text:
    No. 6834.
    John A. Godfrey vs. Theodore and Lucien Soniat.
    A juror cannot be beard disclosing bis own improper conduct and impeaching bis own verdict.
    Tbe mere fact tbat tbe accused, under a criminal prosecutipn, bas been acquitted, does not entitle bim to damages against tbe prosecutor; and be should recover none, when tbe evidence shows tbat there was a probable cause for tbe prosecution, and no malice on tbe part of tbe prosecutor.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      JS. K. Washington for Plaintiff and Appellant:
    First — The proof of malice need not be direct; it may be inferred. 15 An. 605.
    Second — Where, in legal intendment a prosecutor acted maliciously, there is a right to tbe action for damages. 15 An. 337.
    Third — In an action for damages for a malicious prosecution, it is shown tbe defendant acted from motives of private interest, and bis prosecution of tbe plaintiff was dismissed, tbe advice of counsel will not exempt bim from liability. 15 An. 672.
    Fourth — Where a party was arrested and on examination discharged, malice will be presumed and damages may be recovered for a malicious prosecution. 20 An. 336.
    Fifth — Tbe use of such phrases as " Godfrey, tbe thief and trespasser.” “ This case must be pushed.” ” I have sent my son down to put bim through;” followed by an arrest by the son, which on examination was found without cause, are evidence of malice conceived by tbe one and carried out by tbe other, ^Record, page 51. A charge of theft tending to injure plaintiff renders defendant liable. 6 An. 779.
    Sixth — Where there is a total overthrow of a prosperous business, in consequence of an arrest of its principal, and as the direct and immediate result of the arrest, reparation should he in proportion to the damage sustained.
    Seventh — The verdict of a jury should contain some sense,, and that in this case “ verdict of, ' for defendants,” contains no sense whatever.
    Eighth — Defendant, if he wish a special finding on his reconventional demand must ask for it before the verdict is recorded. 4th La. 40; 17 La. 92; 6 An; 222.

      Hintli — 'Where all tlie facts are not submitted to counsel, legal advice is no protection. Green-leaf, 2d vol., 459.
    Tenth — Exact proof of actual pecuniary damage can rarely be given in actions for a malicious arrest, and gross carelessness and indifference to the legal rights of others are constituent ingredients of malice.

      J. J. Boman and Chs. F. Claiborne for Defendants and Appellees:
    First — On the trial of a rule for a new trial on the ground of new evidence, or misconduct of the jury, the plaintiff in rule is confined to his own affidavits. C. P. 561; 7 L. 84 • 2 An. 796, 1021; 16 L. 80.

      Second — Ex parte affidavits cannot be offered in evidence. Greenl. Ev., Sec. 124,125; 9 P. 387.
    Third — A juror cannot be heard to explain, alter or impeach his verdict. 1 H. S. 514; 2 L. 216 ; 11 L. 141; 14 L.66 ; 8 L. 433; 9 P, 387 ; 3 An. 435 ; 6 An. 657 ; 12 An. 3 ; 15 An. 558 ; 28 An. 360, 658; 30 An. 1266; 32 An. 847, § 3 ; 1 Greenl. Ev. § 252, A.; Sharswood Starkie Ev. § 805; Graham, New Trials, p. 61; Hilliard, New Trials, p. 196.
    Fourth — Even if the jurors behaved improperly, a new trial will not he granted, unless it is shown clearly-that impartial justice has not been done. O. P. 560, § 3; 20 An. 658; Townsend Slander, § 295; 14 L. 66; 7 H. S. 149.
    Fifth — In order to succeed in an action for malicious prosecution the plaintiff must prove:

      (a) The prosecution and its termination in his favor; (b) That defendant was the prosecutor or the cause of the prosecution; (e) That there was no probable cause for the prosecution ; (d) That it was actuated by malice; and (e) That he has sustained damage thereby.
    All these elements must exist, and the burden of proof is upon the plaintiff. 3 P. 17; 12 An. 333 ; 15 An. 422; 16 An. 3; Townsend Slander and Libel, § 421; Folkard’s Starkie Slander and Libel; Marg. p. 365, Sec. 460; Marg. p. 466, Sec. 598; 2 Greenl. Ev, § 449.
    (&) Townsend, § 432; Starkie Marg. p. 467, Sec. 600; 27 An. 339; 8 P. 150.
    (c) Townsend, Sec. 426; Starkie Marg. p. 471, Sec. 605; Marg. p. 473, Sec. 609 ; 2 Greenl. Ev. § 454; 2 Starkie Ev. Marg- p. 9X3; 15 L. 278; 3 P. 17; 9 P. 389; 10 An. 537; 11 An. 289, 419; 12 An. 53; 13 An. 214 ; 15 An. 605; 16 An. 3 ; 28 An. 687.
    (tí) 5 L. 319 ; 13 L. 90; 15 L. 278; 9 P. 387; 11 An. 289, 419 ; 12 An.' 333; 13 An. 214; 15 An. 422, 605; 16 An. 3; 27 An. 340 ; 8 Otto, 187; Townsend § 431; Starkie Marg. p. 368, Sec. 462; Marg. p. 466, See. 598.

      (e) O. C. 1934, § 1, 2, 3; 4 Ait. 80; 11 An. 300; 13 An. 564; 17 An. 239; 25 An. 420 ; 29 An. 287 ; 2 Greenl. Ev. § 256; Sedgwick Meas. Dam. Oh. 3, pp. 63, 111, 112.
    Sixth — Probable cause is such a state of facts or circumstances as would create in the mind of a man of ordinary caution and prudence, an honest and reasonable belief of the guilt of the party charged. Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the prosecutor. However innocent the plaintiff may have been of the crime charged, it is enough for this defendant to show that he had reasonable grounds of believing him guilty at the time tbe charge was made. 8 An, 12; 10 An. 537; 12 An. 333; 16 An. 3; 13 An. 2.74; 2 Greenl. Ev. § 454 and notes; Townsend, § 425; Starkie, Marg. p. 303, Sec. 357.
    Seventh — A judgment of acquittal is not proof of want of probable cause. Peason of the rule. 3 P. 17; 5 P. 150; 8 P. 150; 10 An. 538; 8 Otto, 187; Greenl. Ev. § 455 ; Townsend, § 426, 431; Starkie Marg. p. 473, Sec. 609.
    Eighth — Advice of counsel sought and followed in good faith is proof of probable cause. 9 P. 421; 8 An. 12; 11 An. 290; 15 An. 422 ; 8 Otto, 187; 2 Greenl. Ev. § 459 j 3 Starkie Ev. Marg. p. 922; Starkie Slander, pp. 632, 637; Townsend, § 427.
    Hinth — If defendant shows probable cause, there must be judgment in his favor. 5 P. 151; 8 An. 12; 12 An. 714; 11 An. 418; 13 An. 274; 15 An. 605; 16 An. 3, 252; 28 An. 325; 29 An. 68; Starkie Slander, Marg. p. 480, Sec. 619.
    Tenth — Total want of probable cause is only a presumption of malice which may he rebutted. 5 L. 319 ; 9 P. 387 ; 8 An. 12; 12 An. 333; 15 An. 422; 2 Greenl. Ev., § 454; Townsend, § 88, 431; Starkie Marg. p. 299, Sec. 350; Marg. p. 451, Sec. 574.

      Eleventh — This presumption may be rebutted by evidence of good faith or of probable cause; for, no amount of malice -will render defendant liable if he had probable cause. Want of probable cause and malice must essentially concur. 3 R. 17; 9 R. 421; 8 An. 12; 8 Otto, 187; 2 Greenl. Ev. § 453; Townsend, § § 418, 426, 431; StarMe Marg. p. 301, Sec. 352; Marg. p. 469, Sec. 602; Marg. p. 34.
    Twelfth — Actions in damages for malicious prosecution are not favored by the law, and must be cautiously entertained. -From motives of public policy, the prosecutor must be protected. Reason of the rule. 3 R. 20; 6 An. 375; 15 An. 605; 5 L. 319; 6 L. 271; 15 L. 278; Townsend, § 418; Eolkard’s StarMe on Slander, Marg. p. 469, Sec. 602.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff brings this suit for damages in the sum of $18,500, alleged to have been caused him by a malicious criminal prosecution brought against him'by defendants; and he has appealed from an adverse verdict and judgment.

Our attention is called to the refusal of a new trial by the district judge as prayed for, on the following alleged irregularities:

1st. That the verdict was contrary to the law and the evidence.

2d. Alleged improper conduct of the jury.

First — As to the first ground, we think that the judge in the exercise of his sound discretion, properly overruled it.

Second — The second ground contains two separate charges; first, that one of defendant’s attorneys, Mr. Claiborne, improperly communicated with one of the jurors, during the trial, by handing him a slip of paper.

The district judge, after hearing the testimony of the isolated witness who made the charge, and the denial of the same by several other witnesses, refused to believe the slander, and we are happy to note that in his oral argument before this Court, counsel for plaintiff disclaimed any belief in the truth of this malicious and silly charge against an honorable and honored member of this Bar; second, it is next urged that, after the submission of the case to the jury, several members of that body were tampered with, and held conversation with an outside party. The district judge properly rejected the affidavit of one of the jurors in support of this charge, and correctly held that a juror cannot be heard as a witness of his own alleged turpitude. State vs. Beatty, 30 An. 1266; State vs. Nelson, 32 An. 847.

