author: -Poems, J.

text:
    Nos. 8575 and 8608.
    Succession of Fanny V. Gillaspie. Wm. M. Gillaspie, Adm’r, vs. The Citizens’ Bank of Louisiana.
    An action for rents and revenues of immovable property against an evicted possessor i.s barred by tbe prescription of one year, if tbe party evicted shows that he was a possessor in good faith.
    Such an action can be maintained against the possessor only, and for the time of his occupancy.'
    It ceases against the first possessor from the time of his transfer to another party.
    APPEAL from, the Civil District Court for the Parish of Orleans; Tissot, J. - .

      JEgan <& MoPnery for Plaintiff and Appellee.

      Armand Pitot for Defendant and Appellant.
   The opinion of the Court was delivered by ■

-Poems, J.

Under a foreclosure of mortgage instituted by the Citizens’ Bank, a plantation owned by Harrison Jordan, William T. Jordan, and Fanny V. Gillaspie, was adjudicated to the Bank in February, 1872, and in May, 1875, the same plantation was sold by the Bank to Mrs. E. F. Jordan, wife of William T. Jordan.

In August, 1876, W. M. Gillaspie, as guardian of the minor children of Fanny V. Gillaspie, instituted a suit for the nullity of the sale of February, 1872, and by judgment of this Court rendered in July, 1878, said sale was annulled and set aside, on the ground that in the executory process of the Bank, two of the joint owners of the property seized had not been made parties to the suit. 30 An. 1315.

The present controversy, presents the claim of the minor heirs of Mrs. Gillaspie against the Bank for one-third of the fruits and rents of the. plantation, from the 2d February, 1872, to the 5th of August, 1880, when the plantation was finally sold under a new suit brought by the. Citizens’ Bank against its original debtors. 32 An. 767.

For defense the Bank denied its liability for such rent, and pleaded in compensation the sum of $6,500 due by Mrs. Gillaspie as the unpaid balance of her stock and loan mortgage, and the Bank also pleaded said sum in reconvention.

Separate judgments were rendered by the District Court; one of. which overruled the plea in reconvention ; the other overruled the plea., of compensation, and allowed plaintiff’s demand in the sum of $8,500 and legal interest. •

Defendant has appealed from both judgments, and by consent the two-appeals have been consolidated and are to be tried together.

On appeal the Bank pleads the prescription of one, three and ten years. That plea must be the first subject of our investigation. The prescription of three years has no application to the nature of the demand. As the present suit was filed on July 16, 1881, and the possession of the Bank commenced in February, 1872, the prescription of ten years is equally unavailing. But the plea of prescription of one year is well taken and must be sustained.

In the case of Gillaspie vs. Citizens’ Bank, 30 An. 1315, a demand had been made by plaintiff for the fruits and rent of tlieplantation, and was rejected on the ground that such demand could not be made by the heirs, but the decree specially recognized the right of such demand in the succession of Mrs. Fanny Y. G-illaspie against “ the Citizens’ Bank, and William T. Jordan, and Mrs. Elizabeth F. Hamson, wife of William T. Jordan,” during their respective occupancy of the same.

This Court reserved the same right to the succession, in the decree rendered in the injunction suit, reported in 32 An. 767.

The right reserved was purposely restricted to be exercised against the possessor, and it thus was made to conform with the familiar rule of our jurisprudence. The possessor alone can be held liable to account for rents and revenues.

Now, as the record shows that under its sale to Mrs. Jordan, the Bank ceased to be the possessor of the property on the 5th of May, 1875, it follows, that it could owe no rent after that time. Hence, the right to demand rent and revenue by the plaintiffs against the Bank must be restricted, both according to law and to the decrees of this Court, to the time intervening between the 2d of February, 1872, and the 5th of May, 1875.

The next inquiry must be directed to the source or cause of action, with a view to ascertain whether it arises ex contractu dr ex delicto.

A mere inspection of the record, and of tlie forégoing statement of facts, shows at once that the pleadings do not even purport to disclose or to declare upon a contract; nor can it be demonstrated that the cause,of action can be connected with a quasi contract.

If liable at all for rent, the Bank is responsible, because it illegally dispossessed the plaintiff, and because it held the property under an illegal or void title. This is an action in the nature of a demand of damages caused to the real owner by and through an unlawful proceeding, resulting in an illegal expropriation and an unwarranted possession.

Hence, the act of the Bank complained of, and made the basis of plaintiff’s demand, is manifestly a quasi offense.

His right of action is therefore amenable to the provisions of Article 3536 of our Civil Code, which bars an action for á quasi offense by the prescription of one year.

This feature of the case is almost identical with the principles involved in the case of DeLizardi vs. The N. O. Canal Bank, 25 An. 414; see also 9 An. 490, Anty vs. Adíe, and authorities therein cited.

In the case of City of New Orleans vs. Southern Bank, this Court said on good authority: the distinction between damages ex delieto and ex contractu is, that the latter ensue from the breach of a special obligation, and the former from the violation of a general duty.”

It is clear that the plaintiff in this ease can invoke no breach of a special obligation towards his wife by the Bank.

The record shows that the Bank acquired the property, and its possession by virtue of an act sufficient in terms to transfer property; and that the defects of its title were not made known to it, before the institution of the suit in nullity on the 15th of August, 1876, and that at that time the Bank had parted with the title and with the possession of the property which it had sold to Mrs. Jordan in May of the previous year.

It therefore follows, that during the whole time of its possession the Bank was a possessor in good faith. C. C. Arts. 503, 3452.

Hence, it cannot be amenable to the ruling in the ease of Walling vs. Merafield, 33 An. 1178, where it was held, that the possessor in bad faith, cannot be shielded by the prescription of three years from an action for rent and revenues of property from which he is evicted.

The judgments appealed from are therefore reversed; and it is now ordered that the plea of prescription of one year be sustained as a bar to plaintiff’s action, which is rejected at his costs in both Courts.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8618.
    The State of ex rel. John Klein & Co. et al. vs. The City of New Orleans et al.
    Neither the District Court;, nor this Court, has jurisdiction to issue a mandamus, toamunicipal officer of the City of New Orleans, for the purpose of drawing money from the municipal treasury.
    Section 1 of Act 5 of 1870 is an absolute prohibition and must be respected.
    It applies to all persons and to all claims, whether liquidated or not by judgment or otherwise.
    It does not deprive creditors of other process.
    A mandamus may issue at the instance of judgment creditors, under other Sections of the Act, for other purposes. It does not lie for the object of this proceeding.
    APPEAL from the Civil District Court for the Parish of Orleans.

      Blanc & Butler for the Relators, Appellants.

      Chas. F. Bucle, City Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application by.judgment creditors of the City for a mandamus to compel the payment of their recorded judgments, out of funds collected, said to have been appropriated, set apart and deposited in the municipal treasury for the purpose of paying such judgments. The prayer .is, that a mandamus issue; to the administrator of public accounts of the City of New Orleans, commanding and directing him to warrant on the administrator of finance of said City in favor of relators for the amounts of their judgments in capital, interest and costs, etc. The City was made a party.

The. City and the administrator returned, pleading exceptions and other matters of defense.

From a judgment against them the relators have appealed.

One of the exceptions pleaded by the City is, “ that the proceeding attempted for mandamus is prohibited by Act No. 5, of 1870, E. S.rt

In the case of State ex rel. Strauss, 30 An. 81, it was urged that this Act was intended to apply to unliquidated contested claims, and not to' those admitted to be due and owing.

The Court, after giving in full the text of the first Section of Act, answers the objection saying, that the Act makes no such distinction, and that judgment creditors are not permitted to resort to the summary process.

Again, in the case of State ex rel. Fernandez vs. Houston, Judge, 34 An. 875, that view of th« law was confirmed. The proceeding below was also by a judgment creditor of the City, asking the aid of the District Court by mandamus, to compel the administrator of public accounts to issue to him a warrant for the amount due him. Application having been made to this Court for a prohibition to prevent the District Judge from,taking cognizance of the matter over which he had no j urisdiction whatever, this Court granted the relief, saying that it was the intention of the legislature, not only to deprive all persons of that remedy, but to prohibit all courts from even entertaining any application for it in the cases provided for. .

The law is prohibitory in character, and is couched in negative terms. It is such that not only the lower, but this Court also, are deprived of jurisdiction over the matter in the form presented. For-, mal consent could not, in the teeth of the law, confer a jurisdiction which the statute says shall not vest.

While ruling as we do, that no court has jurisdiction to issue a mandamus under Section 1, of Act 5 of 1870, to draw money from the City Treasury, we are not to be understood as saying that a mandamus cannot be allowed under other Sections of that law, or to compel municipal authorities to do other acts, or under other laws, to levy a tax in. proper cases; or, municipal officers to perform ministerial duties.

■ Regarding • the. judgment appealed from as one which does not deprive the relators of the right of asserting their claim in another form, we do not disturb it. •

It is, therefore, affirmed with costs.

Rehearing refused.


text:
    No. 8872.
    John A. Bajourin vs. D. S. Ramelli.
    The decree of a court accepting a surrender and ordering a meeting of creditors, cannot be attacked collaterally by tbe party who provoked it, in the absence of nullities apparent on the face of the proceedings.
    The appointment of a syndic, who has qualified, is subject to the same rule.
    Proceeds in the hands of a sheriff, resulting from the sale of property of the insolvent, form part of his assets, and must be turned over to the syndic of his creditors tor distribution among them in concursu.

