author:
Buchanan, J.
     Mebeiok, C. J., Buchanan, J.

text:
    Heirs of John David v. City of New Orleans.—Adolphe Livaudais et al. v. the same.
    T1)0 mlonlion to dedicate to public lue must be signified in a maimer not liable to doubt or misconstruction, by something more than symbols of uncertain import or fanciful adornments with which it has pleased a draughtsman to decorate a plan of property. JYenw facilepresnmilnr donar?.

    Words indicativo of an intention to give should be found on the plan in order to clotbc it with such an eíl'éct. The public should accept the dedication by using the ground for the purposes indicated.
    A market-house is not necessarily public property: it may be the-object of individual ownership.
    Appeal from the Third District Oom-t oí New Orleans, Bmiiyuaaud, J.

    P. SouU <£ J. Seghei's, for plaintiffs. J. J. Michel ¿B Villeré, for defendants and appellants.
   Buchanan, J.

In the year 1807 Livaudais and Robin, owners of two adjoining tracts of land above the city oí New- Orleans, fronting on the Mississippi river, laid out their land into squares of town lots, intersected by streets, under the. name of Faubourg of the Annunciation, and offered the lots for sale, according to a plan made by Lafon, a civil engineer, deposited in the office of a notary public, with an act of deposit signed by them. Tiie laud embraced in this plan now constitutes a portion of the First District oí tile city of New Orleans. The plaintiffs in these two consolidated suits are the heirs of the original proprietors of the Faubourg Annunciation, Livaudais and Robin, and bring their petitory actions against the city, claiming two portions of groin..! of one hundred and twenty feet square each, situated, tllg-one in square 93 and the other in square 94, of Lafon’,s plan of the Fahbourg, at the junction of Melpomene street and Dryades avenue, (Cours des Dryades.) Those portions of ground have been taken possession of by the city, which has erected a market house upon the same, from which it derivos a considerable revenue.

The defendant pleads in defence of the action, that the property claimed by plaintiffs is a public plací-, and part of a public highway; that the same was so designated in the original plan of the Faubourg; and. by the acts of those tinder whom the plaintiffs claim title, the same was dedicated to public use forever.

It was admitted on trial, that the capacity of petitioners and their titles ¡ire as recited in the petition. It was also admitted, that on the property in dispute,-there exists a public market; that said market was built- by Patrick Irwin, by agreement with the Second Municipality; that the agreement was, that Irwin was to enjoy the revenue of said market for eight years; at the expiration of which time, he should deliver the market to the corporation, upou receiving one half of his original expenditure for the construction of the market; that this term has expired; that the city paid Mr. Irwin eight thousand dollars, or thereabout; and that plaintiffs notified the Second Municipality, at the time the market was erected, of their claim to be proprietors of the property now in dispute.

Under these pleadings and admissions, it is seen that the question is purely and simply one of dedication to public use, as a highway or street. The evidence of such dedication is supposed, by defendant’s counsel, to-be found in certain dots or points, which, on Lafon’s plan, extend in two parallel rows along- the east side of Dryades avenue, until they reach, severally, a point in the squares 93 and 94, one hundred and twenty feet distant from Melpomene street; where the said row of dots diverge at right angles from the general line of Dryades avenue, to a distance of one hundred and twenty feet; and then, turning again at right angles, strike Melpomene street at the distance of one hundred and twenty l'eet from Dryades avenue. No words written upon the plan indicate the meaning of these recesses of one hundred and twenty feet square, in the adjacent corners of squares 93 and 94. Those recesses lie without the general line of the street upon which is written in the plan, “ (lours des Dryades,”

Two civil engineers have been offered, by defendants, as witnesses to explain the meaning of the plan of Lafon, in reference to the dedication alleged. Those witnesses differ in their interpretation of the plan. One of them, L. H. Pilié, the city surveyor, testifies, that “he considers the piece of ground on which the market is built as part of Dryades street, for the reason that on Dryades street there are points indicating trees, and that that line of trees continued all around this piece of ground.”

“ His opinion is, that the piece of ground on which the market lies is part of the ‘ Cours des Dryades ’ and of Melpomene street:-”

The other engineer, Mr. Buisson, “being asked if, from the plan before him, he could consider the space on which is built the Dryades market as being included in the ‘ Cours des Dryades, ’ answered, there is no such designation on the plan.” “This piece of ground is not indicated on the plan as a public place, for want of tlie indications which the others have.’’ (The witness had previously stated that there are but two public squares marked on the plan — -the “ Place de VAnnunciation” and the “Place dn Marché.”)

“Being asked if, by examining the plan, he could not declare that that portion of ground on which the market is built, is not a portion of tlio (Jours des Dryades, he answered, there is no indication that it is.”

In this conflict of the opinions of professional draftsmen and surveyors, would, we think, be unsafe to infer an intention on the part of the authors of the plan of the Faubourg Annunciation to create a £;>ublic place at the junction of Melpomene and Dryades streets, composed of fractions of the adjacent squares Nos. 93 and 94, from the sole fact that a line of dots, xn-obably representing trees, is depicted on the plan, as retreating from the general course of Dryades street at this particular -point. The authorities upon the question of dedication of individual property to public use, seem to require something more definite and precise than the proof of dedication-offered by the defendant in this case.

In another case of a similar character to this, growing out of the same plan of Lafon, Judge Martin held that evidence was inadmissible to show the meaning attached by Livaudais to a word written upon this plan, '(1 ‘•ü'óliseé'’”)'. which- Kvfifi'blailiied‘ ás’ 'evidencfngí-'a'jaedicatioiairtorpntóic -uB.e.’K; ai iii'‘tlih:pfes’¿ñ't'Cíi6lélho wbrds--'ar'e'writteii'iqboirth'at'portionof thé-planfi-! wh'icii'repíefebhts 'tlie-laiidhow in dispute/ 5 That-land is.-certainly 'ou.tr.of the' general ‘lilies1 <Sf any- stl-eét. •1 It N hot- designated aS a public square," or place"; blit"wé ai/é called' upon to decl&L'eut terb'eteueli; upon-the strength-/-, of ah ornamental border of dots or p'oihts, -'which may, w -may not, ham' been intended to designate' trees; for this'is-eh'tirely''Conjectm.-al;.'there'-.' being lió evidence to show the meaning of the authdFof the- plan-.-e^eii supposing that stích bvidence couldlitive-beeií admitted uíidel-ttíe i-uling of Judge Mai-tin,' in the case .in 16th’ Louisiana, above- quoted-. •■/In the. same case,’' page 513, the court says’: '■'/■ . ■> . • i.

“There"is no evidence of the alleged dedication,'-oui of the plan ibthis - “ case;'and none in the iilan, out of the word- ‘Uolisiiim.’-'- In this same ¡ “ plan is marked a locus publicus, called ‘La j/luee de l’Annonciatioii ’ i'fiU “ the middle of ivliich is'a spot, designatédüs'á plab'efor'aóKúl-dh-:”-' '

The 'doctrine of the case quoted evidently is,’ that'the iiit'eiitioh to ■ dedicate to public úse must be signified' hi a manner hót-liablé io doubt or " misconstruction,'by son..' .hug- mbre''than symbÓl'á-' Of úhdertain import,'1 or fanciful adornments with whicli it has pleased "a‘draughtsman- to de — - oorate'á plan of'property.'" Nemo iri'bsnmitur clonare.' : .. ’’ ' '• A

Again, in íhe'greát case of Municipality No. Two v. The Orleans Cotton-press Company, 18th Louisiana Repórte; pa'ge 244, tlie! organ- -of filie majority of the’court,'in the 'decision iehcléretí,' laid dowh a'blear and'1 precise riile'for'testing'a dedication tó públic úse; -to‘be'iinferred-from-a plan; '• ‘ 'Thé: ’Cdiirt held ■ 'that - words dlidióativé-1 'of1 -an - -intention- do • igive ■ shoúl'dbe found' oivthd'plan, 'in'-' order to clothe -it -Withi such-an- effect;. andj mbiéover, that tlie’public should have-a'ccceptéd 'the--dedication, byi úslúg'fihe gróúúd'foi* the purposes indicated/;,The:-cóiirtla¡ssTimed that-/ Words of dedication niúst have been used ill the plan-'which was the subió je'ót'of the deciSióú oí tlie'Súpi-eme' Court-of-the-’United--States,;-in- -the; city of Cincinnati v. White’s lessee, 6th Peters, 432, and-.quoted -with api,-probation thé fdllOwitígideDÍsion-in¡that oaseth.-i.v; / .d .:<¡ .;••