The testimony on this point showed that, with the permission of the presiding judge, the jury, in its deliberation, occupied the court room, to which the recorder of the parish had access by means of a key of his, which unlocked the entrance door of the room occupied by the jury; that, in search of some of his books, which he had left in the court room, that officer, in ignorance of the presence therein of the jury, had opened the door, which he immediately closed, on discovering the presence of the jury, and that he had spoken to, or communicated with, none of the jurors.

We fully concur with the judge a quo in refusing a new trial on such flimsy grounds.

On the Merits.

Plaintiff charges that he has suffered the damages which he claims, in consequence of a malicious affidavit, made against him by Lucien Soniat, at the instigation of his father, Theodore Soniat, charging him with trespass on the latter’s lands,-by cutting down or causing to be cut down, and taking away several trees on the lands of said T. Soniat, without his consent or permission, under which charge he was arrested, put under bond, tried and acquitted.

The defendants filed separate answers. Lucien Soniat admitted to have made the affidavit, while Theodore Soniat denied any participation therein, and claimed in reconvention fifteen hundred dollars as value of the trees illegally cut down on his land, and appropriated to his use, by plaintiff.

Both defendants denied that the affidavit had been made with malice or without probable cause, and both alleged grounds to justify the charge made in the protection of private property.

Counsel of both parties are in perfect accord as to the law governing the case, and both agree that the right of plaintiff’s recovery depends upon the concurrence of the following elements of proof:

1st. The prosecution and its termination in favor of plaintiff.

2d. That the defendants were the prosecutors, directly or by authorizing the same.

3d. That there was no probable cause for the prosecution.

4th. That it was actuated by malice.

5th. That plaintiff has suffered damage in consequence of the malicious and unfounded prosecution.

A careful examination of the testimony has disclosed to our minds the following as the salient facts in the case:

In June, 1877, Lucien Soniat, the manager of his father, Theodore Soniat’s plantation, was informed by several persons that plaintiff, the lessee of the “ Trudeau place,” an adjoining plantation, and on which he-was engaged in cutting timber, to be converted into fuel and into railroad cross-ties, was cutting down and using trees on the Soniat lands. Accompanied by two of his informants, who had themselves, as employees of plaintiff, cut down trees on the Soniat lands, Lucien Soniat, who was familiar with the location and with the boundary lines between the two plantations, proceeded to investigate the matter. Having ascertained, by following the lines from the front to the rear or swamp, that the information was correct, he then called on plaintiff, in an amicable manner, in company with a neighbor, notified him of the fact, and requested him to desist from further trespassing on his father’s lands, concluding by demanding compensation for the timber which had been cut down and used by Godfrey.

At his request, an investigation was subsequently made by him and Godfrey, accompanied by several laborers and two of their neighbors. This investigation having resulted,' in Soniat’s opinion, in fully proving that plaintiff had cut and used a great many trees on his father’s lands, he reiterated his previous request for a cessation of the trespass and fór compensation for the timber taken from his father. After mutually considering several propositions and counter-propositions for a settlement of the difficulty, and all plans to that end having failed, and Lucien Soniat seeing that plaintiff, heedless of his amicable request, was persisting in chopping on his father’s swamps, then sought legal advice from two respectable counsel, to whom he máde a faithful and correct statement of the facts above recited. Following their advice and that of the parish judge, himself an attorney of vast experience, Soniat then made the affidavit which gave rise to this litigation. The trial resulted in the acquittal of the accused. The mere statement of the foregoing facts is in our opinion a solution of the case in favor of defendants, and shows that, far from being actuated by malice or ill-feeling towards the plaintiff, they acted throughout with a spirit of high-minded fairness and with marked moderation, seldom met in persons whose property is being devastated.

The acquittal of the accused, whose conviction must rest upon evidence proving his guilt beyond a reasonable doubt, does not prove malice or want of probable cause in the prosecutor. If the acquittal of all persons accused of crimes or misdemeanors, should subject the complainants to actions in damages for malicious prosecution, it is easy to perceive that litigation of that character would absorb and monopolize the attention of courts of justice to the exclusion of all other business.

We are more than satisfied from the evidence, that defendants had ample probable cause for the resort to the criminal prosecution which they instituted against plaintiff; and courts will not mulct them in damages for pursuing such a course.

On the plea in • reconvention, which was not directly passed upon by the jury, we find that the evidence is not sufficiently clear in details as to the number and value of defendant’s trees, which were actually cut down and used by plaintiff, to enable us to give judgment in a definite amount in favor of plaintiff in reconvention.

. It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be affirmed at appellant’s costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8148.
    Widow and Heirs of James Benton Baird v. Sempronius Russ.
    On Motion to Dismiss.
    Appellant not having asked, that all the Defendants and. Warrantors he cited as Appellees, the Appeal must he dismissed.
    The want oí proper parties in this Court will he noticed at any time, in any form of suggestion and, even, ex mero motu,

    APPEAL from the Tenth Judicial District Court, parish of Red River. Pierson, J.

      Jas. H. Pierson for Defendant and Appellee.

      L. B. Watkins for Plaintiffs and Appellants.

      B. B. Forman on same side, on application for rehearing.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The ground of want of proper parties, assigned in the motion to dismiss, is fatal to this appeal. The suit is brought to recover immovable property now held by defendant, Russ, under a title running back through several successive conveyances recited in the petition. Not only Russ, but his several successive authors, were made parties defendant, and were cited; and judgment was prayed for " against all of said defendants, each and severally, annulling and setting aside each and every of said sales, and * * * condemning Russ to deliver said property, etc.”

Answers were filed by said several defendants, and after trial, judgment was rendered as follows : “ In this case, by reason of the law and evidence being in favor of defendants, it is ordered, adjudged and decreed, that plaintiffs’ demand be rejected and their suit be dismissed, etc.”

The present appeal was taken by petition, which prayed for the citation of Russ alone and his co-defendants were neither cited nor asked to be cited.

The several deeds of sale, in evidence, show that the authors of Russ’ title assumed all the obligations of warrantors. They are, therefore, directly interested in the maintenance of the judgment appealed from, in all its parts; and, in fact, .the judgment in favor of Russ could not be disturbed without practically annulling the judgment in favor of his co-defendants.

It has passed into an axiom of our jurisprudence, too trite to justify even the citation of authorities in its support, that all parties to the record, interested in maintaining the judgment appealed from, must be made parties to the appeal, or, otherwise, it will be dismissed.

_ It seems hardly necessary to say that the point made by appellant’s counsel, to the effect that the want of citation is waived where the appellee moves to dismiss on other grounds, applies only to the citation of the objecting appellee himself. It has no application to the objection of want of proper parties, which will be noticed by the court, at any time, and in any form of suggestion, and even ex mero motu. Anxious as we are to favor the right of appeal, we can discover no possible ground on which the present appeal can be sustained.

The appeal is dismissed at appellant’s costs.

Rehearing refused.


author: Poché, J.

text:
    „No. 8255.
    The State of Louisiana vs. Thomas Bradford.
    The offence charged is sufficiently described in the indictment, when it is averred that the accused did wilfully and feloniously shoot and wound * * * with the intent * * * wilfully, feloniously and of his malice aforethought to kill, etc. The charge of malice in the shooting as well as in the intent to kill, is not indispensable,
    APPEAL from the Twentieth Judicial District Court, parish of Assumption. Knoblock, J.

      E. M. McCulloh and Jno. H. Ilsley, Jr., for Defendant and Appellant:
    An information under Sec. 791, Revised Statutes, charging the defendant with “ wilfully and feloniously” shooting, is deficient, and should have charged the shooting to have been done wilfully, feloniously and maliciously, or with malice aforethought, with the intent laid.

      J. C. Egan, Attorney General, for the State, Appellee.
   The opinion of ’the Court was delivered by

Poché, J.

Appellant complains that the information under which he was tried and convicted of shooting with intent to commit murder, is defective, in not containing the words “ with malice aforethought ” or “ maliciously,” in the description of the manner of shooting.

The information charges that appellant and two others “ did wilfully and feloniously shoot and wound with a dangerous weapon, to wit, a pistol, with the intent then and there the said Alomo Lacroix feloniously, wilfully and of their malice aforethought to kill and murder,” etc.

The question is whether the crime charged is sufficiently described to justify the conviction and sentence.

Under the statute, the offence charged is composed of two ingredients ; one, the shooting, and'the other, the intent to commit murder; and the gist or gravamen of the crime lies in the intention with which the act. of shooting is done.

The intention to commit murder, does not follow or qualify every shooting, just as every homicide does not contain the element of murder. It is the animus or intention with which the blow inflicting death is-dealt, which presents the test under which the homicide is to be qualified- or punished.

It, therefore, follows that, if the intent with which the fatal blow is-inflicted, is properly and sufficiently described in the indictment or information, the end of the law is satisfied.

As suggested by appellant’s counsel, the crucial test of the sufficiency of such an indictment, is whether, in case of death of the party shot and wounded, the description of the crime, as contained in this instrument, would be sufficient to warrant or justify a verdict for murder. We have-no hesitation to assert that the description complained of would be sufficient. And in this opinion we are amply borne out both by reason and by authority.

Under this test, the indictment would read in substance, as follows:: “ did wilfully and feloniously shoot ' * * * with a dangerous-weapon, to wit, a pistol, * * and did then and there the said A. L. feloniously, wilfully and of their malice aforethought kill and murder.”'

The crime of murder is, beyond a doubt, sufficiently described in such language, and the indictment would be sufficient even if the words “ wilfully ” and “ feloniously ” had been omitted before the word “ shoot.”'

An indictment strikingly similar to this information, in which the-assault was not described by the words wilfully or with “ malice aforethought,” was held sufficient by the Supreme Court of Massachusetts in the case of Commonwealth vs. Chapman, 11 Cushing, 422; Bishop on Statutory Crimes, § 506; same on Criminal Procedure, § 547.