    A judgment directing the delivery of such proceeds for such distribution does not strip the the suing creditor of his rights, if any, thereto, which he will be at liberty to assert when an account shall be presented for a repartition of funds.
    APPEAL from the Civil District Court for tbe Parish of Orleans. JBamrus, J.

      JB. B. Forman for Plaintiff and Appellant.

      A. Goldthwaiie and Ohas. 8. Bice for Defendant and Appfellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an appeal by the plaintiff from a decree directing the sheriff to pay over to the syndic of defendant’s creditors, the amount realized under the judgment in the ease, and which is ordered to be distributed in due course of administration.

The proceeding was by rule of the syndic on the plaintiff and the sheriff, to show cause why the proceeds should not be paid over to him.

The answer contains, first, a general denial, next, 'a special denial of the capacity of plaintiff in rule, of the cession in insolvency, and last, an averment that the money in the sheriff’s hands was paid by the defendant. ' '■

The-reeords hows that Ratnelli applied for a respite ¡ that on his- failing to give bond and security, as demanded by the plaintiff, who had opposed the granting of the respite, he himself procured an order accepting his surrender and convoking his creditors 5 that Hart was appointed syndic and qualified as such.

That order and that appointment have never been revoked. To all intents and purposes, so far they remain in full force and effect. They cannot be attacked collaterally, as they are not nullities on the face of the proceedings.

Under the circumstances, the syndic had aright to demand payment to him of the proceeds of a sale made of property of the insolvent, and which had not yet been delivered to the suing creditor. 14 An. 438.

The judgment appealed from does not purport to strip the plaintiff of his rights, if any, which he may have to those proceeds in whole or in part. They are reserved to him. He will be at liberty to assert them when an account shall be presented by the syndic.

We do not feel what force exists in the last ground of resistance in the answer. If the money in the hands of the sheriff was paid by the defendant in writ, it forms as much part of his assets as if it had been deposited in bank, and the property apparently sold, if within reach,might increase those assets.

We find no error in the judgment appealed from, and it is affirmed with costs.


text:
    No. 8862.
    The New Orleans City Railroad Company vs. G. & J. McCloskey.
    Tbe evaluation of damages which would be sustained, in the event of the commission of a certain act, to prevent Which an injunction is sought, is the evaluation of the right, the invasion of which is feared and whic|i is the matter in dispute.
    The value of the right of possession, use and enjoyment claimed in this case, being stated as exceeding one thousand dollars, this Court has jurisdiction of the suit.
    A. tenant, like the owner of enclaved property, has a right of way of ingress and egress to and from the spot leased.
    An injunction does not lie to prevent the lessee from using a wagon for the conveyance of his goods and effects, where it is shown that such use is almost indispensable and does not prove injurious to the lessor or of others having a right otherwise to complain.
    The case would be different should the lessee misuse or abuse the privilege.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot. J.

      Brcsughn, Buck & Dinkelspiel for Plaintiff and Appellant.

      A. J. Murphy and B. McCloskey for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The pith of the petition for an injunction in this case is, that the plaintiff is entitled to the exercise of certain rights, consisting in the possession, use and enjoyment of a certain pavilion and platform around it, at the Lake End, leased from the city, and that if defendants are allowed to drive their wagons across the' same, the Company will sustain damages exceeding one thousand dollars.

The injunction was granted, and after trial was dissolved. From the judgment thus rendered an appeal was taken.

' Tlie defendants move to dismiss it because we have no jurisdiction over the cause, the matter in dispute not exceeding one thousand dollars.

It does not appear on the face of the petition that the rights claimed by the plaintiff are frivolous, or without some foundation.

The suit is brought by a corporation. The allegations are. sworn to by the President of the Company. The proceedings are presumed to have been instituted with the authority of the board of directors.

The gravamen of the complaint is, that the exerise of a right of possession, use and enjoyment, which is valued at more than one thousand dollars, has been and is threatened to be interfered with illegally, and that the disturbance will entail damages in excess of that sum.

The value of the right of possession which is the matter in dispute, being clearly stated at more than the amount over which this Court has jurisdiction, it follows that the controversy is rightfully before it. 22 An. 272.

The motion to dismiss is refused.

On the Merits.

This is an injunction suit brought to prevent the defendants from driving their wagon across a platform, erected by plaintiff at West End on the lake shore near the city, to a certain pavilion put upon the platform and leased by the plaintiff to the defendants, for the purpose of keeping therein stands and other conveniences for the sale of soda water, mead, mineral waters and confectionery articles.

The complaint was that the defendants were making a wrongful and illegal use of the platform by driving thereon with their wagon, injuring the platform intrinsically and putting it in an improper condition.

The answer is substantially, that the defendants have a right of way to and from the pavilion j that for their purposes they need and are entitled to the use of a wagon; that they have used that right discreetly, in no manner injurious to plaintiff’s property or rights. They deny having put said platform in a filthy condition and aver that, on the contrary, they have maintained it in a clear and proper order.

From a judgment in favor of the defendants, and dissolving the injunction, the plaintiff appealed.

The evidence establishes the lease and the destination to which the building was to be put; also that the pavilion is situated at a distance of some two hundred and thirty feet from the edge of the road, and that there is no way of getting to it, unless across the platform. It appears that the platform, which is extensive, is of unusual solidity and strength, and is used by the Company itself for the purpose of carrying heavy cart loads; that there is on it a carousal or flying-horse arrangement, moved by horse power; that the platform resists most successfully the weight of thousands of persons walking or sitting upon it; that no damage has been done by the defendants’ wagon to it; that they have always used it at seasonable hours for the necessary time for loading andunloading, incommodingor disturbingno onein the exercise of any right, and have never put it or allowed it to remain in an offensive condition, and that the use of a wagon is indispensable to them to carry their goods to and from the pavilion.

It is shown also, that the portion of the platform over which defendants drive their wagon, consists of the extreme edge of the same, made a passage way of some twenty-five feet, and is not occupied by visitors or used for any other special purpose.

The right of the defendants to a necessary and moderate use of the platform to reach the pavilion is indisputable. The consequent right of using a wagon as the fit and appropriate means of’transportation of their goods is undeniable. Under the lease made to them by plaintiff, they are entitled to a quasi ownership of the property rented, and are protected by the provisions of Article 702 of the R. O. C., which declares : “that a passage must be furnished to the owner of the land surrounded by other lands, not only for himself and workmen, but for his animals, carts, instruments of agriculture and everything which may be necessary for the use and working of the laud.”

Had the plaintiff substantiated the grave charges which it has averred against the defendants, quite a different case would have been presented, but it has failed to do so. R. C. C. 2710.

The equitable remedy of injunction still remains to it, for protection against any unwarranted and injurious infraction of the rights which it certainly has to a proper use of the right of way, by the defendants, across the platform in question.

We find no error in the judgment appealed from, which is affirmed with costs.


author: Todd, J. Fenner, J.

text:
    No. 8398.
    The Union National Bank vs. George Legendre et als.
    On Motion to Dismiss.
    The order of Appeal making it returnable “ on the — day of November, 1881,” the appellant appeared in the Court a qua on the 15th of that month and, suggesting the omission asked that it be supplied, and that th©21st of November, 1881, be named as the return day. It was so done by the District Judge, and the appellant filed the Transcript in this Court on said 15th of November. Held, that the fault was not attributable to the appellant; that the Transcript was filed in good time, and that no citation on appellees was necessary in the premises.
    On The Merits.
    "When two bonded employees of abauk are parties to a joint trespass, resulting in a loss to the Bank, thereby violating the conditions of their respective bonds, three groups of solidary obligations arise, viz; those of each employee and his respective sureties, and that of the two co-trespassers with regard to each other. But the members of these respective groups are not bound in solido inter sese beyond the limits of their own group.
    "Where the relations above indicated result from the facts set forth in the petition, the allegations of solidary liability will be construed with reference thereto.
    The discharge of the sureties on one bond would nut operate the discharge of the principal or sureties on the other bond.
    Payment of the loss by the principal or sureties on oue bon d would not entitle them to subrogation to the rights of the Bank against the sureties on the other bond.
    What rights payment by tbe principal or sureties on one bond might give them against the principal on the other, as a co-trespasser, need not bo determined, because said principal does not appear to have been discharged. The discharge of his sureties, although bound in solido, did not discharge such principal.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. Tissot, J.

      Percy Roberts for Plaintiff and Appellant:
    1. Any number of causes of action may be cumulated in a single suit, provided they are not contradictory or inconsistent.
    2. Where the causes of action set up in a suit are inconsistent, the only remedy of the defendant is to except, and compel tlie plaintiff to elect which cause of action he will rest on. The defendant cannot elect. C.P. Art. 152; 7N.S.403; 5L.440; 14 L.277; 28 An. 312.
    3. A trespasser has no recourse on his co-trespasser for a repetition of money paid by him on account of his participation in a wrong. Tbe Courts of Louisiana will not lend their aid to enforce any obligation, however equitable as between the parties, which is tainted with immorality. 3 M. 285; 3 N. S. 47; 2 B. 271; 1 An. 69; 17 L. 131; 1 An. 176 ; 3 An. 203; 12 An. 166; C. C. 1891, 1892; 9 B. 436; 5 B. 101; 8 An. 468; 10 An. 199; 13 An. 401 ; 21 An. 110; 23 An. 517; 27 An. 294 ; 7 Wallace, 542.
    4. The recourse which is recoguized by the Drench authors, against a co-trespasser, is a purely personal one, which does not found on subrogation to the creditor’s rights, and does not embrace the sureties of the co-trespasser.
    5. In order that a payment made by one person to a creditor shall legally subrogate him to the creditor’s rights against any other person, it must appear that he was, at the mom enfc of payment, hound “with” or “for” that other, for the same debt. And for two persons to owe the same debt, arising ex contractu, and be bound “with” or “for” each other, privity of contract and identity of obligation are absolutely necessary. Demelombe, Contracts, Tol. 4, § 595, et seq.j 2 An. 942 ; 3 An. 66, 205, 540; 26 An. 447 ; 5 B. 204.