■uff No particular fonm/ór.cSreíndny.ls.neceSsaryiinthp.dedication, of lane]., to publicusei bAllfihhitis¡required is-the.ass.eiitepffilie oypier.of tbplancj,-) a»d,ytjip:ifaqt,,of,,Its..:beipg,, ú$pd.,f,,thqip.p^-pintended,.by thp ap-mBtifim-nsi -hi .... -'.ibi--:-; mi j ¡/..,,, ...Jlj^vipgie^pmihed alj-'pii'dy^hg.forqi.qf th,e inferential grant or dedicar ti!q^.j.fll,.t|ii?1(}^v|.^i-vis p.ext, enquire,yvlqit are the f^icjs .plisclosed by jtlie lppO^fllinp-fl^oj^tp ,t]i<5, t-ycj essenti^lSj^uqcier the high authorities/just’ q-ijilqtp.(;lj;jl^t,.tlie a^pnt.qf thpopner of .the land; 2d; the accepta^cp and use by tj^ppubljp^pcQr.qiing|p the purposes 0f tlip dedication. Uppn’th’e firstpoint jtjis.^^itiipldiof^-e^o^d^ that simultanepiisly \vi,th the first move on’the part qijlq^p^auth.orities t^wajeejs taldng possession of the land in controversy,' they were warned by the plaintiffs that filie latter claimed.the lanaas'tí¡eÍi- - - - * i was done m filié ^ 'th’áít* filib1! pliiin-iti/h-jj ’U> ii.-dif tiffs, or the authors of tlieir title, bad sold lots bonndéd -by'tihfee' prem- • ises as a public place. ' " ■ w-<. ■- ' -.

Upon tbe second point there is no evidence that defendants ever 'used the premises in contest as. a public highway, the purpose to which their answer alleges that they were dedicated^ On the contrary, the first use made of ’this land was, to lease it to an individual for the purpose of building a market-house, of which the emoluments were received by the lessee during the term of the lease, and subsequently by the corporation as a branch of its revenues. A dedication to public use as a highway was surely not fulfilled by converting this land into a site for a market.

In two cases, David and Livaudais v. Municipality No. Two decided in December, 1853, and not reported, and in The Heirs of Guillotte v. The City of New Orleans, decided in November, 1856, also not reported, it was expressly held that a market-house is not necessarily public property, but maybe the object of individual ownership. It is a place to which the public have free admission for the purpose of purchasing provisions. But the right of selling them is not free to the public, at'large. That right is usually reserved to a limited number, for a rent, paid..

So far from beiiig a -public placo, a market may. be one'.,of the most profitable investments for capital, if we may judge from the market erected on this very land — a market which cost the city, as tire evidence shows, eight thousand dollars,- and is now farmed out by. the city at twelve thousand five hundred dollars a year. ■: ¡.

The original ownership of the land' being established and admitted to have been in the plaintiffs, it was incumbent on defendant to slipw, that such-ownership had been divested. This he has failed to do. ¡ ,T-hp,proof does not makeout either an original grant, or any .act of plaintiffs,-, or of their authors equivalent to a grant, of the locus in quo, for a public highway; neither is the assent of the owner of the land proved, nor. the acceptance and-use by the city for the purposes of the -dedication pleaded by them. - We therefore conclude, - that the evidence is insufficient to show the dedication; and were this otherwise, the city forfeited the same by misuser. - ' ' . ..

Jrrdgment affirmed with costs.

Mebeiok, C. J.,

dissenting.- In the rear .of Faubourg Annunciation,

- 'as laid out by Robin and Livaudais, and forming .the rear, boundary of the six-squares numbered from 91 to 96 .inclusive,, was-a long-avenue '-'marked-on the plan “Cours-des Dryades¿” parallel with-and-not quite -sb'wide as-the avenue'-marked "on the same plan' “Cours des Náyades.” '--These two avenues are tlie'prés'ént Dryad and-Naiad-streets..-.. -,. .

“The'“Coitrs déS'Dryádes” was marked on- the plan' as o'nesingle ''■public place'; that is, it was entirely inclosed by black -lines'' (éxcépt-where '“'ihtersected' by streets)' arid tows of-dbts within'thé'hríés, dóiihtléss'.to indicate trees; *-*'' ' , . , m..irr.iiqrfi-.

At the point where.it crossed Melpomene street it jutted out at right angles so as to have,an additional width of 120 feet the hues and rows of trees still continuing around the offset.

It had substantially this shape:

Four other streets besides Melpomene street, terminatedm tlie “Oours des Dryades” and bounding' the sides of the six squares above named.

Livaudais owned all one side of the centre of Melpomene street, and Robin the other side; and they laid out this avenue as well as the whole faubourg in concert. From an inspection of the plan it seems to mo quite evident that the “ Oours des Dryades ” was one entire thing- embracing everything' enclosed within the lines and rows of dots. The fact that no part of it has been indicated in any other manner nor separated from the rest by any lines or marks of division whatever, and the whole being in the rear where the property was the least valuable, and two squares of ground which were intended for sale being disfigured in order to give les Oours des Dryades its present shape, connected with the fact that the sales were made with reference to this plan, is conclusive proof to my mind that Livaudais and Robin intended all the ground embraced in the figure surrounded by lines and trees or dots to become a loons purlieus, & place common to all the inhabitants.

This faubourg was laid out in 1807. I therefore attach no importance to the claim made by the heirs of the original owners to this portion of “ Oours des Dryades” upwards of forty years after it was laid out.

The property had doubtless all been sold long previous, and they had no further interest in maintaining the integrity of the plan. But when the property was owned by their ancestors the case was different. Their property could not have been sold to advantage without judiciously laying it out into streets, squares, public places, Ac. And by laying out, public places, they rendered the property more valuable in its vicinity. It being' then the interest of the parties to dedicato portions thereof to public uses, and it being impossible for them to sell their lots for buildings and the purposes of a city, without streets, there is no room for the application of the maxim “ Nemo facile presmnitur d07iare.”

It does not appear to me to be just to allow parties wbo have derived all the advantage possible by sales under their plans, to gainsay the same when it is quite evident, that every purchaser in the neighborhood oí this street must have supposed the “ Cours des Dryades ” was precisely what it purported to be on the plan; and those purchasing in the two irregular squares must have supposed they had fronts according to the same.

If the portion now in controversy does not belong to, the public, then no part of Dryad street in this faubourg which has been used more than fifty years belongs to the city, but it is still the properly of the plaintiffs. The argument which proves their right to one hundred and twenty feet proves their right to the whole. Neither is it of any consequence on what part of the entire figure its name was written. It is natural that it should bo mitten where most convenient.

But some weight is placed upon the testimony of Mr. Buisson, the surveyor. This testimony is opposed by that of Mr. Pilié, the surveyor of the city, who says, that previous “to the building of the market the “ space on which it now lies was open free to use. There was no line of “ separation on the plan of Lafon between Dryades street and the space “ occupied by the market” — that “he considered the piece of ground on ‘ ‘ which the market is built as part of Dryades street, and gives as his “ reason that on Dryades street there are points indicating this and the “ line of trees continued all around the piece of ground.” “His opinion “ is that the piece of ground on which the market lies is part of the “ Cours des Dryades and of Melpomene street.”

But if the testimony of Mr. Buisson were not opposed by that of Mr. Pilié, it could not overthrow the original plan which we have before us. Where we have equal means of judging with others, and it is a question of construction, we cannot be controlled by the opinions of surveyors in any question arising under our laws. 16 L. R. 512. Opposed to this opinion of Mr. Buisson, as just observed, is the plan itself: the streets are marked as terminating in this avenue and one Melpomene at a point where the “Cours des Dryades” has its greatest width and that part which the judgment of this Court has given to the plaintiffs.

To each of the acts of deposit made by Robin and Livaudais of their surveys before the notary, is annexed written specifications or conditions called a “prospectus ” to govern the respective rights of vendors and the purchasers. These acts refer to the Levee street and “Cours des Dry-ades,” as I think, (and I use the term on the plan because it means more than street,) as boundaries of the faubourg.

Art. No. 5 in Robin’s act after designating the prices of the front lots says: “those which follow to the ‘Cours des Dryades’ having the same “ superficial quantity (as the preceding, viz, 7200 superficial feet,) should “ be sold at the rate of one hundred dollars each.” Now, here is an express recognition, that squares Nos. 91, 92, 93, 94, 95 and 96, as laid out, were bounded upon this Cours or avenue. Then, in another part of the same act he concedes for several years to the purchasers a common of pasture, and wood upón tlie unoccupied piece of ground “ which is found comprised from le Cours des Dryades to the limits Jean Baptiste Macar ty.”