Our own Supreme Court, in the case of State vs. Robertson,‘30 An, 342, held that “ it shall be sufficient in any indictment for murder to-charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased,” quoting the very language of the statute, R. S. Sec. 1048, prescribing the requisites of an indictment for murder.

In the case quoted, the averment was that “ A. R. did cut, st'ab and wound the said O. R.,” and the indictment further charges that the said A. R. did the said O. R. then and there wilfully, feloniously and of his malice aforethought kill and murder.”

In the case of State vs. Thomas, 29 An. 601, mainly relied upon as authority by appellant’s counsel, which was on an identical charge with the case at bar, neither the shooting nor the intent to commit murder, were described as malicious,” and hence, the decision quashing the indictment in that case is no authority in this.

There is no error in the judgment appealed from, and it is, therefore, affirmed.


author: Todd, J.

text:
    No. 8318.
    The State of Louisiana, ex rel. Joseph Hernandez, vs. F. A. Monroe, Judge of the Civil District Court for the Parish of Orleans.
    This Court will not issue the writ of Prohibition where the evil complained of, may be remedied by Appeal.
    The mere apprehension that two courts, trying cases between the same parties, may issue conflicting orders to the injury of the Relator, is not a sufficient cause for this Court to-interfere, by anticipation of the conflict, in the proceedings of one of the two courts, and issue the writ of Prohibition against the judge thereof.
    The writ of Prohibition is not one of right, and should only issue in cases of usurpation of power or jurisdiction by the lower court. 32 An. 1186.
    ApPLICATION for writs of Prohibition and Certiorari.

      F. A. Monroe, Judge, Respondent.

      Thos. J. Semmes and A. G-. Brice for th’e Relator.

      W. 8. Benedict and F. North Cullom for the Respondent.
   The opinion of the Court was delivered by

Todd, J.

The relator applies for a writ of prohibition, the object of which is to restrain E. A. Monroe, judge, from proceeding further in the trial and determination of the case of Rosema D’Aunoy, wife, vs. Joseph Hernandez, husband, now pending before him, and of all motions and exceptions relating to said case.

The facts connected with this application are briefly as follows:

On the 23d of May, 1881, Rosema D’Aunoy, wife of Joseph Hernandez, instituted suit against her husband for separation from bed and board, on the grounds of cruel treatment and defamation of character, in the Civil District Court of the parish of Orleans, which suit was assigned to the Hon. E. A. Monroe, presiding in Division “C” of said Court.

. The defendant, Hernandez, filed an exception to the. jurisdiction of the Court, on the ground that the domicil of the plaintiff and himself was in the parish of St. Bernard. The exception was tried, evidence was heard on the issue raised by it; and on the 24th of June, 1881, the exception was overruled. Thereupon, the plaintiff in the suit took a rule on the defendant for an allowance of alimony, which rule was excepted to on the ground that; on the 16th of May, 1881, the defendant in the rule, Hernandez, had brought a suit against his wife, plaintiff in the rule, for divorce, in the parish of St. Bernard; that the wife in that suit had filed a plea to the jurisdiction of the court, alleging that she- and her husband resided in the parish of Orleans, which plea was overruled. That by virtue of the decision thus rendered by the court in St. Bernard on the question of domicil, the judge of the Civil District Court of the parish of Orleans (Hon. E. A. Monroe) was precluded from entertaining the rule for alimony, and from proceeding any further in the case. The rule and exception thereto were fixed for trial on the 28th of June, and the relator, alleging that, notwithstanding the proceeding in the District Court of the parish of St. Bernard, and the decision of that Court on the question of domicil, the Hon. F. A. Monroe persists in trying the rule for alimony, and in entertaining j urisdiction of the case, asks that he be prohibited from doing so by the writ applied for.

The judge against whom the writ is sought, in his answer, sets up substantially the following grounds of opposition to the same:

1st. That the causes of action in the two suits were different; that the suit by the husband could not estop the wife from bringing her suit, nor in selecting the tribunal in which to bring the suit, subject to the judgment of such tribunal whether the suit was properly brought therein or not.

2d. That the right of the’ wife to her suit was independent of and ■co-equal with that of the husband; that if sued by the husband, the wife could set up her claims by reconventional demand or resort to an Independent action; and in the event that she pursues the latter course, the court in which such action is brought is bound, in the first instance, to determine the question of jurisdiction, if raised, subject to review by this Court alone; and that his authority or right to act, touching this ■question, is not affected or transmitted by the suit between the parties, before a different court, or the fact that such court had rendered a deci■sion on the question of the domicil ’of the parties, and maintained its jurisdiction of the case.

We find that the suit mentioned in the proceedings and answer of the defendant judge, was brought by Hernandez against his wife in the District Court of the parish of St. Bernard, on the 16th of May, 1881. The suit was for a divorce on the ground of adultery.

There is no question but that the Civil District Court of the parish •of Orleans had jurisdiction ratione viaterice of the suit for separation from bed and board instituted by the plaintiff in the suit against Joseph .Hernandez, her husband. The court, too, was certainly competent to pass on and decide the question of its jurisdiction of the case, raised by the exception of domicil. It had the same right and authority to determine this question, as the court of St. Bernard had to decide on the question of its jurisdiction of the suit between the same parties instituted before that "court. The two courts are equal, as respects the question of their jurisdiction, and are entitled equally to the legal presumption in favor of the correctness of their respective rulings, orders and proceedings. The parties, too, to these suits are equals before the law, and endowed with equal rights and privileges. The one, just as much as the other, if -aggrieved, had the privilege of claiming judicially the redress of such grievance, and the liberty of choosing the tribunal which, according to their judgment, was the proper one before'which to make their respective demands. They have both exercised this legal right — both brought suits before two different courts. As the parties are husband and wife, and as they can have but one domicil, and but one court — the court of that domicil — can legally entertain jurisdiction of a suit between them of the character mentioned, it is very evident that one suit or the other was brought before the wrong tribunal. Of course, it would be impossible for this Court to determine this question of jurisdiction and domicil without examining the evidence on the subject brought up in the records from both courts. This we do not feel authorized to do, since these rulings, of themselves, can work no irreparable injury; and relief from the effect of them can be afforded by appeal. It is, however, urged that these courts may, in the course of the proceedings, issue conflicting orders and decrees which.may cause such injury, and that the Civil District Court of the parish’ of Orleans has already issued a rule respecting the allowance of alimony to the wife, and the court of St. Bernard may do the same thing, and that such a conflict of authority and two judgments for alimony would work a great hardship to the relator. It is true that the rule mentioned has issued and has been fixed for trial. This may be sufficient to cause an apprehension of injury, admitting that the court was without authority in the premises, as alleged; but a mere apprehension of injury is not of itself sufficient to justify the interference of this Court with the proceedings of an inferior 'tribunal, acting within the general scope of its powers, and exercised in an appealable case.

There must be a plain usurpation of authority or an arbitrary exercise of power on the part of such tribunal, and the injury must be actual or immediately impending, to call for such interposition by this Court. For instance, the action of the defendant judge complained of, so far has caused no such injury. Non constat, that upon the trial of the rule, he would award any alimony to the wife; and even if he did, so long as the same thing is not done by the judge of the St. Bernard court, no such injury would be sustained. The former judge would simply be granting that which the latter was asked by the relator himself to do. If both courts had actually awarded alimony, and their decrees were being enforced, it might present a case for our interference. But such a state of facts does not exist, and probably never will.

It is true, that in the suit pending in New Orleans, the plaintiff in that suit, the wife, made application for alimony, and the judge granted a rule looking to the allowance of the same. And it is also true that, in the suit instituted by the relator, the husband, in the parish of St. Bernard, he asked in his petition that the wife should be allowed alimony. He asked also that the wife might be authorized to defend the suit; but while we find that the latter order was duly rendered by the judge, he has declined to grant, or at least has not granted the former request. Nor is it probable that he ever will dó so. The law authorizes a judge, upon a proper showing, to grant alimony during the pendency of the suit to a wife, demanding it, who “ has left or declared her intention to leave the dwelling of her husband,” and who has sued her husband for separation from bed and board, or for a divorce, C. C. 147,148; but there is no warrant or legal authority for a judge to grant such allowance on the application of the husband, especially in a suit charging the wife with adultery. Such an application on his part would be utterly inconsistent with the action he brings to brand his wife with a charge sufficient to cover her with infamy, and at the same time soliciting the court to aid her out of his means to relieve the distress brought on by her offense, and at the same time, what adds to the irregularity of the application is, that the husband, if he desires to contribute to the pecuniary assistance of his wife, during this period of distress, is perfectly at liberty to do so without any action of the court looking to its compulsion. The whole theory of alimony is the presumed innocence and good faitli of the wife, her actual need, the unwillingness of the husband to contribute to her support, and the necessity of the court’s interposition to compel him to do so.

Should the respondent judge try the rule pending and allow the alimony claimed, and should the judge of St. Bernard court, in a spirit of usurpation, grant the extraordinary request of relator, and the relator is thereby subject to the necessity or danger of paying a double allowance of alimony, in such an actual conflict of' power and authority between the courts, of which the relator would be the victim, a condition of things might be presented, justifying or demanding our interference. As it is, we do not find that any thing has been done, or is likely to be done, that cannot be remedied by appeal.