      6. The only causes of debts are contracts, quasi contracts, offenses, quasi offenses, and operation of law. Only a man’s own act can create an obligation against him. The act of no other binds him, unless that other be his agont.
    7. Where the debt which is paid by a debtor in solido, concerns only his co-debtor, he is subrogated to the creditor's rights against the creditor as the latter’s surety. C. C. 2106; 15 An. 595.
    8. Ho one can olaim indemnity for a loss which he has brought on himself by his own fault.

      St. M. Bérauli, B. D. White and Geo. I. Bright for Defendants and Appellees :
    J. The counsel for the plaintiff labors to show that his action is one ex contractu, not ex delicto.

    Reply. It is unnecessary to give it a name. It is not necessary that it should he one or the other. Suoh actions partake so much of both, that they can bo instituted on the state- - ment of faots from which the action arises.
    Cooley on Torts, p. 90, says: “ Indeed, in many oases, an action as for a tort, or an action as for a breaoh of contract, may be brought by the same party on the same state of facts.”
    We relieve the plaintiff from the necessity of determining whether his action is ex contractu or ex delicto.

    Our defense is,'that he has destroyed his oause of action, by the allegation that he has can-celled the bond of Morris and released his securities.
    He labors to show that Legendre, the sureties of Legendre, Morris, and the securities of Morris, are not liable m solido.

    Reply. Solidarity arises from contract, and the plaintiff has alleged, in his petition, that they r wore hie debtors vn solido. 2Tor the purpose of this exception, the allegations of the petition must be taken as true. We quote from his petition, “for which said sum said Morris and the sureties on his bond, as said paying teller, and said George Legendre, and the sureties on his bond, as bookkeeper and clerk, aforesaid, became justly liable to yourpetitioners in solido.”
    The plaintiff is irremediably boand by that allegation, which makes all the parties his debtors in solido.

    We say he has destroyed his oause of action by the allegation, “ that two of the sureties on the said bond of said Morris, to-wit: John B. Couret and Samuel Boyd, paid to petitioner $10,000 of the said $15,000, in order to effect their release and discharge as sureties on said, bond.” Having first alleged that all the parties were his debtors in solido, he now says that he has discharged two of them.
    What is the effect of discharging two of them ? We answer, the discharge of all.
    The petition shows, that the debt is the whole debt of Morris, as between the parties. It does not show that when the plaintiff discharged two, .he made any reservation of right against the others.
    O. 0.2203. The remission or conventional discharge, in favor of one of the oo-debtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
    In Irwin vs. Scribner, 15 An. 583, the Court held: Those who commit torts, or assist or encourage others in so doing, are bound in solido for the damage occasioned by the trespass; the release of one of several debtors in solido, in an obligation arising from a trespass, operates the extinguishment of the debt as to tbe remaining co-debtors, unless the creditor has expressly reserved his right against the other debtors i/n solido. The same thing was held in Lynch vs. Leathers, 17 An. 118; Baldwin vs. Gray, 4. H. S. 192.
    “ La remise que le créancier fait pour éteindre la detfce en total alora méme qu’elle n’a été faite qu’a l’nn des debiteurs les libére fcous.” 4 Marc. p. 475, Art. 1808.
    But suppose the plaintiff wishes to withdraw the allegation of solidarity made in his petition, which we think ho cannot do, forhealleges that the parties bound themselves to him in solido. Then we say Morris and Legendre were liable, in solido, for the money, for a tort. Morris took the money, and Legendre concealed the fact from the Bank. As between Morris and Legendre, because the affairs for which the debt had been contracted, in solido, concerned only Morris; he, Morris, is liable for the whole debt towards Legendre. Legendre is to be considered only as his surety. C. C. 2106.
    We have said that Legendre and Morris were liable to the Bank in solido. These defendants were the sureties of Legendre, to seoure the debt which was primarily that of Morris, and as is alleged in the petition, concerned only Morris, for he alone is alleged to have taken the money. The Bank had the bond of Monis, ample and sufficient security. "We contend, and we contend for this, without any reference to the law of legal subrogation, that inasmuch as the Bank has made its loss a voluntary loss, and has cancelled the securities that it held for the debt, it cannot proceed either against Legendre or his sureties. Suppose the Bank had had §20,000 instead of the bond, could the Bank surrender them to . Morris and his sureties, and then proceed against Legendre and his sureties?
    The Bank, in the petition, says tliedebt is wholly that of Morris; that Morris took the money ; that Legendre took no part of it; his liability is claimed because he concealed the fact from the Bank.
    Story Eq. Jur. § 499,says: The general principle that the surety, upon payment of the debt, is entitled to be subrogated to all the rights of the creditor is extensively discussed, and fully maintained by the Hew York Court of Appeals. This was where the creditor held a chattel mortage as collateral security, for a debt for the payment of which the plaintiff stood as seourity, and after paying the debt, the court held he was entitled to stand in the place of the creditor in all respects, as to the chattel mortgage, aud enforce it to the same extent, and in the same mode he might have done. * * Each surety is entitled to the benefit of all tho securities held, either by the creditor, or by the other sureties. § 500: Upon this subject, a far more liberal and comprehensive doctrine pervades the Homan law. Hot only is the surety by that law entitled, in such ease, to the benefit of all collateral securities taken by the creditor, but he is also entitled to he substituted as to the very debt itself, to the creditor, by way of cession or assignment. And upon suob cession or assignment, upon payment of the debt by the security, the debt is in favor of the surety, treated not so much, as paid, as sold; not as extinguished, but as transferred, with all its original obligatory force against the principal. § 502: The same doctrine has been in some measure transfused into the English law in an analogous form, not indeed, by requiring an assignment or cession of the debt to be made; but by putting the surety paying the debt, under some cireumstanees in the place of the creditor. And if the creditor should knowingly have done any act to deprive the surety of this benefit, the surety, as against Mm, would be entitled by tbe same equity as if the act had not been done.
    In Henegar vs. Thompson, 1 Lea. Tenn. 457, it was held, if a creditor has taken a mortgage from the principal debtor, sufficient to secure the debt, makes an agreement to abandon the mortgage, the surety is discharged and may make defense at law.
    In Darby and Tremoulet vs. Fusilier, 21 An. 636, the Court held, the failure of the merchants to exact payment for their advances, when they had funds sufficient on hand from the proceeds of the crop, discharged the mortgage given by a third person to seoure the advances.
    In Hill <fc Co. vs. Bourcier, 29 An. 844, the Court held, if any of the securities by which the debt is secured, are lost by the fault of the creditor, tho surety is discharged to the extent of their value.
    2 An. 428, Saulefc vs. Trepagnier: a surety is entitled to the benefit of all tho securities in the hands of the creditor, and if any of them be lost by his wilful neglect or want of due diligence, the surety is, to that extent, discharged.
    5 Bob. 213, Penn vs. Collins, where the lessors of property, having sued the lessees for the rent due, and to become due, under the contract, and caused property, on which they had the lessor’s privilege, to be seized to an amount equal to tho rent due, and to become due, abandon the seizure without a trial, the securities of the lessees will he discharged.

      Price vs. Trasdell, 28 N. J. Eq. 200; U. S. Dig'. N\ S Vol 9, p. 613: We take the rule to be, that when two persons are bound to a third for the same debt, a right of subrogation thereto, and of recourse for the amount paid, upon his co-obligor, auv contract between the creditor and the ultimate debtor, whereby delay is granted, or securities surrendered or diminished, will discharge the obligor entitled to such recourse and subrogation, if his consent he not obtained. The creditor in such case must maintain a position which will enable him to subrogate the party paying to all the original lights, privileges and actions incident to the debt. See also, 1 Rob. 301 ; 9 An. 497; Bayley on Bills, 357; Story on Notes, No. 544 ; 3 R, 299; Gray & Co. vs. Blanchard, 32 An. 497.
    Freoner vs. Tangling, 37 Hd. 491; 4 D. S. Dig. N. S. p. 564, No. 43: The surety may be exonerated from liability to the extent to which he is prejudiced by the positive act of the creditor in parting with legal or equitable securities which the latter might have held for the benefit and protection of the surety, although he may not have known of the existence of the securities held by the creditor or though they may have been taken subsequently to the date of the contract of suretyship.
    Boyd vs. McDonough, 39 How. N. Y. Pr. Rep. p. 389: The right of subrogation is recognized by courts of law, as well as courts of equity, and any act impairing or interfering with it, which would release the surety from liability in equity, will also relieve him in law.
    Succession of Daigle, 15 An. 594: Where two parties purchased together certain landed property, each one undivided half, and furnished for the price their joint and several promissory notes, secured by mortgage on the land purchased. Held, that these parties must he considered as purchasers and principal obligors, each for one-half only of the property purchased, and as sureties for each other mutually as to the other half; and that, consequently, the purchase of one-half by the original vendor, from one of these purchasers, releases the remaining purchaser from his obligation as surety, as it renders impossible that subrogation to which he would be entitled under Articles 2157 and 3030, O- O.
    Gruild vs. Butler, 127 Mass. 386; XIU. S. Dig. p. 716: A surety is entitled in equity to the benefit of any collateral security received by the creditor from the principal debtor; and if the creditor, knowing the relation between the debtors, surrenders part of such security without the consent of the surety, the surety is exonerated to the amount surrendered.
    The proof that the Bank cancelled the security it held for the debt is to be found in the petition, which alleges that on or about the 17th of May, 1882, two of the sureties ou said bond of said Morris, to-wit: John B. Couret and Samuel Boyd, paid to petitioner §10,000 of the said §15,000, in order to effect their release and discharge as sureties on said bond, thus leaving a balance of §5,000, still due and unpaid of said §15,000.
    And in the further allegation in the petition, that the Bank released the sureties of Morris on a previous bond, which sureties the Bank alleges were liable for the debt.
    We respectfully submit we have shown:
    1. That the remission or conventional discharge in favor of one of the co-debtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the others.
    2. That a surety is entitled to all the securities that the creditor held for the debt, and if he destroys any, the surety is relieved to the extent of the security destroyed.
    3. That the loss of the Bank is a voluntary loss, and the Bank can have no action for it.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion to dismiss is on the following grounds :

1. That it does not appear that any order granting an appeal was entered on the minutes of the court.”

It does not so appear in the original record, but by means of a certiorari the record was corrected, and it now appears that the entry was properly and seasonably made.