Livaudais in his “prospectus ” annexed to his act offers for sale all the lots from the “Road which shall be established immediately behind the levee on the bank of the river Mississippi to the place known as the “Cours des Dryades,” either by separate building lots or by squares, the whole according to the plan drawn by Mr. J. Bte. Lafon, engineer, which plan will be deposited with Mr. Pedeselaux ” (the notary).

He also concedes the space from the rear of Dryades street to the Ma-carty plantation for a common, as Robin had done.

Now, what value can be attached to an opinion formed by a surveyor from an inspection of a mail as opposed to the actual recognition by the parties of their dedication to public uses ?

But it is supposed that the designation upon the plan is not sufficient to show that it was intended as a dedication to the public, and certain authorities have been cited to show that such dedication cannot be presumed. The answer to this objection is this: Dryad Street is designated in precisely the same manner as Naiad Street, the name of which instead of being placed in the centre of the street, is mitten entirely on one side, and they are both recognized in the plans as the boundaries of squares, and as wide and important streets or parks, and both are marked with dots no doubt to indicate rows of trees.

The authorities cited so far from sustaining the pretentions of the plaintiff, in my opinion, show clearly that a designation such as has here been made in the plan of this faubourg is a dedication to the public use.

The case of Livaudais v. the Second Municipality has been cited.

In that case Judge Martin said that “there is no evidence of the alleged dedication out of the plan and none in the plan except the word “Coliseum.” In the present case it has been shown that there is evidence both in and out of the plan of a dedication to public use. In the plan, because the squares on Dryad Street would not be squares, and the rear lots would not have any outlet, without the “ Cours des Dryades. ” Out of the plan, because, in the acts of deposit the squares are shown to be bounded by the same, and were so offered for sale, and in the same manner the temporary common was bounded. According then to the authority of the Livaudais case, what was wanting in that case to prove the dedication to public uses, has been established in this.

In the Orleans Cotton Press case, 18 L. R. 122, 244, what was said was in relation to a batture in front of the Faubourg Delord, which Madame Delord retained in her possession, and portions of which she was constantly selling. What was so said must be understood in relation to the subject before the court. Surely that court did not mean to say that a plan in which streets were laid out and named and marked as such and such streets, would be an insufficient dedication to the public use because no explicit words of dedication had been used by the grantor !

The case of McDonough v. Calloway et al. seems to me to be jn'ecisely in point. In that ease tlie Court said: “ The dedication made by theplan, and subsequently reeogniged in sales, is conel/uswe, and must be binding upon the former owner of the ground, the title to a part of which is derived from him by plaintiff, who, in our 'opinion, is clearly entitled to the’ use and enjoyment of the alley or passage now claimed by the defendants as their property. ” 8 Rob. 92.

In the De Armas case, 5 L. R. 519, the Judges delivered opinions seri-atim, and all that is said by Judge Matthews is, that “ Squares or other spaces of land appearing to be left vacant in the- plan of a town or city, are not (in my opinion) in consequence of tMs fact alone, to be considered as public places, and irrevocably dedicated to the use of the whole world. The plan ought to contain something on its face to show their destination and appropriation to such use, in order to imply a promise on the part of the original owner of the soil and founder of the city that they should always remain open for the use of the citizens and the public in general. ” 5 L. R. 219. If Livaudais and Robin did not intend this for the public use, why did they designate it as the Gouts des Dryades in the same manner as they did the Cours des Náyades; and why were lines and continuous rows of trees marked around the entire figure, just as they were on the borders of all the wide streets upon the plan?

In the case of City of Lafayette v. Holland, this Court said: “ It is well settled that no particular form or ceremony is necessary in the dedication to public use.”

This Court thfen cites the case of Rex v. Lloyd, wherein Lord Ellenbor-ough held that if the owner of the soil throws open a passage, and neither marks by any visible distinction, that he means to preserve all his rights over it, nor excludes persons from passing through by positive inhibition, he shall be presumed to have dedicated it to the public. 1 Camp. 262. The Court then remarks: “This maybe considered as going very far, but the .facts in this case create a stronger presumption than in that, and -we think, make it certain. The Nuns exhibit a plan of their property, upon which a street called Levee street is exhibited running parallel with the levee, and according to defendant’s statements, but a few feet from it. No specific feet are marked on the plan, as exhibiting its width. On each side, dose to the front of the lots and to the levee, lines are drawn which, seem to represent sidewallcs, and the same lines are drawn on all the other streets on the plan. The object of the Nuns in subdividing their property was to convert it into town lots, with, a view to its becoming an addition to the city of New Orleans, to which it was finally annexed under the name of one of the unincorporated faubourgs. ”

The Court concluded by holding all the space between the street and the levee as public. Here full effect was given to the plan, as in the McDonough case.

The doctrine of the Supreme Court of the United States is similar, and not less liberal than our own. In the case of The City of Cincinnati v. White, 6 Peters, 435, that court, distinguishing this class of cases from private grants, where there must be a grantor and grantee, said: “ But that js not the light in which this court has considered such dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor; and to secure Che public Che benefit held out and expected to be derived from and enjoyed by Che dedication.”

In another case, Barclay v. Howell’s Lessee, 6 Peters, 499, it was held, in reference to the plan of the town of Pittsburg, that although Water street was not marked upon the plan as the other streets, yet, as the surveyor had declared that it did extend to the river, and as property was bought and sold in reference to it, and as there were no lines marked on the plan in conflict with it, and 'the public had used it for thirty years, there was sufficient evidence of dedication to the public. See also New Orleans v. The United States, 10 Peters, 662.

In cases like the present, there is still a stronger argument which may be rendered available, and which is shadowed out in the extract from the Cincinnati case, viz., that the parties who have sold by reference to plans are estopped by their conduct, which has induced others to buy upon the faith of their representations, from controverting the same. Wide streets and avenues and open spaces, as already observed, enhance greatly the urban property in their vicinity. It is unjust, then, to permit parties who have by means of such plans, obtained the highest price for their property, and who have for a full value delivered it into other hands, to attempt to defeat the rights of the grantees by \iithbolding from their use that which was known to be an important inducement" to purchase. See Marsh v. Smith, 5 Rob. 523. In such cases, what is taken for streets, markets and public places, is more than paid for iñ the enhanced price of that remaining.

Having thus, as I think, shown that Dryad street was dedicated to the public use, and that the plaintiffs, who sold and offered their property for sale with reference to it, are estopped by their acts from withdrawing any part from the public, I will now consider, in a few words, whether there is any ground for dismembering the “ Cours des Dryades ” as laid out in the plan, or any reason to add to squares 93 and 94 what was purposely excluded by the original grantors.

The term “le cours” is not strictly an appropriate designation for a street. It is quite as appropriate for a place having the shape marked upon the plan as the “ Cours des Dryades ” as it is for a street. Cours is defined to be a “promenade; a ring; a pl:u-('where persons of quality re-, sort to take an airing in their coaches, such as Hyde Park. ” By the Dictionary of the Academy, “An agreeable place, destined or chosen ordinarily near great cities to take airings in carriages.”

It is, then, quite apparent that when this designation was given this place, it was intended it should be surrounded by trees, as shown by the plan and implied by the names “Cours” and “Dryades;” and as the park was narrower than the “ Cours des Náyades,” it was important that it should be enlarged at some points for the convenience of the public.

Again, the plaintiffs recognize in their petition, both Dryad and Melpomene streets. Then it is thus conceded, that Robin and Livaudais dedicated to the public use all that portion marked Cours des Dryades, except the offset near the Melpomene street. We have seen what importance is attached to the lines upon the plans in the Pittsburg case and the McDonough case. Now, Melpomone street by the plan is made to terminate at the Cours des Dryades, ” and if the one hundred and twenty feet claimed, were intended to be private property, then it ought to have been crossed by Melpomene street. But if dedicated to the public use, then it was sufficient to terminate the street where it did terminate.

Again, the offset in the Cours des Dryades left squares 93 and 94, which were also entirely closed by black lines, irregular in shape, yet they were so offered for sale, and sales were, shortly after the plan was executed, made under the same.

Here, then, we have the plan, -which clearly incloses the locus in quo.as apart of (Jours des Dryades; we have the recognition of this public place, a promenade or park, in the acts of deposit or dedication; the squcures are made to conform, to it; streets terminate at its limits, connecting with it; property is sold by it; it has always, as well as the street itself, been open for the public irse, and it was, forty-two years after its dedication to the public use, before any adverse pretentions were made by the original grantors or their descendants, and now, when this property, and property in its vicinity, has become valuable by establishing a market, and more than half a century has elapsed since the original dedication was made, this present action has been instituted.