As said by us in case of State ex rel. vs. Rightor, Judge, 32 An. 1186: “It is not in all cases in which a court may have no jurisdiction that a prohibition can issue from this Court. It is not a writ of right. 19 L. 167, 174; 27 An. 336; 29 An. 360. It is an extraordinary one, which can only issue where the court having no jurisdiction clearly usurps jurisdiction.” C. P. 846; 4 An. 11; 16 An. 186. See, also, 32 An. 549, 553, 676.

For these reasons, it is ordered that the preliminary restraining order herein made be rescinded, and that the application for a prohibition and certiorari be refused at relator’s costs.


author: Bermudez, C. J.

text:
    No. 8292.
    The State ex rel. Mrs. Fairex vs. Judge of the Civil District Court for the Parish of Orleans.
    .AppellaDt having made no objection to try in the Court below a Rule to rescind the order of appeal, as improvidently granted because the judgment appealed from was rendered by consent, the District Judge did not exceed the bounds of his jurisdiction in making the Rule absolute and rescinding the order of appeal. This Court will not, therefore, control his action by Prohibition. The proper remedy, in such a case, is by appeal from the rescinding order.
    .ApPLIOATION for the writ of Prohibition.

      W. T. Houston, Judge, Respondent.

      Ghs. Louque for the Relatrix.

      JE. T. Florance for the Respondent:
    'First — The inferior oourt has power, exproprio motu, and a fortiori, upon motion of parties, to rescind an order of appeal improvidently issued, either “because the delay within which it should have been asked has elapsed, or because the case was unappealable.” 32 An. 816.
    Second — The inferior court is the one to try the issue of the appealableness of a case. 32 An. 141; Ibid, p. 816.
    • Third — A party cannot appeal if the judgment complained of was a consent judgment. C. P. Art. 567, Ho. 1; 32 An. 141.
    Fourth — It is only where the consent does not appear of record, that the cause will he remanded'to the inferior court, to ascertain whether the judgment was one by consent. 32 An. 141.
    ’ Fifth — An inferior court, after improvidently granting a suspensive appeal, where none should, have been granted, may rescind the order and issue execution on the judgment appealed from. 32 An. 816; 21 An. 44, 55,114; 12 An. 175; 5 An. 366; Ibid 518; 4 An. 3.
    Sixth — A judicial admission is complete in itself and is more solemn than a written instrument.
    • Seventh — The objection that the District Judge cannot take cognizance of an agreement entered into between parties litigant, until the same is reduced to writing in conformity , . with the rules of the District Court, is considered waived if not made either at the time of the rendition of the judgment or on the trial of the rule to rescind an order of appeal.
    Eighth — The prohibitive authority of the Supreme Court of Louisiana, will not he interposed to aid a person, who has an adequate remedy hy appeal. 32 An. 1182; 26 An. 750 ; 21 An. 124; 11 An. 696; 8 An. 92; 19th La. Rep. 478; 2d La. Rep. 88; 3M. 42.
   The opinion of the Oourt was delivered by

Bermudez, C. J.

This is an application for a prohibition.

The relatrix charges that, after granting her a suspensive appeal from a judgment of one thousand dollars on a claim for a larger amount against her, under which she furnished bond and security, as the law requires, the Judge of the District Oourt entertained a rule to rescind the order of appeal and, although the surety was proved good and solvent, made the rule absolute; and that he exceeds his jurisdiction.

In his return, the judge says, that he rescinded the order, not 'because the surety was not good and solvent, but because, on the trial of the rule it was shown that the judgment rendered and appealed from was one from which no appeal could be taken, for the reason, that it was rendered by consent of parties in open court, and that the order of appeal was improvidently granted.

In justification of his conduct and in evidence of his statements, the judge appends to his answer the original judgment, the rule to rescind, the evidence under it, and his' judgment upon it.

We have no authority, in the present proceeding, to inquire into the correctness of the judgment rendered on the rule to rescind the order of appeal. The only question which can be considered by us, is whether, by rescinding the order of appeal, the judge has exceeded the bounds of his jurisdiction.

The judgment appealed from, does not, on its face, show, that it was rendered by “consent” of parties. On the contrary, it reads: “In this case, the court, considering the law and evidence to be with plaintiff, It is ordered,” etc.

The rule to rescind alleges that it was rendered by consent.

When the rule was called for trial, the defendant, or appellant, did not except to the form of the proceeding or to the jurisdiction of the court, and evidence was offered by both parties to the rule, without any objection, although, in the course of the trial, objections were made to the admissibility of certain evidence, or touching other matters and, upon adverse rulings, it is stated that “ bills are reserved.”

The fact sought to be established on one hand and disproved on the other, was one anterior to the rendition of the judgment, which did not appear of record in the proceedings in which the judgment complained of, and appealed from, was rendered.

Clearly, after granting the suspensive appeal and receiving the bond, the judge was not divested of further jurisdiction to test the sufficiency of the bond and the qualifications of the surety. He would have had no right to go behind the face of the judgment, however it may have 'been at variance with the alleged consent and understanding of the parties, on a rule to rescind the order of appeal. He could surely have done so in a suit in nullity of the judgment or of the order, the object of which would have been, under a new state of facts, to provoke a relief which this Court could not have afforded, on the appeal taken from the judgment on the merits of the case.

The issue involved in the case on appeal and in the rule to rescind, are entirely different. Lis pendens could not be pleaded. A judgment in the former would not constitute res judicata in the latter. Both remedies, under such circumstances, can well co-exist. 24 An. 168; 12 An. 726; 30 An. 879.

The moment, however, that the parties consented to try the question' of fact raised by the motion to rescind, they not only waived all objection to the form of the proceeding, but clearly acknowledged jurisdiction in the court. The judge was, therefore, perfectly authorized to^ decide the question of fact as fully as if it had been presented in a regular proceeding by petition and answer joining issue.

The power of an inquiry into and of a determination of the question -of fact raised on the rule, like that of acquiescence, appertains peculiarly to the lower court, clothed as it is with original jurisdiction. Where questions of that character have been raised in this Court, the practice has been to refer the issue to the lower court. 32 An. 141, 816, 663; 23 An. 37; 29 An. 576; 2 An. 430. Such a reference implies in the court a qua the power of inquiry and determination, but is not essential for the exercise of such power, where the parties consent to the proceeding.

The better practice is to bring the fact to the knowledge of this Court, by which the issue is referred to the lower court for investigation and adjudication, subject to review of the ruling on it by this Court, before passing on the merits of the main case on appeal.

The judgment rendered by the District Judge is one from which the relatrix can take an appeal. 32 An. 475.

When the two judgments, that on the merits allowing the one thousand dollars, and that rescinding the order for a suspensive appeal, which practically would make final the judgment on the merits, as having been rendered on the consent of parties, will be before us for revision, we will have authority to determine their correctness, but we are powerless to do so until then.

Under the circumstances, we do not find that the District Judge has exceeded the bounds of his jurisdiction.

A suspensive appeal from the judgment rescinding the order of appeal, will necessarily maintain, in its integrity, the order of appeal.

The case presented by the petition is not at all that disclosed by the judge and by the proceedings accompanying his return. The petition is, besides, deficient.in not stating in what manner the judge exceeds the bounds of his jurisdiction. It does not aver that he has allowed the plaintiff to have the judgment appealed from executed.

The authorities referred to by both parties have no application to this case, which is entirely, sui generis, without precedent.

It is ordered that the application for a prohibition be refused at the cost of relatrix.

Rehearing refused.


author: Levy, J.

text:
    No. 7997.
    Crescent City Live Stock Landing and Slaughter-House Company vs. the Butchers’ Union Slaughter-House and Live Stock Landing Company.
    . The sworn allegation of Plaintiff in injunction, that the act to he enjoined will cause irreparable injury, is not conclusive oí the fact and does not deprive the judge who granted the injunction, of all discretion in dissolving it on bond. 32 An. 1192.
    APPEAL from the Sixth District Court for the parish of Orleans. Eightor J.

      Mott & Kelly and Thos. J. Semmes for Plaintiff and Appellant:
    P'irst — Injunction obtained on sworn allegation of irreparable injury cannot be dissolved on bond if the allegations were sufficient to obtain the injunction.
    "Second — A suit cannot be dismissed on plea of lis pendens when no proof was offered of the existence of another suit involving the same issues.
    Third — The defendant had no right to slaughter, without the assent of the City of New Orleans, and no right to erect a slaughter bouse, without having obtained an ordinance of the city designating the place for its location, concurred in by the Board of Health.

      B. E. Forman and F. C. Zacliarie for Defendant and Appellee:
    Pirst — Plaintiff’s exclusive privileges, with all others, were abolished. Constitution, Arts. 248, 258.
    Second — And were granted only in exercise of police power. 22 An. 545 ; 16 Wallace, 36.
    Third — Which is not the subject of contract. 94 U. S. 645 • 97 U. S. 25; 101 U. S. 814.
    JFonrth — The State alone can sue to forfeit charter, and plaintiff has no interest in preventing defendants from acting as a corporation, 28 An. 649; 2 An. 321; 4 An. 147, and cannot be injured by a dissolution of the injunction. 32 An. 1192.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff has taken an appeal from the judgment of the lower court dissolving the inj unction herein on defendants’ giving bond, and from the final judgment maintaining the plea of lis pendens and dismissing plaintiff’s suit.