2. “ That the defendant had abandoned his appeal by not filing his transcript in this Court within three judicial days from the 1st Monday of November.”

The judgment appealed from was rendered in the District Court on the 1st of Julj-, 1881. On the next day, plaintiff and appellant moved for an appeal, and on the same day an order of appeal was rendered and the appeal bond filed. By this order the appeal was made returnable on the— day of November, 1881, the day not being fixed in the order by the Judge granting it.

The transcript was not filed in this Court on the 1st of November, nor within three judicial days thereafter, but on the fifteenth of that month, the plaintiff and appellant appeared in the court a qua, and suggesting that the order was defective on account of this omission, the Judge supplied the omission and named the 21st day of November as the return day, and the record was filed in this Court the same day the correction was made, (the 15th November, 1881).

We think this was sufficient. This precise question arose in the case of Laicher vs. The N. O. & J. R. R., 28 An. 320, from which we quote as follows:

“ The plaintiff moves to dismiss the appeal because the transcript was not filed in this Court within three judicial days from the return day.

It appears that on the 30th of December, 1872, the defendant filed a petition for an appeal, and the Judge, in granting the order, omitted to fix the return day. Subsequently, to-wit: on the 8th of March, 1873, he made an order fixing the return day on the 3d Monday of March, 1873, at which time the transcript was filed in this Court.

“The fault is not attributable to the appellant. It was an error of the Judge, and the appeal cannot be dismissed on account thereof.”

This decision accords with the spirit of the Act of 1839, under the liberal policy of which an appellant was relieved of all irregularities in the proceedings relating- to the appeal, not attributable to his fault, and has prompted the Courts, in all cases of doubt on this point, to give to the appellant the benefit of such doubt. It may be that this principle has been extended so far that, as argued by the appellee’s counsel, had the transcript been filed in this Court on or before the return day, with the omission as to the return day unsupplied, the appeal would not have been dismissed. But it by no means follows from this, that the appellant, failing to take such risk, prefers to have the correction made, and files his transcript in this Court on or before tl'ie day actually named and fixed by the Judge, loses his right to appeal. Whatever may be the irregularity of the proceeding, the primary cause of it was the fault or omission of the Judge, for which the appellant should not be punished.

3. “-That the appellants have not been cited to answer the appeal.” The order of appeal was rendered in open court, and when an appeal is thus taken, no citation is necessary. The subsequent order, fixing the day was not a new order of appeal, but merely a correction of the previous order, a perfecting of an existing appeal, and no citation was required. This distinguishes this case from that of Fournet vs. Yan Wickle, cited, which merely determined that an appeal taken in open court, defective because the amount of the bond was not fixed by the Judge, could not be perfected by an order rendered in chambers, on the petition of the appellant.

For these reasons the motion to dismiss is denied.

On the Merits.

The opinion of the Court was delivered by

Fenner, J.

This appeal being taken from a judgment sustaining an exception of no cause of action, it is necessary to state succinctly, but fully, the allegations of the petition. They are: that the defendants, George Legendre, Bright, and the succession of Emile Legendre, are indebted, in solido, in the sum of $5,000, as principal and sureties on the bond of George Legendre, given for the faithful performance of his duties as bookkeeper and clerk of plaintiff; that during the term of said Legendre’s employment, one Felix Morris was in the employ of plaintiff as paying teller, who had also furnished bond with sureties : that said Morris embezzled $15,000 of plaintiff’s money; that Legendre, in gross violation of his duties, knowingly encouraged, connived at and concealed the wrongful acts of said Morris, thereby inducing plaintiff to retain the latter, and enabling him successfully to embezzle the money; that, by reason of the breach of the conditions of their respective bonds, “ the said Morris and the sureties on his bond as paying teller, and the said George Legendre and the 'sureties on his bond as bookkeeper and clerk aforesaid, became justly liable to your petitioner in sólido,” for the loss and damage aforesaid, viz., $15,000; that said Morris having died, two of the sureties on his bond “paid to petitioner $10,000, in order to effect their release and discharge as sureties on said bond,” leaving a balance of $5,000 due, for which “ the succession of said Morris and the said Legendre, and his said surety, Geo. L. Bright, and the succession of his other surety, Emile Legendre, are liable in solido to petitioner,” and judgment is accordingly asked against Legendre aud liis sureties in solido.

The grounds upon which the exception of no cause of action is based, are:

1. That it being alleged in the petition that Legendre and his sureties, aud Morris and his sureties, are all debtors in solido, the admitted conventional discharge of two of them, under C. C. 2203, discharges all the others, unless the creditor lias expressly reserved his right against the latter,” which last reservation is not alleged.

We are not disposed to give the effect claimed by exceptors to the allegations of solidarity contained in the petition.

That document clearly and distinctly sets forth the facts upon which the liability of defendants is based. Those facts are, that Morris and Legendre had each given separate bonds with distinct sureties for the faithful performance of the duties of their respective employments; that Morris had broken the conditions of his bond by embezzling $15,000; that Legendre had broken the conditions of his bond by wrongful and undutiful acts of connivance and concealment, without which the loss occasioned to the Bank would not have occurred.

From these facts it sufficiently appears that, if proved, the Bank had suffered a loss, for which Legendre and his surities were liable in solido ; and for which Morris aud his surities were also liable in solido; and for which, perhaps, Morris and Legendre, individually, as co-trespasers, were also liable in solido; thus presenting three groups of solidary obligations for the same object, but each having a different juridical cause.

The cause of the first group was the breach of the condition of' Legendre’s bond; of the second, the breach of the condition of Morris’ bond; of the third, the co-trespass of Morris aud Legendre.

In drawing his petition, plaintiff was not writing a juristic treatise, and, in affirming the solidary liability of all these parties for the loss, he was not required to define nicely their relations to each other in respect to that solidarity. The sufficient aud obvious purpose of the allegation was to charge that each and every one of the persons named was responsible for the whole debt. From the facts set forth in the petition, it is clear that the relation of solidary obligors inter sese did not exist between the discharged sureties of Morris and the defendants. A reasonable construction of plaintiff’s averments touching solidarity absolves him from the intention of asserting so palpable an error. Even if he had done so, it would be merely an erroneous legal conclusion, which could not, under an exception of no cause of action, operate to destroy a liability resulting from the facts charged.

- 2. It is next urged that, inasmuch as it appears from the petition that Morris vms the sole beneficiary of ihe embezzlement, he was pri-. marily liable for its restitution; that if Legendre and his sureties should be compelled to pay any portion of said loss, they would be entitled to legal subrogation to the rights and actions of the Bank against Morris and his sureties; and that, therefore, the conventional discharge of Morris’ sureties having rendered impossible legal subrogation to the Bank’s rights against them, the Bank’s recourse on the defendants is destroyed.

No nice analysis of the juridical elements of the various obligations of these parties and their relations to each Other, is necessary to demonstrate the fallacy of this position. The spectacle of Legendre, a co-trespasser, seeking to recover from the innocent sureties of Morris, what he had paid in reimbursement of a loss occasioned by his own fault, would be equally shocking to legal principles and to common sense. Nor would the sureties of Legendre stand in better case, although themselves innocent. By paying the debt of their principal, they would only succeed to those rights and actions, whether of subrogation or other, which he would have been entitled to, had he paid himself. Rev. C. C. 2161, No. 3.

The debt which they would have paid would have been a debt arising from the breach of their contractual obligation to respond for any damage occasioned by the undutiful conduct of Legendre. The sureties of Morris were not parties to that contract and were not bound “ for or with ” them for the faithful and dutiful conduct of Legendre.

3. It is finally claimed that, on payment of the loss, Legendre, and consequently his sureties would, at all events, be entitled to subrogation to the Bank’s rights against the co-trespasser, Morris, who was in greater fault, and the sole beneficiary of the trespass; that the discharge of the sureties operated the discharge of Morris also, because he and his sureties, though bearing to each other the relation of principal and sureties, were, as to the Bank, by the terms of the bond, solidary obligors.

Waiving the questions as to whether one co-trespasser can claim contribution from the other, and whether, if it exists, such right arises through any process of subrogation, it is a sufficient answer to this proposition that, from the petition, it does not appear that Morris has been discharged. The petition asserts his continued liability, which negates the idea of his conventional discharge. Exceptors, however, claim that he is discharged by operation of law, by reason of the conventional discharge of his sureties, who had bound themselves in solido with him.