Again, it is said that the city (if the dedication be conceded) has forfeited its right to’ this portion of the Cours des Dryades by misuser.

The reply to this conclusion is, that this issue is not raised by the pleadings or the proof. The plaintiffs claim in their petition the property as owners who have never parted with it. The defendant, in his answer, alleges that the locus in quo is part of a highway, and a public place, and was so designated in the original plan, and was dedicated to the public use forever. With this issue before us, I am at a loss to understand how the question can be raised as to a forfeiture by misuser. That would require an admission on the part of the plaintiffs that their authors had parted with the ownership, and dedicated the “Cours des Dryades” to public use, which they now deny. Moreover, as the plaintiffs have doubtless long since divested themselves of the ownership of these lots upon Dryad street, they have but little interest in the question as to the mode in which this public place is used.

It is the duty of the city to prevent obstructions to the public streets, but I am not aware of any law which declares the forfeiture of a locus publicus because a market has been erected upon it. The very fact that it is a locus publicus, gives any one interested, as well as the city, the right to cause obstructions to be removed, See Shepherd v. Municipality No. 3, 6 Rob. 349.

Same Case, — On a Re-iiearing.

Buchanan, J.

Per the reasons given in tlie opinion of the Court heretofore read, it is ordered, adjudged and decreed, that the judgment herein pronounced on the 26th March, 1860, remain undisturbed.

Merrick, C. J. I adhere to my former opinion.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Celestine P. Fleytas, wife of Dr. James Dupas v. Pierre Poutz and E. T. Parker, sheriff.
    To entitle the plaintiff in execution to levy upon the interest of his debtor in the stock seized, it is necessary to show what interest, if any, the latur may have acquired in his wife’s store — her separate property. As there was no e. mmunity between them, this administration did not vest in him absolutely the fruits and revenues.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      G. Morel and G. LeGardeur for plaintiffs. Janin & Griffon, for defendants and appellees.
   Voorhies, J.

The plaintiff claims to be the owner of the property levied upon as belonging to her husband, consisting in stock of an apothecary store.

The question at issue is whether this be the separate property of the husband or of the wife; for the community existing between these parties has been dissolved by judgment of separation. In the course of these proceedings the apothecary stock was adjudged to the wife, who had purchased it with proceeds of her dotal property.

Under this statement of the facts, about which there is no contestation, the case is clearly with the plaintiff against the seizing creditor; but the matter is attended with difficulty, in as much as subsequently the husband undertook to sell to a third person, with whom he formed a partnership, an undivided half of the store; and, in the course of about two years, the stock was increased by purchases made by the firm. It does not appear, however, that the increase of stock was paid for out of separate funds of the partners, or out of moneys proceeding from the sales of the store. Be this as it may, the wife did not sanction the acts of her husband, as appears by the proceedings in her suit to annul the transfer in question.

To entitle the plaintiff in execution to levy ux>on the interest of his debtor in the stock seized, it is necessary to show what interest, if any, the latter may have acquired in his wife’s store — her separate property. As there was no community between them, this administration did not vest in him absolutely the fruits and revenues. O. C. 2363.

It is but natural to presume, in the absence of proof as to the payments, that the increase in the stock was purchased with the proceeds of the sales, as the husband’s absolute insolvency precludes the idea that he might have made the purchases out of other resources. 0. 0. 2263.

Judgment affirmed.


author: Buchanan, J.

text:
    J. Guma & Co. v. Hope Insurance Company of New Orleans.
    Where the plaintiffs make out & prima, facie case, it is incumbent upon the defendant to show that they have made a fraudulent exaggeration of their loss, otherwise the verdict of the jury will not be disturbed.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      T. J. & A. G. iSemmes, for plaintiffs. Bonford, Johnson & Denis, for defendants and appellees.
   Buchanan, J.

The defendants are appellants from a judgment rendered against them upon a policy of insurance against fire, signed by them in favor of plaintiffs. The merchandise insured, a stock of Havana segars, was totally consumed within the time limited in the policy, by a fire originating in the adjoining tenement. Upon this merchandise, plaintiffs had effected insurance, in three different offices, to the amount of twenty thousand dollars, six thousand of which in the office of defendants.

Defendants admit the execution of the policy; but plead in defence of this action, that plaintiffs had not on the insured premises, at the time of the fire, the amount of goods declared by them in their petition and in the sworn statement of loss delivered by them to the insurers as preliminary proof; that plaintiffs are fraudulently seeking to recover for a loss which they have not incurred, and, therefore, under the terms of the policy, have forfeited all claim to indemnity.

This issue of fact was submitted to a jury, who found in favor of plaintiffs for the total amount claimed.

After an ineffectual attempt to obtain a new trial, the defendants appealed.

The plaintiffs offered a mass of evidence in support of their claim, consisting, 1st, of the testimony of many dealers in segars in this city; 2d, of that of an auctioneer through ,whom they had made large sales of segars; 3d, of that of their clerk and others, to particular transactions; 4th, their invoice and sales books from the consignment of their business to the date of the fire, carefully and laboriously digested by a skillful accountant, who has been examined as a witness.

The evidence of plaintiffs certainly made out at least aprima facie case in their favor; and we think, with the jury, that the defendants have failed in fixing upon plaintiffs a fraudulent exaggeration of their loss. The evidence offered for that purpose is of a very vague character.

Much pains seems to' have been taken to show that the quantity of Havana segars imported by the plaintiffs, through the Custom House, fell short of the quantity of stock of that sort of goods shown by the invoice book of plaintiffs to have been on hand in the course of their business in this city. But the fact, if admitted, that plaintiffs had not imported through the Custom House as many Havana segars as they claim to have had on hand, would not be conclusive proof of the existence or non-existence of such a stock in their hands at the time of the fire. They may have purchased the segars in this city, from an importer, who may or may not have paid duties on the importation. It is proved that-one very large and valuable invoice was thus purchased a few weeks before the fire.

Again, it is proved that plaintiffs caused segars to be manufactured in this city, of Havana tobacco. These segars never went through the Custom house, in the form of segars at least. Yet we are not prepared to assert that they were improperly designated as Havana segars. At all events, they would fall within the description of articles insured in plaintiffs’policy, which is, “ Stock in trade, consisting principally of segars, tobacco, and Havana produce, contained in the second floor of the brick slated building,” &e.

Upon the whole, we see no sufficient cause to disturb the verdict of the jury, upon questions purely of fact, presented to them in this case.

Judgment affirmed with costs.


author: Meebick, C. J.

text:
    The State v. The Judge of the Fourth District Court of New Orleans.
    A provisional syndic was condemned to pay to tlie syndic a certain amount over $300 in liis hands belonging to an insolvent estate, or be imprisoned until paid. — field: that lie could take a suspensive appeal according to articles 565 and 575 of the Code of Practice. The mere fact that proceedings are conducted in a summary manner has no influence on the right of appeal.
    ON the relation of J. G. Davidson, praying for a writ of mandmmis. '

      George L. Bright, for relator.
   Meebick, C. J.

A rule nisi issued in this case against the Judge of the Fourth District Court, to show cause why a writ of memdemvus should not issue requiring him to grant an appeal The case now stands on the answer of the Judge.

The judgment or order from which the relator seeks an appeal, was rendered upon a rule filed on the 4th day of December, 1861, calling upon the relator to show cause why, as provisional syndic of the creditors of Samuel Sidle, he should not pay over to the definitive syndic the sum of ¡¡>1,147 95, received from the Sheriff, or be punished for disobeying the order so to do! The judgment was rendered on the 17th of December, and ordered the relator to pay to James Hawey, the syndic, “immediately, the sum of $951 31 received by him (the relator) as provisional syndic, and in default of such payment or delivery, that be, said Davidson, be imprisoned by tbe Sheriff until such payment or delivery is effected.”