Plaintiff corporation in the petition represents that, under its charter, it has the exclusive right and privilege to erect and maintain, in the parishes of Orleans, Jefferson and St. Bernard, wharves, stables, sheds, .yards and buildings necessary to land, stable, shelter, protect and preserve all kinds of animals, and to carry on the Live Stock Landing and •Slaughter-House business, and all animals destined for sale or slaughter in the city of New Orleans or its environs, shall be landed at the landings and yards of said company; .that, by the act of its incorporation, all persons are prohibited from establishing slaughter-houses above the limits set forth in said act, and all animals are required to be inspected by an officer of the State before they can be slaughtered for human food, and this inspection must be at the slaughler-house of plaintiff; that notwithstanding all this, the defendants, styling themselves “ The Butchers’ Union Slaughter-House and Live Stock Landing Company,” have pretended to form themselves into a corporation under and by virtue of the laws of the State of Louisiana, for the purpose of erecting landings, pens, buildings and slaughter-houses and slaughtering animals for food in the parish of Orleans and elsewhere; that there is no authority in law for the formation of such corporation as set forth by defendants, and they have nu right to act as an incorporated body; that defendants have no right by law, without permission first had and obtained of the proper authorities, to erect or maintain any slaughterhouse and the incidents thereof in the parish of Orleans, or elsewhere in the State of Louisiana; that the actings and doings of the aforesaid parties, as aforesaid, cause irreparable injury to petitioner, and cause a damage to petitioner of over one thousand dollars, as wrong-doers, for which they are liable in solido.” Plaintiff prayed for judgment against said parties in solido for $1500, “ and that the pretended charter of said company be decreed to be null and void and of no effect, and that the parties named be severally, and the said Butchers’ Union and SlaughterHouse and Live Stock Landing Company, through Orman Troscher, the pretended president thereof, be enjoined from exercising the powers, privileges and franchises of a corporation of the State of Louisiana for the purposes specified in their alleged charter, and that the injunction be made perpetual.”

Defendants filed an exception of lis pendens, alleging “ that the same suit and same issues, between the same parties, are now pending in this Court, being No. 10,940 on the docket thereof, and praying for the dismissal of this suit. Shortly thereafter, and before trial of the exception, defendants took a rule for the dissolution of plaintiff’s injunction on bond. There was judgment on the rule, making it absolute and dissolving the injunction on defendants’ giving bond in the sum of $500. There was also a final judgment, maintaining the plea of lis pendens and dismissing plaintiff’s action.

Plaintiff seeks the reversal of the judgment dissolving the injunction, on the grounds, that an injunction obtained on sworn allegations of irreparable injury cannot be dissolved on bond.

In the case of Crescent City Live Stock Landing and Slaughter-House Company vs. Police Jury, 32 An. 1192, recently decided by us, this question was presented, and we there held: “Nor do we consider that the mere allegations in the petition, sworn to though they be by the plaintiff, that the act in question would cause such (irreparable) injury, are-conclusive on the subject, and deprived the judge a quo of all the discretion in the matter touching the dissolution of the injunction.” In this.case, as in that, we think that discretion was legitimately exercised. y

The plea of lis pendens was maintained, unsupported, as disclosed by the record, by any evidence whatever. The judgment in that respect cannot stand.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court dissolving the injunction on bond be affirmed; and it is further ordered, that the judgment sustaining the plea of lis pen-dens and dismissing plaintiff’s suit, be annulled, avoided, and reversed, and that this case be remanded to the Civil District Court of the parish of Orleans, which has superseded the Sixth District Court for said parish, to be tried according to law; appellee to pay the costs of the lower court incurred in connection with said plea of lis pendens and the costs of 'this appeal.


text:
    No. 8310.
    State of Louisiana vs. Walter Rose.
    After the State has closed its case and the accused declined to offer any evidence, the Qourt may, within its legal discretion, permit the State’s Counsel to call and examine other witnesses.
    APPEAL from the Twentieth Judicial District Court, parish of Lafourche. Knoblock, J.
    This case was submitted in New Orleans, and by consent of parties was decided at Monroe.

      J. 8. Billiu and Taylor Beattie for Defendant and Appellant:
    Eirst — There can be no rebuttal where there has been no evidence for the accused.
    Second — "When the State closes its case and the accused offers no evidence the Slate cannot call any other witness.

      JS. A. O’Sullivan, District Attorney, for the State. Appellee:
    It is in tlie discretion of the judge to allow the State, having closed, to offer another witness. 27 An. 694; 29 An. 716.
   The opinion of the Court was delivered by

Levy, J.

On an information for " shooting at with intent to commit murder,” Walter Rose was tried, convicted and sentenced to imprisonment at hard labor in the State Penitentiary for the term of eighteen months, and he has taken this appeal.

On the trial of the case the District Attorney, for the prosecution, having examined several witnesses, stated to the court that he rested his case, whereupon the defendant declined to introduce any witnesses, and then the District Attorney caused other witnesses to be called and sworn, on behalf of the State, although defendant had offered no testimony. Counsel of defendant objected thereto, for the reason, that the State had closed its case and was not entitled to swear other witnesses in the case, inasmuch as defendant had produced no testimony and there was no matter for rebuttal. This objection being overruled, defendant took and filed a bill of exceptions.

The grounds upon which a reversal of the judgment is claimed are:

1st. That there can be no rebuttal where there has been no evidence for the accused.

2d. When the State closes its case, and the accused offers no evidence, the State cannot call any other witness.

The authorities cited by the District Judge in his reasons for overruling the motion for a new trial, to our minds, sustain his ruling on the admissibility of the.testimony which is complained of.

An eminent writer and recognized authority on criminal law (Wharton) says: “ The order of testimony is for counsel to arrange, subject to the discretion of the court. The general rules prescribed (e. g. that party must make out its case in its evidence in chief), are founded on right reason' and will be usually maintained. But, it is within the discretion of the court trying the case to permit these rules to be suspended for the purpose of justice; anda deviation in this respect from the usual practice is not the subject for revision by an appellate court.” Wharton’s Grim. Law, $ 3009. Also: “ The judge, at the trial, has discretion as to the admission of evidence, out of the regular and usual course, and must exercise such discretion when necessary to promote justice.” Id. I 3342.

Adopting the principles thus enunciated, our own Supreme Court, has in several decisions acted in accordance therewith, and we think established our jurisprudence on this question.

In State vs. Coleman, 27 An. 694, it was held: “ The objection that the court allowed the Attorney General, after announcing that the evidence in behalf of the State was closed, to offer another witness, is without weight. It was within the discretion of the judge.” And in State vs. Colbert, 29 An. 716: “It was a matter to be left to the sound discretion of the judge whether he would, after the State had announced that it had closed and before argument began, allow further evidence.” See, also, State vs. Woods, 31 An. 268.

The rule in regard to confining testimony offered in rebuttal to the matters elicited in the examination in chief, has no application to the introduction of testimony not in rebuttal, offered under the circumstances of this case, justified by the authorities above cited.

There was no error as complained of, and the judgment of the lower ■court is, therefore, affirmed with costs.


text:
    No. 7996
    Crescent City Live Stock Landing and Slaughter-House Company vs. City of New Orleans. Martin Wolf, Intervenor.
    Act Ho. 118 of tlie Legislature of 1869, (incorporating the Crescent City Live Stock Landing and Slaughter-House Company), was clearly within the police powers of the State, and was a valid and legal enactmont of the General Assembly. 23 An., 545; 16 Wallace, 36.
    But such an Act of the Legislature cannot bind the State: the rights therein granted are re- ? vocable at the will of the sovereign, and the grantee holds nothing, indeed, but a license subject to abrogation by future constitutional and, even, legislative action. 101 XT. S., 814.
    Such a Charter does not create a contract between the State and the grantee, protected from impairment by the Constitution of the United States.
    Article 258 of the Constitution of 1879 has clearly abrogated all the monopoly features or exclusive privileges created by said Act Ho. 118 of 1869.
    APPEAL from the Fifth District Court for the parish of Orleans. Bogers, J.

      Mott & Kelly for Plaintiff and Appellant:
    First — The grant by the State of Louisiana to the Crescent City Live Stock Landing and Slaughter-House Company, by act Ho. 118 of 1869, of the exclusive right to carry on the business of live stock landing and slaughtering in the parishes of Orleans, Jefferson and St. Bernard, for a period of twenty-five years, is a valid grant, binding upon the State and the citizens of the State. State exrel. Belden vs. Fagan, 22 An. 545; Slaughter-House Cases, 16 Wallace, 36.
    Second — The Act embodied a contract between the State and the Company the obligation of which is under the safeguard of Art. 1. Sec. 10, of the Constitution of the United States, which forbids a State from passing any law impairing the obligation of contracts. Montpelier Academy vs. George, 14 L. 395; Williams vs. Mills, 11 Ired. 561; Boston and Lowell Uw. Co. vs. Salem and Lowell, Boston and Maiue, and Lowell and Lawrence It. It. Cos-, 2 Gray, 1; Fletcher vs. Peck, 6 Cranch, 135; People vs. Jackson and Mich. Plank Foad Co., 9 Mich. 307; Cooley Constitutional Lim. 574-6.
    Third — Articles 258 and 248, of the Constitution of 1879, so far as they may be construed to abrogate tbe contract between the State and the Company embodied in the Act of 1869, cannot he sustained on the assumption that they were adopted in the exercise of the police power for the promotion of the health of the City of New Orleans and vicinity. So far as those articles may be construed to impair the obligation of the contract embodied in the Act of 1869, they are to he held inoperative and void. 94 U. S. 645; 97 U. S. 25,501; 101 U. S. 816 ; Cooley Constit. Lim. 574, 576; 9 Mich., 307.

