disposed of.

The motion in arrest of judgment is based upon the alleged insufficiency iu law of the charge in the information, in not setting forth that the money therein alleged to have been wrongfully used had been appropriated to the prisoner’s own use and benefit by him the said Marcel Wolff, etc.

Our Statute punishing embezzlement.is in these words:

“Any servant, clerk, * * who shall wrongfully use, dispose of, conceal or otherwise embezzle any money * * . which lie shall have received for another, or for his employer, * * or by virtue of his office, trust or employment, * * shall suffer, etc.” Rev. Stats. Sec. 905.

The information follows the Statute, employing its identical words, except that “ and ” is used instead of or,” thus reading “ conceal and otherwise embezzle,” but this substitution of the copulative to the disjunctive conjunction does not, as the defendant’s counsel insists, make an important difference in the law. The charge would have be.en sufficient if it had used only the word embezzle, and omitted the others, “ use, dispose of, conceal.”

Embezzle means to appropriate to one’s own use property or money entrusted to him by his employer. The use of that word supplies the place of the sentence, which the counsel earnestly contends is sacramental. The single word embezzle means all that the sentence does, and something more.

Embezzlement is not a common law offense. It' had its origin in the efforts to amend the law of larceny. The first Statute was tempo Henry 8, in which the descriptive words were, “ did embezzle or otherwise convert the money to his own use.” The Statute of George 4 (1827) improved and superseded the earlier one, and there the words are “ shall fraudulently embezzle.” Our Statute has, “ shall wrongfully use * * or otherwise embezzle.” The aim of succeeding Statutes is to simplify criminal practice by avoiding verbosity and repetitions and circumlocutions in pleadings, and this Court, in encouraging and giving aid to such simplification, only hearkens to the voice of the State when in her first criminal Statute she commanded that the forms of indictment should be divested of unnecessary prolixity.

Judgment affirmed.


text:
    No. 7966.
    Jean Marie Saux vs. I. W. Patton, Mayor, et al.
    "When the prayer of the petition contains no moneyed demand whatever, and the plaintiff asks that bis right to sue for damages hereafter he reserved, the Supremo Court ia vrithout jurisdiction of the suit.
    APPEAL from the Sixth District Court for the Parish of Orleans. Rightor, J.

      Sambola & JDucros, for Plaintiff and Appellee.

      O. F. Bucle, City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff alleges that in 1854 he bought a piece of ground fronting the centre gate of the lower city park, and1 built a residence and a house for business upon it, believing that the park was to become a place of public resort and of amusement as it had been thus dedicated by the City Government. He represents that it has been divested from this object, and instead is used as a pasture wherein horses, cows, and other animals are kept to his great detriment as well as that of the public, which animals injure the trees and pathways and deter visitors, and prevent families from enjoying the park through fear of them, whereby he is deprived of the profit he would otherwise realize from selling refreshments, and is further endamaged in his property which has become of small value because of this misuse of the park.

He obtained an injunction to prevent the further use of the park for pasturage, and the prayer of his petition is that this injunction he perpetuated, and his right to sue for damages in a separate action he reserved. There was judgment perpetuating the injunction, from which the mayor and administrator defendants appealed, hut seem to have taken no further notice of the matter. No appearance by brief or otherwise is made for the fit here.

Thpre is no moneyed demand of any kind or amount made by the plaintiff, and we are therefore without jurisdiction. There is in the body of the petition an allegation that the damage he will suffer will he at least five hundred dollars per annum if the defendants are permitted to continue their misuse of the park. The suit was filed March 3, 1880, and was tried two months after. The plaintiff notices the want of jurisdiction hut makes no motion based thereon.

There is no allegation that brings the case within our jurisdiction, and the appeal is therefore dimissed.


text:
    No. 7957.
    Mrs. Mary Jane Ackerly vs. Patrick Sullivan and Thomas O’Neil.
    A suit for damages resulting from falling over a pleooof soantling which stretched across the banquette of a street, with one end resting on the door sill of a house iu charge of the defendant, cannot be sustained, in absence of proof that defendant or his employees placed the soantling there or knew of its being so placed,