This contention is based on Articles 2203 and 3045 of the Rev. Civil Code, the first of which declares that “ the remission or conventional discharge in favor of one of the co-debtors in solido discharges all the others, unless the creditor has expressly reserved his right against the latter;” and the other provides :

“ The obligation of the surety towards the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors !» solido.”

The construction contended for, that the discharge of the surety who has bound himself in solido with the principal, operates the latter’s discharge, would be a “ sticking in the back,” which could not be countenanced, even if it were not, otherwise, entirely unfounded.

The Section of the (lode in which Article 3045 is found, treats of the effects of suretyship between the creditor and the surety,” and regulates the mode in which, and the conditions under which, the creditor may enforce his recourse against the surety, including the privileges of discussion and division and other provisions in the surety’s interest. The plain meaning of Art. 3045 is, that when the surety has bound himself in solido with the debtor, he shall not be entitled to these privileges and benefits, but that, so far as concerns the rights of the creditor, the effects of his engagement shall be regulated by the principles applicable to debtors in solido.

As between the principal and surety, however, it is admitted on all hands that their relations remain the same.

From this relation springs the principle that the discharge of the principal debtor discharges the surety, but the discharge of the surety does not discharge the principal. Rev. C. C. 2205. Why? Because, from the nature of this relation, the surety who pays is entitled to subrogation to the rights of the creditor agaiust the principal, while the principal who pays has no such right against the surety.

Authority in support of exceptors’ proposition on this subject is not, and we confidently believe cannot be, produced.

Holding, therefore, 1st, that Morris has not been discharged, and, therefore, that defendants’ recourse upon him, whatever it may be, is preserved in tact; 2d, that the discharge of the sureties on the bond of Morris has no legal effect upon the rights of defendants for want of any vinculum juris bet^wegp them and said sureties, we conclude that the exception of no caused action was improperly maintained.

It is, therefore, ortjeíe.cfí” adjudged and decreed that the judgment appealed from be annulled avoided and reversed, and that the exceptions of defendants be overruled, and the case be remanded to the lower court, to be proceeded with according to law ; appellees to pay costs in both Courts.

Pochó, J., takes no part in this ease.

Rehearing refused.


author: Manning, J.

text:
    No. 8705.
    Oscar Czarnowski vs. The Succession of Michael Zeyer.
    A graduate in medicine from the University of this State is not required to make and record an affidavit of having received his degtee in order to enable him to sue for his fees. The statute upon that subject applies only to those whoso diplomas are from other institutions ,
    The charges of a physician for services cannot be determined solely upon the basis of skill. The amount of the patient’s estate, and his consequent ability to pay, also enter into the calculation and influence it.
    i PPEAL from the Twenty-sixth District Court, Parish of Jefferson. LA Hahn, J.

      Gluts. 8. Bice, Alfred B. Billings and H. Heidenheim for Plaintiff and Appellant.

      B. Shaclcelford for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sues upon a medical hill of $2,500. An exception was made to his right to recover, because lie had not made affidavit that he had received the degree of doctor of medicine, and recorded the same. He was graduated from the medical college of the University of this State.

An Act of 1855, re-enacting one of earlier date, authorizes one who has received the degree of doctor of medicine at that University’to practice physic and surgery in this State.

In 1861 a law was passed that no one should he allowed to practice medicine without making affidavit of his having received his degree from a regular institution, which he was compelled to designate, which affidavit was to be transmitted to the parish recorder, and be recorded by him. The penalty for failure to do this is inablity to collect fees or charges by legal process. Rev. Stats. Secs. 2677-9.

Tlie several Acts relating to physicians were reproduced in the revisal of 1870, the Act of 1855 therein appearing as Sec. 2684.

We construe these Acts together and as a whole, and we take them to mean that one graduated from our own University may practice without other act than receiving his diploma, while those who have, diplomas from other schools must make affidavit as required by the ■statute already cited. No doubt the graduation from our own University was considered as a fact more within the ordinary cognisance of our own people than a graduation from a school outside the State, and therefore less needed to be verified by a sworn statement. Probably too there was some thought of a discrimination in favor of our own institution, which is neither improper nor unreasonable.

The exception was properly overruled.

The services were rendered to Michael Zeyer. He had stricture of • the oesophagus, probably cancerous in its nature. He could not be fed through the mouth. Artificial means had to be resorted to, to dilate the passage through which food was conveyed into the stomach. The plaintiff accomplished it by inserting a flexible tube through which liquid nourishment was given him. It was temporary relief, only.. Finally that failed. The stricture became so complete and the oesophagus so rigid, that nourishment by the mouth had to cease. Enemas would not answer as a substitute. The man was in danger of starvation. Food around and before him in abundance, and no power to appropriate it—a modern Tantalus sitting on his'own hearth-stone.

The physician determined to perform the operation of gastrotomy. This was difficult and dangerous. Two successive incisions were made, by the last of which an aperture was made to the stomach, through which food was injected. The first incision was made December 8th, the patient having been under the plaintiff’s care since Oct. 30th. The man survived until December 29th.

It seems this surgery has not often been attempted, but it has sometimes been done successfully. Vehement asseverations of malpractice are made by the widow, who is the defendant as representative of her husband’s succession. They are not well founded. Several physicians, as witnesses, do not sustain them.

The charge for the services is amply sustained by the testimony of these physicians. Some of them think it very moderate. We cannot take their'estimate as an absolute guide. Sue. Duelos, XI Ann. 406. It includes fees for daily services“from Oct. 30th to Dec. 8th at the plaintiff’s office, for daily visits from then to the 29th at the patient’s house across the river, and for the surgical operation.

There was an attempt to prove that Zeyer consented to submit to tlie operation upon the plaintiff’s assurance that it would prolong his life from two to five years. It must have been apparent to every one but the patient that his days were numbered. Death was not far oft, but to him its horror was intensified by the lingering agony of the slow approach to it. He had not the courage to die of starvation. The surgical operation promised relief, and if not that, death under the knife was infinitely more welcome than by the throes of a stomach gnawed by unappeasable hunger. That torture is torment so great, that the ingenuity of a god could invent no greater, typefying it by a vulture ever devouring the vitals of Prometheus.

The patient did not require the persuasion. He was told the danger, and he prepared for the worst. He made his will, and submitted his body to the operation. The surgeon should be paid, but the charge is disproportionate to the man’s estate and condition in life. His estate is inventoried at $8,705.

The lower court allowed five hundred dollars. We increase it to one thousand dollars.

It is therefore ordered and decreed that the judgment of the lower court is amended by increasing the sum therein mentioned to one thousand dollars, and as thus amended that it is affirmed.

Rehearing refused.


author: Todd, J.

text:
    No. 8775.
    Peter Callery vs. New Orleans Water Works Company.
    Where a contract is made with the City Waterworks Company to procure water from the pipes and fire-plugs of the Company for a stipulated price, for the purpose of watering and sprinkling the streets, the party complying with his contract may prohibit the Company and its officers and employees from any interference with his business under the contract, and from any act to hinder or disturb him in using or procuring the required quantity from the water pipes, for the aforesaid purpose. The contract was a legal one and may be enforced.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      J. 0. Nixon, Jr. for Plaintiff and Appellee :
    An injunction may issue to compel the doing of an act as well aa to restrain from doing an. act. 7 An. 443; 14 An. 281 j 2 N. S. 501; 18 An. 242; C. P. 296, 298.
    In all cases where the obligor is capable of performing the contract, the obligee has his option, either to sue for damages or to enforce the specific performance, and he may sue for damages already due, and for the specific performance in the future. C. 0.1926,1927.
    Under its Charter the defendant is bound to furnish water to the inhabitants of New Orleans for the purpose of sprinkling and watering the streets. Act of April 1,1833, Sec. 38 j Act No. 33 of extra session of 1877, Section 11.

      The City of New Orleans, having expressly, by ordinance authorized any of its inhabitants to water the streets in front of their respective properties, has thus delegated to the inhabitants whatever rights it has in its corporate capacity, to obtain water from the Water Works Company for that- purpose. Ordinances Nos. 1135,1153.
    This Court will not take notice of ordinances'of the City of New Orleans, unless offered in evidence and proved. 7 An. 495; 9 An 562; 14 An. 303.

      Albert Voorhies, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

Plaintiff avers that bis business is that of “ watering and sprinkling certain streets in this city, for which he is paid a compensation by residents on such streets; ” that he can carry on his business" only with the use of the water, distributed throughout the city by defendant Company through its pipes; and “ that be made a contract with the said Company, through its then president, E. Toby, Esq., in or about the month of April, 1882, for the use of such water as he might use in said business, to be taken from the plugs of said Company, at the rate of one and a half dollars per month for each square watered.”

He complains that, although he has complied with his obligations, he was notified on or about the 19th October, 1882, that he could not be supplied with water after November 1st, 1882; u that there was no reason for the said notice; that the said Company has refused to allow him to continue said contract, or to draw water from its plugs for use in his said business.”

Plaintiff claims, beside, that he has the right, “ as an inhabitant of New Orleans, to the use of the water furnished by said. Company, on paying a fair price therefor, and on complying with the reasonable regulations of said Company.”

He prays for an injunction prohibiting and restraining the defendant Company from interfering with, hindering him or obstructing liim in the use of the water brought by said Company through its pipes and. plugs, in such quantities as may be sufficient for him to use in the conduct of his business in sprinkling and watering certain streets in this city.