      B. B. Forman and F. G. Zacharie for Defendant and Appellee:
    First — Monopolies are abolished and prohibited. Constitution 1879, Arts. 46, 248, 258.
    Second — The exclusive privileges granted to Crescent City Slaughter-House Company by Act ■ 118,1869, were not within the contracting power of the Legislature hut an exercise of the Police Power; 22 A. 345; 16 Wallace, 36, and may he abolished at the will of the people of the State. Boyd vs. Ala., 94 U. S. 645; Beer Co. vs. Mass., 97 U. S. 25; Stone vs. Miss. 101 U. S. 814.

      F. K. Washington for Intervenors and Appellees:
    First — That the title of Act Ho. 119 of 1869, under which plaintiff was incorporated, being “An act to protect the health of the City ofiHew Orleans,” etc., necessarily causes its charter to fall within the purview of health regulations, ordinances, or police statutes, and that a claim of a company to have a “ vested right ” or “ contract ” to protect the health of the City of New Orleans is ridiculous.
    Second — That the Supreme Court of the State of Louisiana, see 22 An. 545, and the Supreme Court of the United States, see 16 Wallace, p. 36, have expressly decided in reference to the act incorporating the plaintiff, that the granting of it was an exercise of the police power of the State.
    Third — That no State can divest itself irrevocably, or entirely part with, to an agent corporation, or company, of its duty and function of caring for the health an‘d well-being of its-citizens, and that the nature and subject-matter of such rights are resumable by the State at pleasure, and no corporation can claim a “ vested right ” therein. See Otto, 11th. vol. (U. S.) Reports 101, p. 829.
    [Fourth — By articles 248, 234, and 258 of the Constitution of 1879, the State has conferred “ on. the police jury of each parish and the municipal authorities alone, the power of regulating the slaughtering of animals for food,” and announced this power “shall not be restricted to the lands or houses of any individual or corporation.” By this it does not take away from plaintiff the right to pursue its business, but it resumes and exercises its. police power by creating other agencies through which it is to be exercised.
    [Fifth — It is shown, see Cooley’s Constitutional Limitations, pp. 282, et seq., and cases there-cited, “that the police power of the State cannot be alienated even by express grant;”' “that the State cannot barter away or abridge any of its essential powers, the existence of which is essential in full vigor to the well-being of organized society,” and that if a-State should afterwards annul any such grant, it is not obnoxious to so much of the. [Federal Constitution as imposes a vested right in the obligations of a contract.
    Sixth — By recent decisions of the Supreme Courb of the United States, see 7th Otto, page 33: (97th U. S. Reports, and also 98th vol.), it is declared it is no longer an open question that the police power of a State is inherent in it and that it cannot irrevocably part with it, and that the resumption of its powers in this regard does not conflict with the [Federal-Constitution.
    Seventh — In tlie United States Supreme Court Reports, vol. 101, 11th Otto, page 829, we find, that the Barmouth College case, 4th Wheaton, page 518, strangely and strongly relied on by plaintiff in the lower court, is quoted as authority in support of these views, and Chief Justice Waite says: “All agree that the Legislature cannot bargain away the police power of the State.” It is shown in 22 An. 545, the statute creating this plaintiff is a,. “ public statute.” The Dartmouth College case was that of a private corporation. Hence* it has no reference to this case, and “the engineer is hoisted by his own petard.”
   The opinion of the Court was delivered by

Levy, J.

Plaintiff, an incorporated company, instituted this suit, im •which it prayed for a writ of injunction “restraining the City of New Orleans from entertaining any petitions for, and from ever designating at. place or places for the landing, yarding, sheltering or slaughtering any animal or animals intended for human food, in the parishes of Orleans,. Jefferson and St. Bernard, other than at the slaughter-houses and premises of petitioner, and above the United States Barracks, on the east or left bank of the Mississippi river, and above the depot of Morgan’s: Louisiana and Texas Bailroad, on the west or right bank of said Mississippi river, and that the injunction be made perpetual, and that said City of New Orleans be condemned to pay to petitioner twelve hundred dollars damages.” The injunction prayed for was granted by the lower court.

Martin Wolf intervened, by petition, alleging that he was largely engaged in the slaughtering of animals and sale of meats in the upper portion of the City of New Orleans, and is largely interested in the result of this .suit; that plaintiff has no exclusive right, under the law, or exclusive privilege of slaughtering animals at its yards, as claimed in its petition, etc.

The City o’f New Orleans, in her answer, makes a general denial of all the allegations in the petition, so far as the same may have a tendency to give plaintiff any cause of action against her; alleges that the statute creating the plaintiff corporation, approved March 8th, 1869, is a public statute, and the powers therein were delegated under the general police power of the State; that plaintiff gave no bonus and paid no consideration whatever either to the State or city for the exclusive rights, privileges and benefits thereby conferred; that there is no contract thereby or thereunder between plaintiff and the State; that the General Assembly of 1869 could not irrevocably, or for a limited time, divest the State of its police power, or prevent subsequent Legislatures from revoking and enlarging the privileges granted; that, by Art. 248 of the Constitution of 1879, it is provided “ that, the constituted authorities of all incorporated municipalities of the State shall, alone, have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided, no monopoly or' exclusive privilege shall exist in this State, nor such business be restricted to the lands or houses of any Individual or incorporation; provided, the ordinances designating the places for slaughtering shall obtain the approval of the Board of Health or other sanitary organization;” that the aforesaid article of the Constitution is valid and obligatory upon all the inhabitants of this State, both individuals and bodies corporate, and amounts to a revocation of the powers granted plaintiff under the act of 1869, and repeals the monopoly or exclusive privilege created by said statute in plaintiff’s favor; that, in accordance with said constitutional provision, the city, through its Council, was about passing an ordinance, with the concurrence of the Board of Health, regulating the slaughtering of cattle and other live stock, within her limits, and designating the places for slaughtering, when arrested and prevented by the injunction herein issued; that no court has a right to enjoin the execution of the Constitution or any portion thereof. Respondent denies that the said provision of the Constitution violates, in any manner, the Constitution of the United States; claims damages to the extent of one thousand dollars, and prays for the dissolution of the injunction.

There was judgment dismissing plaintiff’s suit and dissolving the' injunction with costs. Plaintiff has appealed.

The intervenor, in his answer to the appeal, prays for an amendment of the judgment so as to decree “that the plaintiff has no exclusive privilege to keep slaughter-houses, abattoirs or stock landings, in the parishes of Orleans, Jefferson and St. Bernard, or houses for the slaughtering of animals intended for human food; and that plaintiff has no right to restrict such business to its property, lands or houses.”

The grounds on which plaintiff relies to obtain the relief sought in this suit, are the following:

1st. “The grant by the State to the company by Act No. 118 of 1869, of the exclusive right to carry on the business of live stock landing 'and slaughtering in the parishes named, for a period of twenty-five years, is a valid grant, binding upon the State and the citizens of the •State.
2d. “ The act embodied a contract between the State and the company, the obligation of which is under the safeguard of Art. 1, section 10, of the Constitution of the United States, which forbids a State from ’ passing any law impairing the obligation of contracts.
3d. “ Articles 258 and 248 of the Constitution of 1879, so far as they may be construed to abrogate the contract between the State and the company, embodied in the act of 1869, cannot be sustained on the assumption that they were adopted in the exercise of the police power for the promotion of the health of the City of New Orleans and vicinity. So far as those articles may be construed to impair the obligation of the contract embodied in the act of 1869, they are held to be inoperative and void.”

The defendants and the intervenor, on their part, contend: That, by. Arts. 46, 248 and 258, monopolies are abolished and prohibited; that the exclusive privileges granted to the Crescent City Slaughter-House Company by Act 118, of 1869, were not within the contracting power of the Legislature, but an exercise of the police power, and may be abolished at the will of the people of the State.

The controlling questions for decision are then:

Does the Act No. 118 of 1869, creating this corporation, constitute a ■contract between the State and the cpmpany ?

Was that act an exercise of the police power'of the State, and. if so, ■could it legally become the subject of a contract, irrevocable during the term fixed therein ?

Do the exclusive rights and privileges accorded by the act, create a monopoly, and, if so, are the monopoly features in the charter of the ■corporation abolished by article 258 of the Constitution of 1879 ?

Are articles 248 and 258, so far as they may apply to the features in the act 118 of 1869, obnoxious to the objection that, and inoperative and void because they violate section 10, Art. 1, of the Constitution of the United States ?

Act No. 118 of 1869 is entitled “ An act to protect the health of the City of New Orleans, to locate the stock landings and slaughter-houses- and to incorporate the Crescent City Live Stock Landing and SlaughterHouse Company.” It embraces the following main provisions: Prohibiting the landing, keeping or slaughtering of animals except at the landing of and by the Slaughter-House Company, incorporating the-members of the company; defining the limits within which the landings, pens, slaughter-houses, etc., shall or maybe constructed or erectedr fixing the fees and charges; imposing penalties for violation of the act or interfering with the privileges granted therein; closing all other stock-landings and slaughter-houses within the parishes of Orleans, Jefferson and St. Bernard; requiring all animals, the meat whereof is to be for sale in the parishes of Orleans and Jefferson, to be slaughtered in the-slaughter-houses thus erected by the company, under the penalties prescribed; requiring the appointment by the Governor of the State of an-inspector, clothed with police powers, to inspect all stock that is to be-slaughtered; fixing the fees of the inspector and the bond to be given-by him to the State; fixing the fees for slaughtering; requiring that all fines and penalties recovered for violation of, or interference with, the-privileges granted the company, to be paid, one-half to the company or corporation, in consideration of their prosecution for violation of the-act, and the other half to the Auditor of Public Accounts, to the credit of the educational fund; limiting the continuance of the privileges-granted to the term of twenty-five years from the passage of the act.