The following, from the answer of the Judge, will explain the proceedings prior to said rule and decree thereon. The answer shows: “That on the 13th of February, 1861, J. 0. Davidson was appointed provisional syndic of Samuel Sidle’s insolvency. Upon the meeting of the creditors of Sidle a contest arose as to who had been elected syndic, and on the matter being referred to this ” (the District) “ Court, it was decided that James Hawey, and not J. C. Davidson, had been elected syndic. From this decision Davidson appealed to the Supreme Court. On the 19th of June, 1861, Hawey, in pursuance of the decision declaring him syndic, took a rule on Davidson as provisional syndic, alleging that Davidson refused to deliver up to him the property and effects of the insolvent. This rule was made absolute on the 26th of June, 1861, and Davidson was ordered to deliver to Hawey, syndic, all the goods and effects and property, of whatever nature and kind, belonging to the insolvent; and further ordered to render an account within three days, in accordance with the 10th section of the Act relative to voluntary surrenders (Acts 1855, p. 433). A copy of the judgment was served on Davidson personally on the 27th of June. This judgment has never been appealed from.”

On the 4th of December, 1861, Hawey took the rule already noticed, upon which the judgment was rendered from which Davidson is endeavoring to appeal. It appears that the relator, within the delay allowed by law for suspensive appeals, applied to the Judge of the Fourth District Court to affix his signature to the judgment and to grant him a suspensive appeal therefrom, and that he tendered an appeal bond with security in the sum of $2,000. It further appears that a copy of the judgment has been placed in the hands of the Sheriff for execution.

The District Judge considered the rule taken on the 4th of December as a proceeding under Art. 130 C. P., to enforce the execution of the decree of June 19th of the same year. He was further of the opinion, that the provisional syndic was an officer of the court, and amenable to the same for any breach of trust, and that under the case of Gridley v. Conner, 2 An. 89, such officer cannot delay the proceedings of the creditors by .suits conducted with the usual delays, nor by a suspensive appeal.

It is manifest that the decree of the 17th of December, 1861, is a different decree from that of June 26th, ordering the provisional syndic, in general terms, to deliver the assets to the syndic. It was found that the latter order or decree was insufficient. Hence, a new proceeding was. commenced, in furtherance of the" general order, it is true, but different, because a definite sum of money was demanded of the defendant, who was ordered to pay the same, and in default thereof, be imprisoned until he did.

Here, then, is a judgment against the defendant. Is it subject to an appeal? To ascertain this, we look to the rule taken by the syndic to see what is demanded. It is $1,147 95 in money. The 62d article of the Constitution therefore gives the defendant a right to appeal, for the matter in dispute exceeds $300. Was the defendant entitled to a suspensive appeal? His application was in time, and we are not aware of any law which authorizes the provisional execution of a judgment for money where the appeal is taken within the ten days allowed by law for the same. The defendant seems to stand on the same ground as any other defendant, and entitled to his suspensive appeal. C. P. 565 and 575.

The mere fact that proceedings are conducted in a summary manner has no influence on the right of appeal.

The bond required by law and the power conferred on the appellate court to grant damages in cases of frivolous appeals are supposed by the law-maker to be an adequate indemnity to the appellee for the delay and damage he may sustain in consequence of the appeal. . ‘

It is therefore ordered, that the rule taken in this case be made absolute, and that a mandamus issue as prayed for, commanding the Hon. the Judge of the Fourth District Court of New Orleans to sign the judgment rendered on the 17th day of December, 1861, on the rule taken by James Hawey, definitive syndic, in the case of Samuel Sidle v. His Creditors, No. 14,464 of said Fourth District Court, against J. C. Davidson, and to grant the defendant in said rule a suspensive appeal from said judgment, returnable to this Court, upon the defendant’s giving his bond, conditioned as the law requires, with good and solvent security in tLo sum of $2,000, or other sufficient sum for a suspensive appeal.


author: Mebbick, J.

text:
    J. H. Freligh v. W. L. Miller, et al.
    Every partner may, without the consent of his partners, enter into partnership with a third person for the share which he has in the partnership, hut ho cannot, without the consent of his partners, make a partner in the original partnership, should he even have the administration of it.
    Every partner owes to the partnership all that he has promised to bring into the same. Who promises to bring into the partnership a certain thing, is bound, in case of eviction of it, in the same manner as a seller towards the purchaser who buys from him.
    Plaintiff can recover upon stipulation pour autrui under C. P.55; C. C. 1884, 1896. “ These articles, however, do not estop the person making the stipulation from setting up equities; and the right to do so must be determined by a recurrence to such general principles of law and justice as regulate the subject of contracts/5
    Error as to the thing which is .the subject of the contract does not invalidate it, unless it bears on the substance or some substantial quality of the thing.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Hunton & Miller, for plaintiff and appellant. B. é H. Marr and Hays ds Adams, for defendants.
   Mebbick, J.

On or about the 10th of May, 1859, the plaintiff, J. H. Freligh, J. E. Booker and M. Langhorne, chartered the steamboat Messenger as a packet to run between Memphis, Tennnessee, and this city, for the term of six months. The hire of the boat was $4500, lost or not lost. Langhorne had one-half interest, and Booker andFreligh one-fourth each.

About the second day of July, 1869, the defendant, W. L. Miller, purchased Langhorne’s interest in the charter. He paid 12250 and agreed “to take Langhorne’s place as one of the orginal charterers, and to “ occupy the same position ■with respect to the other charterers, thatLang- ‘ ‘ home had done. ” Miller was considered a silent partner with Langhorne from the first.

Shortly after Miller.purchased Langhorne’s interest, he sold the one-half thereof to the defendant, W. J. Ashford: that is, Ashford acquired one-fourth interest directly from Miller. Miller considered himself responsible to Langhorne, and Ashford to him. But the latter came into the charter by the agreement “on the same conditions as Miller had done “and occupied the same position with reference to the other cha/rterers, “so far as one-fourth interest was concerned.”

Some losses had been incurred at this time. Ashford was informed before the purchase, to Miller’s knowledge, that the charter was insured to the amount of one-half of the original sum, viz: 12250. He was also informed that the boat would receive $700 per trip for seven trips, for carrying the mail. These representations were not true, and Miller himself was in error in regard to the same having probably been misinformed as well as Ashford by Booker, who also acted as clerk on the boat.

On the 28th day of August, 1859, the boat was lost. No money for the transportation of the mails nor insurance was received by the firm.

The plaintiff, Ereligh, in addition to his portion of the price of the charter, has paid $5604 22. This suit is to compel a contribution from Miller and Ashford towards the same. The defendants waived objections as to the form of proceeding. Judgment was rendered for plaintiff against Miller. Ashford had judgment against the plaintiff, who appeals. The only question before us is in reference to Ashford’s liability.

It is clear that the contract between Miller and Ashford cordd not make the latter a partner of the original partnership without some concurrence on the part of the other partners. C. C. 2842. Neither could the other partners hold him (Ashford) responsible to themselves as a partner without some stipulation to that effect from Ashford to Miller. In the plaintiff’s petition he says that he has been informed that Ashford has assumed the position of an original party to the charter, and that he is liable for MS’ proportion of all losses. It does not, therefore, appear, even by plaintiff’s allegations, that Ashford has been treated as a partner by the other members, and plaintiff must recover, if at all, upon the stipulation pom' autrui, for he holds no subrogation to Miller’s right.. Strch a stipulation is perhaps implied in Ashford’s agreement to occupy the same position to the original lessees of the boat as Miller had done. C. P. 35; C. 0. 1884, 1896. Conceding this point to be with the plaintiff, another question arises, and that is can the plaintiff recover against the proof of the misrepresentations made to Ashford respecting the insurance and the carrying of the mail ?

It is not shown that the plaintiff had any knowledge of these misrepresentations: still he now sues in affirmance of Miller’s contract, and he cannot have any greater riglits under it than Miller would have had. 9 An. 196.

It is shown that when Ashford entered into the agreement he was informed by Booker, and, probably by Miller, that the charter was protected by insurance to the amount of $2260, if not $2600. He was also led to believe that the parties were entitled to carry the mail for seven trips at $700, making $4900 more. Some of the partners at that time knew that the post-office department had refused to pay for carrying the mail, and they had been so notified. A contract made under such circumstances could not be binding as between the parties, because the error bore upon a substantial quality of the thing. The larger of the two sums was more than the cost of the charter of the boat. And the two sums together would have met the losses and left a surplus of $1446 78 for distribution. These two objects are so considerable with reference to the whole charter, that we can safely conclude that Ashford, after nearly two months of the time had expired, would not have entered into the contract and given the sum he did, viz, the one-fourth of the original price, had he known the true state of facts. O. C. 1818, 1836. Had the contract been executed and Ashford received as a partner, we cannot perceive how the other partners, ex equo et dono, could derive any advantage from it, induced as it was by the erroneous statements of Booker, one of their number, without making an indemnity for the injury occasioned thereby. See C. C. 2827, 2828. With such indemnity made, there would be nothing to demand.