The defendant excepted, on the ground that the petition disclosed no cause of action, and moved to dissolve the injunction, because the act prohibited could not work an irreparable injury. These exceptions having been overruled, he answered by a general denial, and appeals from a judgment against him perpetuating the injunction.

The contract set out in the petition is established by the testimony of the plaintiff and that of Mr. Toby, who, at the time of the contract, was president and superintendent of the Waterworks Company.

Plaintiff entered upon the work provided by the contract, paid his dues regularly to the Company, invested some $000 in carts, etc., necessary to conduct the business, and continued therein until about the 19th of October, 1882, when he received a uotice from the Company that he would not be allowed the use of the water after the 1st of November next ensuing.

The following ordinances were offered in evidence, under authority of which the contract is claimed to have been made:

Ord. 1135. That merchants, storekeepers and all other persons in this city be, and they are hereby authorized to have the street in front of their property or stores watered, provided the same be done at their expense.

• O'rd. 1153. Whereas property holders and taxpayers residing on and doing business in many of the principal streets of the city have petitioned both boards of aldermen, praying that the sprinkling of said streets, by means of watering carts, maybe continued, thus preventing the loss of thousands of dollars of goods monthly; therefore,

Hesolved, That Ordinance No. 5071, approved April 5th, 18fi0, prohibiting the watering of streets, be and the same is hereby repealed.

There seems to have been no limitation as to the duration of the contract, but according to the evidence, plaintiff could exercise the privileges granted under it, so long as he paid his monthly bills.

The facts stated do not seem to be disputed, but the contention is that the engagement only continued from month to month, and that the Company could end it any time by seasonable notice, and that an injunction could not lie in such a case.

The contract, though a verbal one, was made with one who, at the time, was the legal representative of the Company, and it was unlimited, as stated, as to the term of the engagement; and in the absence of any restriction by ordinance or otherwise on the president or other officer of the Company to grant the privileges claimed by plaintiff, we must presume that this officer had full authority therefor, and that the’ contract was entirely legitimate and binding.

We would not be understood as holding, that a contract of this nature could be continued indefinitely, but only that it was not in the power of the corporation to end it in this case, under the circumstances indicated and at the time and in manner shown.

The plaintiff had the legal right to use the water from the pipes and fire plugs in his business, in the manner and to the extent and for the purposes contemplated by the contract, and we can see no reason why he could not prevent the threatened invasion of his rights under such contract, and the stoppage of his water supply by an injunction.-

It was not in our view to compel the Company to do an act, but to refrain from an interference with or doing something to the prejudice of the plaintiff, and in contravention of a legal engagement.

An injunction properly lies for such a purpose and in such a case. C. P.298; McDonogh vs. Calloway, 7 R. 442; Dudley vs. Tilton, 14 An. 281.

We think the judgment appealed from was correct; and it is, therefore, affirmed with costs.

Rehearing refused.


author: Fenner, J.

text:
    No. 8074.
    Widow J. C. De St. Romes vs. Her Creditors.
    On an application for respite the usual order staying proceedings against person and property is lawful and competent.
    The eburt granting such order has power to enforce it, and to annul an d set aside acts done in violation thereof.
    The privileged creditors who, under Art. 3095 C. C., are excepted from the operation of respite proceedings, are those whose privileges result from the nature of their debts. It does not include privileges resulting merely from seizure. 24 An. 359.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      H. JD. Ogden for Opponent and Appellant.

      Olías. Louqiie for Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Under a judgment against plaintiff, opponent had issued a writ of fi. fa. and had seized and advertised for sale certain property belonging to her. Pending the advertisement, plaintiff made application for a respite, in due form of law, and to a competent court, and obtained an order calling a meeting of her creditors before A. Abat, Notary, to be held on August 2d, 1875, and directing that in the meantime, all judicial proceedings against her person and property be stayed.”

Notice of this order was duly given to opponent and to the sheriff; but, notwithstanding the same, they proceeded with the execution and sale, and the property was, on August 3d, 1875, adjudicated to opponent.

Thereupon a rule was taken in the respite proceeding on the sheriff and the opponent to show cause why the former should not be punished for contempt, and why the adjudication should not be declared null and void.

The proceeding for contempt was abandoned. The opponent took no exception to the form of proceeding, but appeared and answered the rule.

After trial, judgment was rendered making the rule absolute so far as to decree the adjudication to be null and void, and to prohibit the sheriff from passing title thereunder.

We may summarize and dispose of the defenses as follows:

1. It is said that the stay of proceedings “ in the meantime,” extended only to the date fixed for the meeting and had, therefore, expired when the sale was made. We are very clear that the words in the meantime ” meant, during the pendency of the respite proceedings.

2. It is claimed that the action of the notary in not holding the meeting on the day fixed, and in illegally postponing the same for twenty-nine days, in violation of C. C. Art. 3090, ipso facto nullified and avoided the proceeding for respite. We are at a loss to understand how any act of the notary could annul an order of the court. Notwithstanding the positive assertion of counsel to that effect, we have scoured the record in vain to find any evidence that the postponement was the act of plaintiff.

3. It is urged that a sale under execution can be stayed only by injunction. Such is the general rule; but the stay of proceedings ordered on application for respite is a lawful order, and is, in every respect, the equivalent of an injunction.

4. That the adjudication, having been made, passed a title which could only be attacked by direct action. A court is vested with power to enforce all orders which it has authority to make. Where it pos-, sesses and has exercised authority to prevent an act, it has the correlative authority to undo and set aside the act done in defiance of its lawful order. ‘

5. The most serious question in the case is whether opponent was bound by the respite proceeding under Art. 3095 C. C., which declares that the following classes of persons cannot be compelled to enter into any contract of respite: privileged creditors of what nature soever their privileges may be. * * * Therefore, the privileged creditors cannot be deprived by any respite of the right of seizing the property on which they have a privilege.”

Opponent contends that his seizure before the respite conferred a privilege on the property seized, under C. P. Art. 722, which exempted him from the operation of the respite proceeding.

If the question were an open one, it would not be free from difficulty. But it was long since held that the Art. 3095 C. C. referred only to privileges resulting from the nature of the debt and not to a privilege resulting from mere seizure of property, the Court saying, in substance, that the last phrase of the Article giving “the right of seizing the property on which they have a privilege,” indicates the legislative reference to privileges existing before, and independent of, seizure. Huppenbauer vs. Durlin, 24 An. 359.

In a very ancient case it had been held that an order to stay proceedings operated to stay even the sale of property which had been decreed by a competent court before the order; and that the sale made in violation thereof was null and void. Bermudez vs. Irion, 3 Mart. 39.

This disposes of the case. W e have no concern with the result of the respite proceedings. The adjudication was made in violation of the prohibitory order of a competent court, and was null and void, and properly set aside.

Judgment affirmed.


text:
    No. 8242.
    Underwriters’ Wrecking Company vs. The Board of Underwriters et als.
    An agent or debtor who is instructed by. bis principal or creditor to remit, without indicating any particular mode of remittance, and who does remit -in the customary mode, is not responsible further.
    If the same care, prudence, and judgment is exercised in purchasing a Bill of Exchange for a remittance, as a prudent business man uses in the conduct of his own affairs, the unexpected failure of the banting house drawing the Bill, before it can be presented, will entail no responsibility on the purchaser of the Bill.
    The payee of a bill is estopped from bolding its agents or debtor, who purchased it under instructions, responsible, after he has elected to treat the bill as his own and received a dividend upon it.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Singleton & Browne for Plaintiff and Appellee.

      Leovy & Kruttschnitt, H. G. Miller, T. Gilmore & Sons, and Merrick, Foster & Merrick for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff claims a solidary judgment against the Board of Underwriters, and thirteen insurance companies composing that Board, for $7,381.35 with interest, for salvage of the cargo of the Steamboat Golden Buie.”

The allegations are that these insurance companies united in establishing the association known as the Board of Underwriters, whose duties are to do whatever is necessary to save property insured by any of the companies, and to dispose of it when saved for their interest—that some of the companies were insurers upon the cargo of the “ Golden Bule,” a steamboat which was lost, and that the plaintiff was the salvor of part of it, and consigned it to the defendant Board, who sold it, and for payment of plaintiff’s salvage remitted to it a cheque of Pike, Brother & Co. on the Hanover National Bank of New York for $9,227.01 to the order of George W. Neare, which was presented, payment demanded and refused, and protest and notice duly made, and that afterwards the drawers paid twenty per cent, of this cheque, and this suit is for the residue.

The answer denies that the Board of Underwriters is a corporation, or judicial person of any sort, but avers that it is an association formed by insurers to prevent or lessen the losses from river or marine accidents or other causes, and that when the Golden Buie was wrecked, George W. Neare, an agent of the plaintiff, went to the wreck, superintended the salvage services, shipped the property that was saved, and drew upon the proceeds, and that finally upon striking the balance of all salvages up to October 17,1877, the remittance was made to Neare for the sum due the plaintiff—that the remittance was made at plaintiff’s request, no special manner having been designated, and in the customary manner. A bill of Pike, Brother & Co., a banking house in good repute in New Orleans, on a Bank of New York, was bought, which bill was received by the plaintiff, and a portion thereof collected by it, and afterwards the plaintiff receipted in full for the balance of salvage due it by the Board of Underwriters without any reservation as to this draft.

Pike, Brother & Co. failed October 19th, while their cheque on the New York Bank was en route.'