The act of the Legislature, the provisions of which we have just enumerated, constitutes, under the legal definition of the -term, primes facie, a contract. Parsons in his work on Contracts, vol. 1, p. 6, defines-a contract as “an agreement between two or more parties for the doing- or not doing of some particular thing.” 4 Wheaton, 197; 2 Blackstone Com. 446. It must, therefore, be conceded that, on the face of the act, the incorporation or charter of the company forms a contract, and if it-is not liable to the legal objections, that the subject-matter or object-contemplated, was beyond the power or right of the contracting parties,, is entitled to the protection afforded by the Federal Constitution, which inhibits the impairment of contracts by any legislative, or even constitutional, enactment of a State.

In 23 An. 545, State ex rel. Belden, Attorney, General, vs. Wm. Fagan et al., the Supreme Court of this State held that Act No. 118 of 1869, the object of which was “ to protect the health of the City of New Orleans,” etc., was “ clearly within the police powers of a State.” The Court further said: “ Does the act of 1869 cease to be a police regulation because it locates the stock landing and slaughter-houses elsewhere and creates a corporation as a means to carry out the legislative will ? We think not. The members of the General Assembly were the sole judges as to the instruments by which they should enforce their police regulations. What the State can do itself, it can do through a corporation. 11 An. 371.”

The Supreme Court of the United States, passing upon this question in the Slaughter-House Cases, 16 Wallace, 36, also held in plain and forcible expressions that this act was the exercise of the police power of the State, and was within the power of the Legislature of Louisiana. That distinguished tribunal declared in the case cited : “ The authority of the Legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States.

Hence, we are of the opinion that, so far as the restrictions in regard to the landing and slaughtering of stock are concerned, within the limits defined in the act, and the prevention of these beyond their limits, the State exercised the police power as she was competent to do, and the delegation of these powers, to that extent, to the corporation was vested in her discretion and within her authority. In Stone vs. Mississippi, 101 U. S. 814, it was held, Chief Justice Waite being the organ of the Court: All agree that the Legislature cannot bargain away the police power of a State. Irrevocable grants of property and franchises may be made, if they do not impair the supreme authorities to make laws for the right government of the State; but no legislature can curtail the power of its successors to make such laws as they deem proper in matters of police. 34 N. Y. 657; 94 U. S. 645. Many attempts have been made in this Court and elsewhere to'define the police power, but never with entire success. * * * No one denies, however, that it extends to all matters affecting the public health or the public morals.” 97 U. S. 25; Id. 501. We think the reasoning of the Court in regard to the right of the State to withdraw the privilege granted to the lottery company, which was under consideration in the case of Stone vs. Mississippi, is strictly applicable to the withdrawal of the particular police power granted or delegated by the Act No. 118 of 1869 of this State. The Court said : “ All that one can get by such a charter, is a suspension of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect nothing more than a license to enjoy the privilege on the terms named for the specified time, unless it be sooner abrogated by the sovereign power of the State. It is a permit good as against existing laws, but subject to future legislative and constitutional control or withdrawal.”

In so far as the provisions of Act No. 1Í8 of 1869 conflict with or are repugnant and in opposition to the provisions of article 248 of the Constitution of 1879, such provisions are abrogated, and the police powers necessary to carry them out, which were delegated to the corporation or 'company, are withdrawn, and by that article are, to the extent covered by its terms and incident thereto, conferred on the police juries of the several parishes and the constituted authorities of all incorporated municipalities of the State. Article 248 of the Constitution is as foliows: “The police juries of the several parishes and the constituted authorities of all incorporated municipalities of the State shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided, no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation; provided, the ordinances designating the places for slaughtering shall obtain the concurrent approval of the board of health or other sanitary organization.”

We think that, so far as the police regulations touching the. subject-matter of the limits within which the landing, keeping and slaughtering of animals, prescribed by the Act 118, are involved, article 248 of the Constitution of 1879 does not repeal them. The selection apd indication of the limits and localities are fixed by the-act; they do not fall within the objections to irrevocable grant of police powers discussed ■above and considered in the decisions quoted. Until amended or repealed, as regards the mere limits prescribed, they continue in force and effect. The act becomes inoperative only so far- as it is abrogated by the constitutional provisions mentioned. It is needless to waste words in any discussion of the question as to the existence of monopoly features in the Act 118. Such features stand forth in the boldest relief. Article 258 of the present Constitution addresses itself directly to them, ■and they are deprived of force, vitality, and even existence.

Art. 258, reads: “ All rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsist■ent therewith, shall continue as if the said constitution had not been adopted. But the monopoly features in the charter of any corporation mow existing in the State, save such' as may be contained in the charters ■of railroad companies, are hereby abolished.” Holding, then, the views which we have hereinbefore expressed, and considering that the act ■does not create such contract as is protected by the 10th section of Art. 1 of the Constitution of the United States, we are of opinion that the •exclusive rights and privileges conferred upon and granted to the company plaintiff, no longer exist, but by operation of the Constitution are abolished.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

Behearing refused.


text:
    No. 8223.
    W. J. Hodgson vs. Mrs. Ella Roth and Husband.
    Defendant in executory process is not entitled to an injunction -without bond under Article 739, C. P., on the ground that the obligation sued upon was null and without consideration ab initio.

    On the trial of the suit, in which an injunction was issued without bond, no evidence is admissible in support of allegations other than those containing any of the reasons for the injunction as are enumerated in Article 739, O. P.
    The rule, in computing certain legal delays, that neither the day of notice nor that on which the act is to be done are included, does not apply to Article 361, C. 0., which provides that agreements between tutors and their wards arrived at the age of majority are null, unless preceded by a full account and vouchors rendered ten days previous to the agreement.
    Damages cannot be allowed in the same judgment which dissolves an injunction in a case of executory process. Affirming Decision in Testard vs. Belot, 33 An., (not reported), whioh re-affirmed 31 An., 729, and 32 An., 932 and 1296.
    APPEAL from the Twenty-third Judicial District Court, parish of Iberville. Cole, J.

      Barrow & Pope for Plaintiff and Appellee;
    First — The amended petition was improperly allowed. Being offered on the day of trial it was too late. The injunction having issued without bond, no ground requiring a bond could be considered. 31 An. 112; 30 An. 1164. Amendments to petitions for injunction not allowed. Rhodes vs. Union Bank, 7 R. 63; Bayley vs. Tate, 10 R. 45.
    The pendency of a suit to evict whioh was the averment of the amended petition, requires a bond. O. P. 298-309.
    The amended petition filed May 18, 1880, has never been allowed or served. H. D. vol. 2, p. 1182,1,19, 2. .
    The objection to all evidence to sustain any grounds for injunction, whether in the original or amended petitions, being sustained, the objector did not require to take a bill of exception, and did not waive the objection.
    Seoond — The injunction issued without bond, but the original petition set forth no facts sufficient to authorize an injunction under Art. O. P. 739. 1st. The notes are held by a bona fide transferee before maturity and no equitable defense can be set up against him. 18 An. 229; 19 An. 507; 12 An. 126; 20 An. 282. 2d. Fila Roth knew of the agreement between Dardenne and Mrs. Marionneaux. 3d. The purchase being that of succession rights there was no warranty against eviction in any particular thing. C. O. 2513 (2487.)
    Third — The grounds of the original and amended petitions are not sustained by the facts.
    Fourth — Damages are properly allowed. 1st. The injunction was evidently for delay. 2d». The judgment enjoined is a monied judgment and one on which damages should be allowed. 15 An. 328; 3 L. 219; 13 La. 44; 31 An. 678.

      A. & JE. B. Talbot for Defendants and Appellants:
    Amendments to the petition, which do not change the issue are left to the sound discretion of the court, and may he allowed at any stage of the cause to further justice.
    Second — A want of consideration in a contract or note entitles the debtor to an injunction under Art. 739 O. P.
    Third — An amendment to a petition for injunction, though questionable, is allowable for the promotion of justice, when properly sworn to, and setting forth the causes that make it necessary.

      Fourth — An original petition for injunction, alleging gross error in a settlement in which.» ward purchased the interest ot a tutor in an estate on the basis and faith of an account of tutorship as to the assets and condition of said estate, and praying that a seizure on mortgage notes given as the purchase price by the ward may he suspended until an action of nullity of said settlement is determined, may bo amended upon affidavit under Art. 739 O. P. of a want of consideration in said settlement in consequence of tbe debtor of said estate, in a suit against him by the ward, plead a private agreement with the tutor, releasing him from one-half of the assets sold to the ward, and such an amendment praying that no judgment or only a conditional judgment in the injunction suit he rendered until the suit is determined, is admissible for the promotion of justice between the parries.
    Fifth — Gross error, want of consideration, or the pendency of a suit to annul a contract on which mortgage notes were given, are sufficient grounds to enjoin an order of seizure oa said notes as between the parties, or third persons acquiring the notes after maturity.
    Sixth — Damages can he allowed in the decree dissolving an injunction, in only those oases in which the execution of a money judgment has been suspended by the writ. 29 An. p. 634.
    Seventh — As a matter of practice, a hill of exceptions to an amendment to a petition of injunction will be considered, as waived where another amendment, in substance the same, is allowed to be filed without opposition several months afterwards, and no bill of exceptions is reserved to tbe admission of evidence thereon.