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


author: Voobhies, J. Mekbick, C. J.

text:
    Succession of Mrs. J. G. Weber.
    A tutor cannot proceed to sell succession property, by an order of the court, without the advice of a family meeting.
    Creditors have a two-fold remedy : to proceed against the tutor in the usual way, or to provoke the appointment of an administrator, a sale by whom does not require a family meeting.
    The heirs having a mere residuary interest in the estate thus administered, the payment of the debts must be effected even without reference to tho appraisement of the property to be adjudicated.

      On a re-hearing. — A purchaser will.not be made to comply with the terms oí sale with a cloud resting upon his title. It is a different thing where the purchaser complies voluntarily with the terms of sale and goes into possession.
    The mandate of the executor is primarily to seo that the intentions of the testator as expressed in the will are carried out. The administrator is appointed to pay debts and deliver the estate to the heirs. The curator of a vacant estate must sell, pay debts, and pay residue into the State Treasury. The mission of the tutor is to administer the estate of the minor, and he may administer any succession falling to him.
    A meeting of the family must declare that the sale or mortgage of a minor’s estate is of absolute necessity, or to his evident advantage.

      By the Court: — Where there is such irregularity in the decree ordering the sale oí minors’ property, as to render it liable to reversal on a suspensive appeal, which still appears to be open to the under-tutor, we will not compel the purchaser to comply wi$h the terms of sale.
    Appeal from tbe Second District Court of New Orleans, Morgan, J.

      T. W. Oollensx for plaintiff. J. Ad Hosier, for defendant and appellant.
   Voobhies, J.

A lot of ground, with improvements, was adjudicated to the defendant, against whom the present rule was taken to have the property sold a la folie enehére, for non-compliance with the terms of adjudication.

The property was offered for sale at the instance of the tutor of the minor heirs, by an order of the Probate Court, without the advice of a family meeting. The object of the sale was the payment of the debts of the succession.

Several objections are raised against the validity of these proceedings, by the adjuclicatee, who refused to comply with the sale and never took possession of the property sold. The first, which goes to the validity of the sale, we think conclusive; — that is, the failure to call for the advice of a family meeting.

The creditors of Mrs. Weber’s succession had a two-fold remedy: to proceed against the tutor in the usual way, or to provoke the appointment of an administrator. Had the latter course been pursued, a sale ordered at the instance of the administrator would not depend, for its validity, upon the advice of a family meeting: the heirs having a mere residuary interest in the estate thus administered, the payment of the debts must be effected even without reference to the appraisement of the property to be adjudicated. This is the usual way of settling estates which are encumbered with debts.

But if the creditors choose to let the tutor of the minors go on with the administration of the succession, which has devolved upon them with the benefit of inventory by effect of law, it is necessary then to distinguish at whose instance the sale is provoked, even for the payment of debts. If by the tutor, then the provisions of articles 334, 335, 336, and 337 of the Oivil Code govern the case; and the advice of the family meeting cannot be dispensed with. But if by the creditors, then recourse must be had to articles 990, 991 and 992 of the Code of Practice, and then the services of a family meeting are not wanted. Vide C. C. 1155, 1156; Michel v. Delaporte, 14 An. 91; Carter v. McManus, 15 An. 641; Bryan v. Atchison, 2 An. 463; Succession of Ira Smith, 9 An. 107; Domat, vol. 2, liv. rv, ?¿ 24, 25.

As the adjudication of the property of Mrs. Weber’s succession was not consummated by the payment of the price, followed by possession on the part of the vendee, it is of no practical utility to determine whether the latter would be protected by the consummation of the sale. There is a radical defect in the title which is tendered to him; and the aid of the Com-t, in a case of this kind, cannot be given to force upon an unwilling party the illegal transfer of minors’ property.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment in favor of the defendant and appellant, with costs in both courts.

Same Case — On a Rule.

Mekbick, C. J.

In this case a petition for a re-hearing has been filed. It is supposed by counsel, that the opinion read by us overrules the case of Bryan v. Atchison, 2 An. 463, and subsequent cases wherein (the creditors not opposing) the right of the tutor to administer a succession falling to his ward is recognized.

An attentive examination of the opinion in this case, and an examination of the authorities therein cited will show, that the authority of that case is in no manner impaired by the decree which we have pronounced.

In Bryan v. Atchison, a creditor obtained a decree against the tutor for the sale of the effects composing a succession which had been accepted for the minor by the advice of a family meeting. The sale was followed by a monition.

The only question, therefore, was, could the tutor stand in judgment for the succession? It was held that he could.

The question here is not, can the tutor stand in judgment, but, can he compel a purchaser to accept a sale where he, the tutor, has neglected the forms of law in provoking the sale, and where such irregularities may throw a doubt upon the title ?

It has been held by repeated decisions of this court, that we will not compel a purchaser to comply with the terms of sale with a cloud resting upon his title. 9 An. 232; 9 An. 660; 11 An. 109. It is a different thing where the purchaser complies voluntarily with the terms of sale and goes into possession.

That such a cloud rests upon the title tendered the purchaser in this case we think will be made manifest by a few observations.

The Civil Code and Code of Practice contain different rules for the guidance of the different sorts of representatives of successions.

The heir pure and simple, the executor, the administrator, the curator of vacant estates, the curator of absent heirs, and the tutor, while they have many duties in common, have others peculiar to themselves. It is the appointment of the Judge (except in the case of the heir) which fixes the character of the representative, and then the law prescribes the routine which he must follow, and provides the machinery through which he must work out the results contemplated by his appointment.

The mandate of the executor is primarily to see that the intentions of the testator as expressed in the will are carried out. The administrator is appointed to pay debts and deliver the estate to the heirs. The curator of a vacant estate must sell, pay debts, and pay residue into the State treasury.

The mission of the tutor as fixed by his appointment and the letters granted him, is to administer the estate of the minor. C. C. 327. He is the agent of the minor, and he does for the minor what the latter might do for himself if he were of the age of majority. The law accepts for the minor any succession which falls to him with the benefit of inventory. If therefore there should be found in the patrimony of the minor, a Succession, the tutor may administer it; not because it is so written in the letters of tutorship, for such express authority cannot there be found; but because, the succession is an effect, a thing belonging to the minor, and therefore subject to the administration of the tutor for the ultimate advantage of the minor.

Now, the Civil Code Art. 334, makes the convocation of a family meeting necessary to the alienation of a minor’s lands or slaves. The undeiv tutor must be present at such family meeting, and he may assent to the action of the family meeting, or he may oppose it. If he opposes it and the court of the first instance decides against him, he may appeal. If he has this right when the tutor does his duty and observes the forms of law, who can say that he has no right to appeal because the tutor has proceeded irregularly?

Now, .suppose the under-tutor has, or should hereafter appeal from the decree ordering the sale in the case before us, and for want of notice to him the appeal should be declared suspensive; would it not have the effect of vacating the purchaser’s title. With this doubt resting upon the title, we say the purchaser is not bound to comply with the terms of s&le.

The formality of the family meeting required by Art. 334 C. C. is not an idle one. If the natural tutor or tutrix, who give no bond, could on a simple petition change the estate of the minors from immovables or slaves into money, the estates of the latter would be greatly jeopardized. Commonly the more solvent estates are left to be administered by the tutor. The temptations of trade, the embarrassed finances of the tutor, the demands of a second family, as well as other motives, might prompt to injudicious sales of the minor’s property if the wholesome provisions of Art. 334 could be- disregarded with entire impunity.

In conclusion, in order to prevent all misapprehension, we say that we here decide, that where there is such irregularity in the decree ordering the sale of minors’ property as to render it liable to reversal on a sus-pensive appeal, which still appears to be open to the under-tutor, we will not compel the purchaser to comply with the terms of sale. This principle does not appear to us to be in conflict with either the case of Lallanne’s Heirs v. Moreau, 13 L. R. 432, or Gibson v. Foster, 2 An. 509.

It is therefore ordered, that the petition for a re-hearing in this case be refused.


author: Voorhees, J.

text:
    The State v. John Ferris.
    Every person shall he allowed to make his full defence hy counsel learned in the law ; and the court before whom he shall be tried, or some judge thereof, shall immediately upon his request assign to him such counsel as he may desire. The counsel of any person accused of crime shall have free access to him at all reasonable hours.
    The right to be heard by counsel learned in the law is a precious one ; it is guarantied to all parties oven in civil causes. Where counsel fails to appear at the trial, without the connivance of the accused, the latter is entitled to a postponement of the case for the purpose of obtaining other assistance.
    Appeal from the First District Court of New Orleans, Mint, J.