The testimony satisfactorily establishes that Neare’s presence and services at the wreck was as agent of the plaintiff, that the saved property was shipped to this City to be sold for the parties in interest, and the plaintiff’s salvage was dependent up'ori and apportioned to the amount of the sale. The defendant Board did not occupy the position of debtor to the plaintiff, nor did the insurance companies. The correspondence of the parties shews that was the mutual understanding of the parties.

But if it were otherwise, and the relation of debtor and creditor existed between them, the salvage was due at New Orleans where the cargo was sent for sale. So far from demanding payment here, the plaintiff instructed the defendant to remit, and if in remitting the defendant observed the same care, diligence, and good judgment as in its own business, and the remittance was made in the customary manner, it was at the risk of the plaintiff.

On October 17, 1877, when the Bill of Exchange was bought of Pike, Brother & Co., they were in good credit. No suspicion of their tottering condition was felt in commercial circles. The defendants’ faith in their solvency was as complete as at any time of their existence as a banking house. The defendant had a large sum of money in their hands at the time of their failure. The crash came two days after the-purchase of the Bill. The remittance was made under instructions, without indicating any particular mode of remittance. It was made in the usual mode; and with the same care and diligence that a prudent business man exercises in his own affairs. No more can be expected, or is required, of the debtor, and having done that much, the defendant is discharged. Brooking vs. Wade, 3 Mart. N. S. 513; 1 Daniel Negot. Instr. 237.

The plaintiff insists that the Bill, remitted to Neare and drawn in his favor, was without authority, Neare not being its agent. We have already stated that Neare was the agent of the plaintiff in saving the' cargo. If not agent for the collection and receipt of the salvage money, the plaintiff treated the Bill as properly drawn by receiving twenty -per cent, of its amount afterwards from the Banking House, collected for the plaintiff by the defendant.

The plaintiff at first threatened to sue the defendant, but afterwards elected to treat the Bill as its property, and accepted a partial payment from the drawers. The suit is only for the balance.. The plaintiff is thus estopped from holding the party who bought the bill for them, whether in buying he acted, as agent or debtor.. Bigelow’s Estoppel, 578 et seq.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the defendants, rejecting the plaintiff’s demand,.and for costs.

Behearing refused.


author: Poché, J.

text:
    No. 8694.
    Mrs. Benoit Joly, Widow John Ludowig, now Wife of Anthony Weber, vs. Anthony Weber, Her Husband.
    Under the provisions of the Civil Code, Arts. 2387, 2391, the wife has the right of demanding the administration of her paraphernal property, previously confided to her husband, whenever she chooses, and this will include the restitution of the proceeds of such portions of her paraphernal property as may have been sold by the husband.
    This demand need not be predicated upon, or accompanied by, a demand for separation of property or dissolution of the community.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.
    " J. Q. A. Fellows, A. VoorMes and F. 0. Zacharie for Plaintiff and Appellee:
    1.The wife who has left to her husband the administration of her paraphernal property, may afterwards withdraw it from him, and'has a right of action against her husband for the restitution of her paraphernal effects and other fruits. C. C. 2387, 2391.
    2.The husband having taken charge of the administration of the paraphernal effects of the wife, under the appraisement made, when the same was adjudicated to her and having entered the same on his hooks at said appraised value, mixed these goods with the bal anee of the merchandise, and made the same the basis of his yearly inventories by which he determined the profits of his business, is concluded thereby. Bouligny vs. Fortier, 16 An. 212.
    3.The husband is responsible to the wife for the amount of her paraphernal property alienated by him, and he may be condemned to reimburse its value. Bouligny vs. Fortier, 16 An. 216 j 17 An. 121; 9 An. 546; 4 It. 119; C. C. 2446; 2 Troplong, 1447; 5 Marcade, 1450.

      Alfred Grima and F. W. Huntington for Defendant and Appellant:
    1.The revenues of the paraphernal property of the wife, administered by the husband, belong to him as head of the community. R. C. C. 2386, 2402, 2404.
    2.In a suit by a wife to vrithdraw from her husband the administration of her paraphernal property, no separation of property being prayed for, and no disorder of the husband’s affairs being proved, no accounts are to be taken of the receipts and disbursements made during the community, and the community cannot be dissolved or liquidated. R. C. C. 2385, 2387, 2425.
    3.When a wife has caused to be adjudicated to her a stock of merchandise which was held in common between her and the minors of her first marriage, and there was a debt owing for the purchase price of the said stock, the second husband who administers the said property as the paraphernal property of his said wife, and sells the same according to its destination, has the right to apply the proceeds of the sale thereof to the payment of the debt owing for the purchase thereof by the said first husband. R. C. C. 2403; 6 An. 641; 3 Troplong, Oontrat de Manage, §§ 1904, 2269.
    4.A stock of goods which is declared in a marriage contract to be brought in marriage by the wife, in the said contract, is dotal, and the wife cannot withdraw the administration thereof from her husband without a judgment of separation. R. O. C. 2338, 2347, 2349, 2350; 18 An. 588; 9 An. 168.
    5.If the said stock is valued in the marriage contract without declaration that the estimated value of the same does not constitute a sale, the husband becomes the owner of such movable effects, and owes nothing but the estimated value of the same. R. O. 0. 2354 12334).
   The opinion of the Court was delivered by

Poché, J.

Plaintiff’s object in this suit is to be restored to the possession and administration of her paraphernal property.

The main facts which underlie this controversy are stated in the opinion rendered in the case of Henry F. Ludowig et al. vs. Mrs. Benoit Ludowig Weber et al. (No. 8729). A few days before their marriage, the parties to this suit entered into a contract of marriage in which it was stipulated that there should be a community of acquets and gains between the future spouses, and that each spouse should pay his and her respective debts existing before the marriage.

The contract also showed that the future husband owned in stock in trade, cash and book accounts, the equivalent of eighteen thousand dollars. The condition of the wife’s property was defined in the following article of the contract, which we transcribe in full:

The said Mrs. Benoit Joly, widow Ludowig, owns and brings in marriage as her paraphernal and extra-dotal property, her rights and interests in the. community of acquets and gains which has existed between her and her late husband, whose'succession is opened and in course of administration in the Second District Court for the Parish of Orleans, which rights and interests have not yet been liquidated and cannot be now precisely determined, but will be determined by the settlement of the succession of her said late husband and of the said community of acquets and gains, and besides her said rights yet unliquidated, she brings in marriage certain goods the value of which she appraises at the sum of ten thousand and ninety-five dollars and also a sum of two thousand five hundred dollars, consisting in book accounts considered good, and a further sum of two thousand dollars in United States currency, all of which the said Mrs. Ludowig has given cognizance to her said future husband who so acknowledges.”

Besides the general issue, the defendant urged that the stock of goods which had been adjudicated to his wife in the succession of her first husband had greatly depreciated in value from its appraisement; that he had paid out of the proceeds of said stock, debts of the succession and ■ community amounting to upwards of $25,000, and that a quantity of said stock, amounting at the price of appraisement originally made to about $14,000, remained unsold; and he finally tendered to plaintiff the administration of her real' estate, and prayed in reconvention for judgment against her for all sums expended by him for her separate property.

He prosecutes this appeal from a judgment restoring plaintiff to the administration of her separate property, allowing her a moneyed judgment for thirty-two thousand seven hundred and sixty-three 45-100 dollars, ($32,763.45) condemning the defendant to restore the stock of goods remaining unsold, valued at $13,024.91, within sixty days, and in default thereof to pay her said sum and condemning him to account to her for revenues of her immovable property, from the date of the institution of this suit. The judgment allowed to the defendant $18,199.40 on his reconventional demand. ,

The conclusions of the District Court on the amounts making up the judgment are based on the following items and calculations:

The stock of goods adjudicated to Mrs. Ludowig for $32,313.62, less sales made before her marriage, $1,124.26, amounting to. .$31,189.36

Merchandise, as per marriage contract................. 10,099.00

Accounts, as per marriage contract................... 2,500.00

Cash, as per marriage contract........................ 2,000.00

Total value of movable separate property..........$45,783.36

Deduct therefrom amount of stock remaining unsold---- 13,024.91

Balance, amount of her judgment.................$31,763.45

The amount found in favor of the defendant on his reconventional demand proceeds from a loan made by him to Ludowig of $1,255.38, and for disbursements made by him for the Ludowig succession, amounting all together to $23,354.11, one-half of which is charged to plaintiff.............................................$11,677.05

To which is added amounts paid for her children’s education.....■.......................................... 4,962.01

And for debts due by Mrs. Weber before marriage...... 1,560.43

Amount of defendant’s claims.....................$18,199.49

Numerous points were made and di.scussed below, many of which are now eliminated from the discussion, which on appeal presents only the following questions:

1. Whether a married woman can recover a money judgment against her husband in a suit for restitution of the administration of her paraphernal property, unaccompanied by a prayer for a separation of property or for a dissolution of the community.

2. Whether the goods, the cash and the accounts, amounting together to $14,449, described as the second item in article 4 of the contract of marriage, which is hereinabove transcribed, are dotal or paraphernal property.

3. Whether the defendant must be held liable for the stock first described in the same article at the price at which it was adjudicated to plaintiff, and whether he must be held accountable at that rate for the portion of that stock which he sold together with his other goods in his business as merchant tailor.

1. Defendant does not contest the right of a married woman to withdraw from her husband the administration of her paraphernal property, but his proposition is that the proceeds of such property which has been sold by the husband, cannot be reached in such form of action, but that they can be recovered only through an action for separation of property under allegations and proof of the disorder of the husband’s affairs.