      E. T. Florctnce for Executor, on same side:
    First — Where a contract has been made between a tutrix and minor, less than ten days after the rendition of the account and delivery of vouchers, and the jninor was in error of fact as to matters of fact in said contract, that an injunction without security will lie to prevent the enforcement of such contract against such minor. C. 0.361; 15 An. 480; 2 La. 523; O. P. 739, No. 6-40 ; 7 La. 65.
    Second — The ten days referred to in O. C. 361, are exclusive of the dies aquo and the dies ad quem. 12 Eobinson, 421; 6 Eobinson, 17; O. P. 180, 318; 2 Marcadé, p. 270.
    Third — That the pendency of suits whereby the consideration of a sale is put in jeopardy, and whereby a reoonventional demand will arise in compensation of said consideration, authorizes the issuing of an injunction without bond, under C. P. 739, No. 7; 4 La. 293.
    Fourth — Damages cannot he granted in the judgment dissolving a writ of injunction, other than of the execution of a money judgment. 17 La. 266 ; 19 La. 361; 12 Annual, 587.
    Fifth — An order of seizure and sale is not a “money judgment.” 19 La. 361; G. P. 744; lb. 743; 15 Peters S. C. U. S. 167: 16 La. 254; 13 Annual, 25G; 2 Annual, p. 490 ; 3 N. S. 498; Ibid. 655 ; 8 N. S. 96; 19 La. 372; 16 La. 101.
    Sixth — Damages cannot he granted on dissolving injunction of executory process, where no security has been given. 15 La. 101; 19 Annual, 182.
   The opinion of the Court was delivered by

Poché, J.

A statement of the main facts underlying this litigation is necessary to a proper understanding of the issues presented by the pleadings.

By an authentic act, under date of July 31, 1877, which was ratified in another authentic act on the 24th of August, 1877, Mrs. Ella Both, the defendant, purchased from Widow Norbert Marionneaux, her mother and former natural tutrix, all the rights,titles, interest and claims of the latter in the property belonging to the succession of her deceased husband (defendant’s father), accruing to her as surviving partner in community, as usufructuary, or in any manner whatsoever.

In payment of said purchase, the defendant executed three promis.•sory notes, amounting together to $4000, to be secured by mortgage on ■the property which has been seized in this case at the instance of plaintiff, Hodgson, as the holder of said notes, which matured on the 20th of :March of the years 1878,1879 and 1880.

His executory proceedings were enjoined by the defendant, who obtained an injunction without bond, on the following grounds:

1st. That the mortgage and indebtedness on which the order of ^seizure and sale issued were null and void, because they were given to Mrs. Eugenie Marionneaux, her former tutrix, in settlement of the tutor.ship, in less than ten days after rendition of her account and the delivery •of the vouchers.

2d. The account which served as a basis for the notes, was grossly erroneous to petitioner’s prejudice. That she would not have given the notes if she had known of the errors which only came to her knowledge on 26th July, 1878.

3d. That she had instituted a suit against Mrs. Eugenie Marionneaux •.to have annulled said acts on which the executory process issued.

4th. That Hodgson was a holder after maturity.

6th. That said notes and mortgage were obtained from her unlawfully, and Hodgson was aware of the fact when he acquired the notes.

Subsequently, after her death, her executor having been made a party, filed a supplemental petition of injunction, alleging want of con.sideration of the notes sued on, on the ground that among the items of property transferred to defendant, were seven notes of J. A. Dardenne, .amounting together to $9000, represented as community property between her deceased father and her mother, and that suit having been .brought against Dardenne on said notes, the latter had set up as defence, .a reduction of the same by agreement between defendant’s mother and himself ; thus reducing the value of the property transferred to her, and making part of the consideration of the notes executed by her in favor of her mother.

Plaintiff objected to the filing of this amended petition, on the ground that the averments therein set forth would not entitle the petitioner to . an injunction without bond, and reserved a bill of exception to the ruling of the judge in allowing the petition to be filed.

The case was tried on the merits by a different judge, who had suc- • ceeded the judge who had overruled plaintiff’s- objection, and the latter judge, considering the ruling of his predecessor as erroneous, refused to consider the amended petition; and on the merits dissolved the injunction, with damages.

As we understand the case, the appeal taken by defendant presents . for solution the following questions:

1st. Whether the last judge in the lower court erred in refusing to consider her amended petition for injunction.

2d. Whether her injunction was properly granted without bond.

3d. Whether the judge erred in dissolving the injunction on its merits.

4th. Whether damages were properly allowed in dissolving an injunction in a case of executory process.

Eirst — Under Arts. 739 and 740 of our Code of Practice, the defendant in executory process can arrest the proceeding without bond, by alleging some of the following reasons: 1st. That he has paid the debt for which he is sued; 2d. That he has been remitted by the creditor; 3d. That it has been extinguished by transaction, novation, or some other legal manner; 4th. That time has been granted to him for paying the debt, although this circumstance be not mentioned in the contract; 5th. That the act containing the privilege or mortgage is forged; 6th. That it was obtained by fraud, violence, fear, or some other unlawful means; 7th. That he has a liquidated account to plead in compensation of the debt claimed; 8th. And, finally, that the action for the recovery of the debt is barred by prescription.

Defendant’s counsel contend that the averments of the amended petition are covered by the third reason enumerated in the article under consideration, but we cannot sanction their reasoning.

Their averment means that the obligation was null ab initio, for reason of the want of consideration, or, in other words, that it never has had legal existence. If that be the case, counsel have failed to inform us how an obligation which has never sprung into existence can be extinguished. Destruction presupposes existence or being. It is impossible to destroy or extinguish nothing.

The most liberal construction of the article fails to show under which of its eight wings the averments of defendant’s amended petition could be sheltered, and forces the conclusion that the supplemental petition should have been excluded, and that the judge who tried the case did not ■err in refusing to consider the reasons therein advanced.

Second — -A careful examination of the five grounds of injunction averred in the original petition, fails to satisfy us that any one of them is covered by the provisions of the article providing an injunction without bond.

Oounsel for defendants seem to lose sight of the very material difference between a ground sufficient to maintain an injunction of an executory process in general, and the averments which can, in the exceptional cases enumerated in the Code, justify the issuance of an injunction without bond.

Admitting, for the sake of argument, that the account which served as a basis of the contract between the defendant and her mother, was grossly erroneous to the daughter’s prejudice, that she has instituted a suit for the nullity of the contract, that Hodgson acquired the notes after maturity, we' fail to perceive by what process of reasoning any of these averments can be assimilated to any of the eight reasons enumerated in the article of the Code.

If the fifth ground, charging that the notes and mortgage had been obtained from her unlawfully, had been more specific, so as to allow the introduction of evidence as to the illegal means resorted to, that ground would have approached the sixth reason contained in the article, but in its vagueness it was not susceptible of proof, and was properly considered as not complying with Art. 739.

Plaintiff’s counsel properly objected to the introduction of any testimony in support of allegations, other than those containing any of the reasons enumerated in Art. 739.

As a doubt might exist touching the first ground in defendant’s petition for injunction, wherein she charges the nullity of the contract with her mother, for the reason that said contract was executed in less than ten days after rendition of her account and the delivery of the vouchers, we have considered this ground as a probably sufficient averment under the sixth ground of Art. 739, and have, therefore, examined the evidence on that point.

The account was presented and the vouchers were delivered on the 14th of August, and the authentic act of ratification was executed on the 24th of the same month. Defendant’s counsel contend that the day on which the receipt was given and the day on which the contract was executed, should no.t have been counted in the computation of the ten days, contemplated by Art. 361 of the Oivil Code; and he relies upon several decisions of the Supreme Oourt expounding Arts. 180 and 318 of the Ooda of Practice.

The article of the Oivil Code strikes with nullity all agreements entered into between minors, arriving at the age of majority, and their tutors, unless the same are preceded by an account rendered and vouchers delivered, “ the whole being made to appear by the receipt of the person to whom the account was rendered ten days previous to the agreement.”

The articles of the Code of Practice relied upon have reference to the delay granted for the performance of certain judicial acts, Art. 318 containing the following language: “ In the delay given to the defendant for answering, Sunday is included like other days, but in all cases where delay is given either to do something orto answer, neither the day of serving the notice, nor that on which the act is to he done, or the answer to he filed, are included.”

The mere reading of the articles affords an easy solution of the ■difficulty suggested by counsel, and shows that the question raised is not a legal but a mere arithmetical proposition.

To ascertain whether an event which occurred on the 14th of a month happened ten days previous to an occurrence happening on the 24th of the same month, does not, in our opinion, require a recourse to the Code of Practice or its provisions for the computation of days in ■special cases provided for.

The article of the Civil Code does not provide that the day on which the receipt is given and the day on which the agreement is entered into are not to be included in the ten days contemplated, and we cannot legislate the rule to suit this 'case. The evidence, therefore, fails to sustain ■that element of nullity relied upon by defendant.

In conclusion, we think that the judge a quo did not err in ruling ■out an amended petition, the grounds of which were not covered by Art. 739, and in refusing to consider any testimony to sustain allegations, under which no injunction could be legally issued without bond: Williamson vs. Richardson, 30 An. 1164; Berens vs. Exs. of Boutté, 31 An. 112; and his judgment dissolving the injunction has our unqualified sanction.

Fourth — But he erred in allowing damages. The vexed question, as to whether damages could be allowed by the same judgment dissolving •an injunction in the case of an executory process, was recently reviewed •at length by this Court, and finally settled in the case of Testard vs. Belot, recently decided by us on rehearing; in which we held that in such cases the provisions of the act of 1831, embodied in Art. 304, Code of Practice, did not apply. Hence, we must amend the judgment of the lower court in this particular.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to reject the claim for damages on the dissolution of the injunction, which damages are hereby refused, and that, as thus amended, said judgment be affirmed; appellee paying the costs of this appeal.