      A. Sambola, for defendant and appellant. T. J. Semmes, Attorney General, for the State.
   Voorhees, J.

The defendant assigns as error the ruling of the District Judge, refusing to postpone the trial of the case in order to enable his counsel to prepare for the defence.

The court below had appointed a member of the bar to represent the accused, who was incarcerated under a charge of murder; but, on the day fixed for the trial, the counsel did not appear. The judge thereupon appointed in his stead C. Guillet, Esq., who happened to be in the court room and accepted the trust. Upon being ordered to proceed to trial, Mr. Guillet objected and prayed for a postponement or continuance; in order that he might be enabled, to make due preparation. This application was overruled; and we find at the foot of the bill of exceptions the following statement by the District Judge, to wit:

“ Upon the motion for a continuance the Attorney General offered to accede to it, if upon consultation with the accused, the counsel appointed by the court, Mr. Guillet, would find himself able to suggest or show that by any negligence on the part of his former counsel, the accused now found himself deprived of any witness or means of defence, or if it could be suggested or shown that the continuance would probably enable the accused to obtain and produce any witness or evidence not now in court; but the counsel for the prisoner, after Consultation with his client, declared he could not make any such suggestion or showing.”

Had the prisoner the right to a continuance, on the ground that his former counsel was absent, and that the counsel subsequently appointed by the court stood in need of time for preparation, it is obvious that the conditions imposed upon him were unauthorized

A similar question was presented in the case of the State v. Romero, 5 An. 24; but the point was not determined, because the record contained no motion or affidavit for a continuance on that ground, nor exception to the ruling of the District Judge. In the present instance there are a motion for a continuance, the affidavit, the bill of exception, and the motion for a new trial, all of which are predicated upon the alleged erroneous ruling of the inferior court refusing the postponement of the trial.

Article 103 of the Constitution secures to the accused the right of being heard by counsel; and section 17 of the Act relative to criminal proceedings (Sess. Acts, 1855. p. 152) provides that “Every person shall be allowed to make his full defence by counsel learned in the law; and the court before whom he shall be tried, or some judge thereof, shall immediately upon his request assign to him such counsel as he shall desire. The counsel of any person accused of crime shall have free access to him at all reasonable hours.”

The right to be heard by counsel learned in the law is a precious one; it is guarantied to all parties even in civil causes. It acquires additional importance when the life of the accused is at stake.'

If in civil matters absentees are represented by counsel, to whom a reasonable time is given to correspond with their clients, it would be an anomaly, that in the prosecution of crimes and offences, a privilege of like character were not extended to the accused. The law in securing to them the assistance of counsel did not intend to extend a barren right; for of what avail would be the privilege of counsel to have free access to the prisoner at all reasonable hours, if on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter into the investigation of the cause ?

The counsel appointed by the court is entitled to a reasonable time for preparation; and this necessitates a postponement of the trial. But what constitutes a reasonable time must depend upon circumstances; and should be regulated by the District Judge in the exercise of a sound discretion. In the case at bar no time whatever was granted to the party.

It is therefore ordered and decreed, that the judgment of the District Court and the verdict of the jury be avoided and set aside, and that this cause be remanded for a new trial.

Same Case — On Application for a Re-hearing.

It is contended on behalf of the State, that the appointment of other counsel for the prisoner by the judge was made as a favor, and consequently, that the application for a continuance of the cause in order to give time to the counsel thus appointed to prepare the defence was without foundation.

We hold that it is a right' of the accused to be heard by counsel; that, if he wishes to avail himself of that right, it is the duty of the court to appoint a member of the bar to act as his counsel; and finally, that if the counsel so appointed fails to appear at the trial without the connivance of the accused; the latter is entitled to a postponement of the trial for the purpose of obtaining other assistance. (Const., art. 103, Act 1855, p. 152, 117.)

In our opinion we stated that the counsel appointed was entitled to reasonable time to prepare; but that it was for the District Judge to determine what was reasonable time. He must, in the exercise of a sound discretion, either grant a continuance or merely postpone the trial during a short delay, according to circumstances.

Re-hearing refused.

Land, J. absent.


text:
    O. Talamon & Co., for the use of, &c., v. Home and Citizens’ Mutual Insurance Companies.
    "When the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in the attempt to avoid the fire, the insurer is responsible.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      G. (& 0. JS. Schmidt, for plaintiffs and appellants. Bonford, Singleton <& Olaelc, and A. A. JPitot, for defendants.
   Buchanan, J.

Pontiff insured against fire, in two offices, five thousand dollars in each, a stock in trade of a country store. Before the expiration of the risk, a fire broke out in the immediate vicinity of the premises occupied by the assured. This was the same fire spoken of in our decision of the case of Caballero and Basualdo, reported in 15th Annual, p. 217.

Plaintiff has made a statement of the loss suffered by him, under the four following heads:

1.A portion of the stock of goods, amounting to #8,000, was damaged by blood, mud and water, to the amount of 30 per cent.— say.#2,400

2.Another portion, of the value of #1,200, was damaged.by the bursting of the roof, and the falling of bricks, timber, &o,, to the extent of 30 per cent., say.'. 360

3.The remainder of the stock, valued at #10,800, damaged in consequence of the necessity of removal during a dark night, to the extent of 15 per cent. — say. 1,620

4.Expenses of removal. 150

Total.#4,530

The defence set up against this claim is, that the loss was not occasioned by a risk assured against.

From the evidence, it seems that no'part of the stock in trade of plaintiff was actually consumed by fire; but that the damage was sustained, partly in efforts to remove the goods from the premises of plaintiff to a place more remote from the seat of conflagration, with the intention of Saving them from threatened destruction by fire; and partly, by the fall of buildings occasioned by an explosion of gunpowder.

The District Judge was of opinion that inasmuch as by the conditions of the policy, the assured was obliged to use his best endeavors for saving and preserving the property, in the cases of fire, and of loss or damage by fire, and of exposure to loss or damage by fire, that he was entitled to recover for the third and fourth items of the above statement.

The plaintiff appeals, and urges that the first item of his statement of loss, is, equally with the third and fourth, referable to the head of damage occasioned by a compliance with his obligation to use his best endeavors to preserve the propetry from the fire.

On the other hand, the counsel of defendants, who by an answer to the appeal filed, ask for an amendment of their judgment in their favor, contend that the plaintiff has no claim to indemnity for damage and expenses incurred in removing the goods, because, in so doing, he was simply complying with a condition imposed in the interest of the underwriter, and diminishing his liability.

Upon this point of controversy, we quoted with approbation, in the case of Caballero (15 An. 217) an authority from Bouvier, to the effect that “ when the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in the attempt to avoid the fire, the insurer is responsible.” We have seen no good reason for changing our opinion upon this point. It remains to be seen, whether the first item of plaintiff’s statement comes within this class of damage.

It is not expressed in the statement that the damage by mud, blood and water, was incurred in the attempt to remove the goods from plaintiff’s store; but the evidence makes it very clear that, in point of fact, it was so incurred. Upon the jn'inciples of the decision in the court below, and of the doctrine heretofore recognized by us, the plaintiff is therefore entitled to have the first item of damage assessed in his favor. The policy makes plaintiff his own insurer to the extent of one-fourtli of the loss. The other three-fourths of the first, third and fourth items of loss, must be borne by defendants in equal proportions.

The-second item is inadmissible under the decision in the case, above quoted, of Caballero and Basualdo. Upon this point the Court was divided in that case, two Judges dissenting, as shown by the report of the case. But the counsel of plaintiff relieves ris of any difficulty in relation to it, by waiving in argument, before this Court, this portion of his claim.

•It is therefore adjudged and decreed, that the judgment of the District Court be amended; and judgment is hereby rendered in favor of O. Tala-mon & Co. for the use and benefit of A. Sallé, against each of the defendants, the Home Mutual Insurance Company of New Orleans, and the Citizens’ Insurance Company of New Orleans, severally, for the sum of fifteen hundred and sixty-three dollars and seventy-five cents, with legal interest from judicial demand; and against the said defendants, in solido, for the costs in both courts.


author: Land, J.

text:
    Jones & Daugharty v. Aaron Goza.
    Whore a magistrate assigns counsel, under the statute, and another assists the one so assignod, the plaintiff cannot recover against the defendant where no contract mas made with him personally.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.
    Plaintiffs in pro. p. FeFmnce & Pilcher, for defendant.
   Land, J.

The plaintiffs, attorneys-at-law, sue to recover a fee of six hundred dollars for assisting in the defence of a slave charged with the crime of murder.