      Singleton <& Brovme, for Plaintiff and Appellee:
    The defendant, in occupying or encumbering, or permitting tbeeneumbranceof the banquette with materials, .when they were not necessary to be used in the construction or repair of a house, did so in violation of the city ordinance, and is responsible for all damages resulting from such violation. City Ordinance, No. 127, (1). Thompson on Negligenoe, Vol. I, 340, 343.; Vol. II, 1232.
    It was negligence on the part of tho defendant to put, or leave, or permit a piece of soantling to lie on the banquette, when he had no need therefor.
    The defendant was not lawfully in possession of one-half, or any portion of the banquette, unless it Avns necessary for him to use it. ♦
    The plaintiff had a right to expect the banquette to be free and unencumbered, and she was not obliged to be looking at the banquette in front of her, and it was not contributory negligence in her if she failed to watch the banquette and see tho soantling. Hill vs. Soekonk, 119Mass. 85; Hawks vs. Northampton, 121 Mass. 10; Koch vs. Edgewater, 14 Hun. 504; Clark vs. Dookport, 49 Barbour, 580; Wbitely vs, Pepper, 20 Moak’s Notes, 341; Thompson vs. Bridgewater, 7 Pickering, 187; Woods vs. City of Boston, 121 Mass, 337; 46 Penn. Pep. 316,
    The damages are not unreasonable; on the contrary, they are too small, as her suffering was groat, and the injury permanent; and wo have asked that tho judgment be amended so as to give her $2,500. The law regards rich and poor alike, and whether plaintiff was required to work for her living or dependentupon her son, is notamatter of consideration, Sedgwick on Measure of Damages, (5 Ed.) p. 787. Ibid, p. 648, note 2.

      J. O. Nixon, Jr., for Defendant and Appellant:
    To recover in an action cx delicto, plaintiff must show some negligence on the part of defendant, or those for whom he is responsible. 15 An 105; 16 An. 121,'151; 15 An. 448.
    Under the city ordinance the defendant was lawfully in possession of the inside half of tho banquette; if plaintiff went thereou, it was at her own risk. 12 Indiana, 515; li An.712. The plaintiff' was guilty of contributory negligenoe. The damages recovered are excessive.
   The opinion of the Court ivas delivered by

Fenner, J.

The defendant appeals from a judgment rendered against him, upon tlie verdict of a jury, for damages occasioned plaintiff by her tripping and falling over a piece of soantling which rested upon the door-sill of a building and ran across the banquette of the street, unlawfully obstructing the same. The fall broke her wrist, occasioning suffering and other injury. The suit was brought against Sullivan, as owner of the building, and O’Neil, as contractor for.its construction; but, it appearing that O’Neil wa.s in full possession and control of the building and workmen employed therein, the verdict was in favor of Sullivan and against O’Neil only.

Plaintiff alleged that said piece of lumber had been run out of said building bj^ defendants or those in their employ,” and that “ the placing of the same across a frequented thoroughfare by said defendants or their employees, was gross and wilful negligence, and contrary to law,” and rendered defendants responsible for the damages.

There is a complete failure of proof that defendant or any of his employees placed the scantling there or even knew of its being there. On the contrary, the evidence is positive that they did not so place it or know of its being there; that it was not needed in such position for any possible purpose of the work which was being done; that O’Neil left the building at about 12 o’clock in the day, when the men struck off work for dinner; that, at that time, the banquette was clear; and that very shortly after and while the men were at dinner, the accident occurred. How, or by whom, or for what purpose the scantling was placed, is totally unaccounted for.

Certainly, it was an essential element of plaintiff’s cause of action to establish some fault or negligence on the part of defendant or his employees as a condition precedent to his liability for damages.

In this she has completely failed, unless we should hold that the bare fact, that the scantling was there with one end resting upon the door-sill of a house of which defendant was in charge, was sufficient to make him liable, whether or not he or his employees placed it, or knew of its being there. Such a proposition is certainly repugnant to common sense, and we know of, and are referred to, no law or authority sustaining it. It would extend the responsibility of owners or persons in charge of buildings beyond all reason, and would require them to mount guard in front of their houses lest the act of any street gamin might subject them to heavy damages.

The argument that defendant’s employees must or should have known of this obstruction because they were at dinner in the house, twenty feet off and in range of view, at the time when it was placed, comes with little grace from plaintiff, who, being a person of sound sight and unimpaired faculties, ran over the same obstruction, in broad daylight, without seeing it. '

There is no foundation for the verdict or judgment.

It is, therefore, ordered and decreed, that the judgment appealed from against the defendant, Thomas O’Neil, be annulled, avoided and reversed, and that there be judgment in his favor and rejecting plaintiff’s demand, with costs in both Courts.