His argument on this point involves a confusion of the two distinct actions contemplated under the provisions of Articles 2387 and 2391, and of Article 2425 of our Code.

The latter Article has reference to the action for separation of property, which must be predicated on the disorder of the husband’s affairs, endangering her rights, etc.

But the action created under the former Articles, is not conditioned upon any contingency in the affairs of her husband, but rests on a right which the wife can exercise at any time, and for the exercise of which she is imposed no obligation to give legal reasons. The two actions may be, and are generally cumulated, but they are nevertheless distinct and independent actions, and no provision of our law compels their cumulation.

If the husband could, by a sale of his wife’s paraphernal effects, of which he has the administration, defeat her right to be restored to the administration of such property, or of its proceeds, the provisions of our Code on this subject would confer a barren right and would be a-dead letter.

The question was examined in the early days of our jurisprudeqce, and it was settled adversely to defendant’s contention. In the case of Gilbeaux vs. Cormier, 8 N. S. 231, the identical objection was made, and was disposed of in the following language :

It is clear that she may demand the administration of her paraphernal estate, and consequently the restitution of that estate; for that is necessary to her administration. If that property consisted of debts, she might claim restitution of the bonds, notes, and the evidences of these debts. If these debts have been collected, she must have the same rights on the proceeds. If it consisted of property which the husband has sold, the consequences must be the same on the proceeds.”

The doctrine thus enunciated has been so frequently reaffirmed, that the rule as thus interpreted may now be considered as settled in that sense. Robin vs. Castille, 7 La. 293; Morales vs. Marigny, 14 An. 855; Bouligny vs. Fortier, 16 An. 212; Pecquet vs. Pecquet, 17 An. 206.

2. Defendant is equally unfortunate in his second proposition, which is met by the mere reading of the article of the marriage contract. He contends that in the expression : “ widow Ludowig owns and brings in marriage as her paraphernal and extra dotal property,” the last words refer only, as descriptive words, to the first enumerated property, and not to the stock of goods, cash and accounts in the last part of the article, and his only reason for. such a construction seems to be on account of the awkward use made of the word besides,” by the notary who drew the act. The whole article contains but one idea, conveyed in. one sentence without a .stop, and fails to justify the slightest suspicion that all the items of property therein décribed were not intended to constitute the paraphernal and extra dotal property of the future wife.

It is clear to our minds that the true meaning of the word “ besides,” as used in that sentence, was intended and understood to be “ together with” or in addition to the property first described, she brought in marriage the stock of goods,, etc., secondly described.

3. As the marriage .contract contained no appraisement of the rights of the future wife derived from the succession of her first husband, and the defendant having failed to show that the appraisement made in the adjudication of the first husband’s stock of goods was excessive, the defendant was.correctly held accountable for those goods at that price.

It is true that the evidence does show that such goods generally depreciate in value, yet as the defendant kept no separate account of his sale of those goods, which were mingled with his own goods, and were sold indiscriminately therewith, we find no proof that those goods did not bring the price at which they had been appraised; The burden was on him to show the true state of things, and he must abide the consequences.

The conclusions of the District Judge are supported by the record and amply justified by the law;.and by our jurisprudence.

Judgment affirmed. ■

Bermudez, G: J., recuses himself, having been of counsel.


text:
    No. 8697.
    R. & F. Gardere vs. J. W. Blanton et al.
    Proof of title, in an action for damages against a mere trespasser, is not required to be as complete and satisfactory as that required in a petitory action for'tho recovery of the land.
    ■When the trespass is not wilful but the result of mere inadvertence, the value of the timber when first cut is the measure of-damages.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Hahn, J.

      Alfred, Grima and H. H. Gautier for Plaintiffs and Appellees.

      Henry P. Hart for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs, alleged co-proprietors of a tract of swamp land in Jefferson Parish, sue the defendants to recover forty-five hundred dollars as damages for trespass in cutting down trees thereon for cross-ties.

Blanton derived his authority to cut the timber from one Faivre, ’ with whom he had a written contract permitting him to cut several thousand ties for four cents a tie. Faivre claimed to be the owner of the land. The ties were sequestered, and writs of injunction issued prohibiting the demolition of the timber in future.

In March, 1881, Blanton applied to Riviere Gardere, one of the plaintiffs, to purchase timber of him, who told him he owned a large swamp, but most of the timber had been cut by himself for cross-ties for the Morgan Railroad, and it would not pay to cut what was left because of its remoteness. Blanton then applied to Faivre, who pointed out certain stones as marking his boundaries. It appears there had been a great bar of iron anciently placed as a bourn, and which the plaintiffs claim marked the boundary of their land, but it had sunk so much that when search was made for it after these troubles commenced, it was discovered only after prolonged efforts. Blanton had to dig ditches or drains through the land to float the ties. After cutting about six thousand ties, which occupied him four months, Riviere Gardere notified Blanton that he was cutting timber from the plaintiffs’ land, and ordered him to desist. Blanton stopped at once. No more trees were felled, but the ties already cut were floated out. Blanton then went to Gardere and told him if he had been cutting timber from his land, he did it in ignorance—that he supposed he was cutting from Faivre’s land, but if it was otherwise, he was willing to pay or to deposit the money to be paid to whosoever owned the land.

During these four months of Blanton’s operations, Auguste Gardere, a son of one of the plaintiffs, had'frequently hunted with dog and gun over the land from which Blanton was cutting the timber, and no suspicion of trespass on his father’s land was entertained by him, and no complaint was made until in July he told Blanton he believed he was cutting on his father’s land, and immediately search was begun for the Great Bar, and when found Blanton ordered his foreman to stop cutting, and it was stopped.

Much testimony was given upon this matter, but we are satisfied Blanton’s trespass was not wilful and malicious. The evidence of title is conflicting and perplexing to the last degree. Numerous deeds are in the record. Two surveyors were examined, one of whom, Reynolds, retraced a line made by D’Hemecourt who had formerly surveyed the locus. The other, Blanchard, made a survey which seems to have been careful, and was certainly prolonged, occupying him fourteen days. The conclusion he reached creates doubt whether the timber was cut from the plaintiffs’ land.

The proof of title in an action of this kind is not required' to be as complete as in a petitory action between two claimants of ownership, and we think it is reasonably sufficient to entitle the plaintiffs to recover against a mere trespasser.

The testimony upon the quantity of timber cut from the disputed territory renders difficult an accurate estimate, both as to quantity and value. ■ The plaintiffs’ witnesses attempt to be precise, and in the effort display their unreliability. One, ¿laborer, counted the stumps of 1,190 freshly cut trees (and as to the freshness it is disproved) and values them at $1.50 each—another laborer values them at the same figures because seventy-five barrel staves can be made from each, and a third thinks each tree must be worth five dollars because his mother-in-law ' owns some trees, and she would not take less for them.

Mr. Riviere Gardere says lie would not take two dollars a tree, but he has evidently in his mind the larger trees, which were not cut, and his estimate is tinctured by the prospective profits he supposed would have been derived from a use to which he had destined them.

The trees cut were from 18 to 20 inches in diameter, and two-thirds of the swamp is untouched. The precise number of trees cut is not proved, nor the number of cross-ties, but it is certain that all the trees were not cut from the plaintiffs’ land. We do not think we can gather from the evidence that more than 2,800 ties were cut from the disputed land, and allowing four ties to each tree, the number of trees is 700, and the average value is fifty cents, or three hundred and fifty dollars in total.

It is settled that the value of the trees when first cut is the measure of damages when the trespass is not wilful, but the result of mere inadvertence. Watterson vs. Jetche, 7 Rob. 20; Yarborough vs. Nettles, 7 Ann. 117. Lord Hatherley states the doctrine thus: when once i we arrive at the fact that an inadvertence has been the cause of the misfortune, then the simple course is to make every just allowance for outlay on the part of the person who has so acquired the property, and to give back to the owner so far as is possible under the circumstances of the case the full value of that which capnot be restored to him in specie. And this statement of the then Lord Chancellor is quoted with approbation by the U. S. Supreme Court in the latest case upon this point. Bolles Wood. Ware Co. vs. U. S. 15 Reporter, 161.

Blanton’s outlay had in part enured to the plaintiffs’ benefit. The ditches and drains which he dug remain.

Blanton had pledged a part of the ties to Berkson Bros, for supplies furnished, and they intervened against the plaintiffs alone, and had judgment wjth privilege, but their costs were decreed against the defendants. This is error, but we are powerless to correct it. Blanton has not appealed from that judgment.

The judgment below allowed interest from judicial demand, which exceeds the prayer of the petition, which is for interest from the rendition of judgment.

In a supplemental brief the plaintiffs ask for a dismissal of. the appeal. There is no motion for it, and the causes alleged are not those for which the court will dismiss ex proprio mofu.

It is therefore ordered and decreed that the j udgment of the lower court is amended by reducing the sum therein of twenty-eight hundred dollars to three hundred and fifty dollars, and the interest thereon 1 to run from July 20, 1882, and that part of the judgment which perpetuates the injunction and dismisses the reconventional demand of the defendant is affirmed. It is further ordered and decreed that so much of that judgment as recognizes theplaintiffs as owners of the cross-ties and moneys sequestered in this suit is reversed, and they are recognised as having a privilege upon the ties for the payment of this decree, and so many of them as is necessary are ordered tobe sold for its payment. It is further decreed that the defendants pay the costs of the lower court, and that Blanton the defendant have judgment against the plaintiffs for the costs of this appeal.

Poehó, J., takes no part in this case, being absent when the argument was heard.

Rehearing refused. ,