The evidence shows that in the absence of the owner of the slave, the Justice Of the Peace before whom the accusation had been made, appointed A. J. Lawrence Esq. to act as counsel for the accused; that G. W. Daugharty on behalf of the law Arm of Jones & Daugharty, with the assent of the Justice of the Peace, assisted Lawrence in the defence; and that the trial resulted in the acquittal of the slave. It further shows that the magistrate considered Daugharty as assisting counsel by appointment, and jointly interested with Lawrence in the fee to be paid by the defendant; and that a fee of fifty dollars has been allowed and paid to Lawrence for his services in the case.

It is not pretended that there was any express contract for the payment of fees; and the only ground on which the plaintiffs can claim compensation for their services, is that they appeared, and assisted in the case, with the consent of the magistrate before whom the slave was tried. But the magistrate, having appointed A. J. Lawrence Esq., was without any further legal authority to assign other counsel for the accused; and thereby to bind the defendant for the payment of additional fees. The first assignment of coimsel exhausted the magistrate’s authority under the 17th section of the Act of 1855. See Acts of 1855, p. 152.

As there was no contract between plaintiffs and defendant; and as the magistrate was without authority under the statute to make an additional assignment of counsel, the first still acting; and as there has been no ratification or approval by the defendant, of the act of the magistrate in retaining the plaintiffs in the defence of the prosecution; there is no legal ground on which the present action for the recovery of compensation can be maintained.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that the plaintiffs’ demand be rejected, with costs in both courts.


author: Merrick, C. J.

text:
    C. B. Richardson v. D. L. Morgan, Collector, et al.
    An assessment for levee purposes is not a tax within the meaning of the Article 123 of the Constitution of 1852.
    APPEAL from tlie District Court of tlie Parish of Carroll, Farrar; J.

      A. De Fh'ance and W. G-. Wyley, for plaintiff and appellant. H. Short, for Board of Levee Commissioners.
   Merrick, C. J.

This case cannot be well distinguished from the case of Samuel Templeton against tlie same defendants just decided.

In addition to the points made by counsel in that case the plaintiff says: “But the Act of 12th March, 1869, authorizes the assessment of a specific “tax of ten cents an acre on all lands in the levee district, and besides, “an indefinite ad valorem, tax on all the property in the levee district, including lands.”

“The Board of Levee Commissioners claim from plaintiff in this suit a “specific tax of ten cents per acre and an ad valorem tax of six hundred “ tier cent, on the State and mill tax. They besides claim a special loan “taxunder the act of 19th March, 1869, of five per cent, per acre and “seventy-five per cent, on the State and mill tax.”

“ Thus the land of plaintiff is taxed twice; first specifically, then by “ an ad valorem tax equal with other species of property. This is, “counsel proceeds, in plain violation of Article 123 of the Constitution “of 1852, which provides that “no one species of property shall be “taxed higher than another species of property of equal value on which “taxes shall be levied.”

This presents in another form the same question considered by this court in the cases of Yeatman v. Crandell, 11 Ann. 220, and The Draining Co., same vol. p. 372, and Walace v. Shelton, 14 Ann. 498. A majority of the court sees no reason to depart from those decisions which have occupied so much of our attention.

It is ordered, adjudged and decreed, that the judgment of the court below be reversed; and it is now ordered, adjudged and decreed, that the defendant, Daniel L. Morgan, Collector of the levee tax, be perpetually enjoined from selling the said lands seized under said order of seizure and sale, at the office of the Board of Levee Commissioners, at said town of Providence, in said Parish of Carroll. And it is further ordered, adjudged and decreed that said Board of Levee Commissioners, the defendant herein, do have and recover judgment upon the reconventional demand against the plaintiff, C. B. Richardson, for the sum of $422 36, for the general levee tax for the year 1869, and for the further sum of .$74 12, special loan tax, with interest on each of said sums at the rate of eight per cent, per annum, from the 22d day of October, 1859, until paid. And it is' further ordered, adjudged and decreed, that said debts and interests operate as a first lien and privilege upon all the lands of said plaintiff within said levee dis-triot, ill tlie parish of Carroll, from said 22d of October, 1850. And it js further ordered and decreed, that it be referred to the said Daniel L. Morgan, Collector of the leyee tax, or his successor in office, to sell said lands or so much thereof as may be needed to pay said debts, interest and the costs hereafter mentioned, without the benefit of appraisement, and according to the third section of the Act of March 12, A. D. 1859, entitled, “An Act to amend an act entitled, an Act to amend an Act forming a Leyee District, composed of the parishes of Carroll, Madison and Catahoula, for the better protection of the same from inundation; approved the 18th of March, 1858,” and also in other respects according-to law. And it is further ordered and decreed that the defendant, the Board of Levee Commissioners, pay the costs of the incidental demand of injunction and the costs of this appeal, and that the other costs of the lower court be borne by the plaintiff, and paid out of the proceed:-, of the lands to be sold.

The judgment of the lower court is rever wl, and judgment will be entered in the same terms as in Templeton's case for $422 36, the general levee’tax, and $74 12, the special loan tax, with eight per cent, interest on each sum from the 22d day of October, 1859. The costs of the appeal and injunction to be borne by the Board of Levee Commissioners, and the other costs of the lower court to be paid by plaintiff.

Land, J„, absent,


author: Mbbbiok, C. J. Voorhies, J.,

text:
    J. N. LeBlanc v. Pittman & Barrow.
    It is the sum demanded and not the amount of the judgment rendered which gives this court jurii diction.
    A plaintiff may remit a portion of his demand before judgment, even with the design of depriving th Supreme Court of its appellate jurisdiction.
    }n all matters not api>ealable, the inferior courts are 2>resumed to have decided according to law, an such judgments cannot he distinguished, as to their validity, from those of this court.

      On a re-hearing• — Where this court has jurisdiction for one purpose it has for all facts embraced i the record.
    Every proprietor whose levee shall have been broken by his own neglect to comply with the provision of the 25th section of the Act of 1859, p. 91, shall be liable towards the planters who shall suffer b it, for all damages and losses.
    Vooriiies and Duffel, Judges, dissenting.

    The general rule is that a party may, at every stage of the proceedings, previous to the rendition of tl judgment, discontinue the suit. In jury trials this motion may be made until the moment when tli jury is about to withdraw.
    Where the amount sued for was over $300, but before judgment was rendered in the lower court, tl plaintiff entered a remillilur, which reduced it loss than that amount — Ifeld: that an appeal in such, «ise should be. dismissed, it. not being appealable in amount.
    Appeal from tlie Fifth District Court of Assumption, Momcm, J.

      Adam, Beatty ancl Louis Bush, for plaintiff. Ilsley & Belehe and G. JRoselius, for defendants and appellants.
   Mbbbiok, C. J.

There is a motion to dismiss the appeal in this case. Before the verdict was taken in the lower court, the plaintiff moved 1 amend his-petition by l'emitting sewn bundled and ten dollars oí bis demand of one thousand dollars. But be was prevented from making the amendment by the objection of the defendants, which was sustained by the court, and the plaintiff excepted. The jury found a verdict for §800. Thereupon the plaintiff entered a remittitur for all except §299, for which judgment was rendered.

The appellee contends that the matter in dispute is under three hundred dollars, and therefore the appeal must be dismissed.

It is well settled that it is Hie sim demanded, and not the amount of the judgment rendered, which gives this court-jurisdiction. 2 An. 167; 12 Rob. 178; 1 L. R. 246.

If wo look to the pleadings, the proper criterion, in order to ascertion what is the amount in controversy, we find that the plaintiff’s demand is for §1000. On this demand, the jury rendered a verdict of §800, and after the remittitur, a judgment for §290 was rendered against the defendants. Hence they appeal from a subsisting demand of one thousand” dollars as it appears by the pleadings.

But it is said that the court manifestly erred in refusing the amendment, and therefore the plaintiff ought not to be prejudiced by the erroneous ruling of the District Court.

The reply to this is, that the question is one of jurisdiction; and in order to ascertain whether or not we have jurisdiction, we must take the record as we find it, and not as it would have been if the District Court had accorded to the plaintiff all his rights. For we cannot pronounce judgment upon any part of the record without assuming jurisdiction; and to say that the District Court ought to have allowed the amendment, ' is to say that we have examined the bill of exception, and are of the opinion that the District Judge erred.

The motion to dismiss must therefore be overruled.

The next question is, what disposition shall this court make of the case?

We have come to the conclusion to remand the case with directions to the District Judge to allow the amendment. It may imply a doubt on the part of the plaintiff of the validity of his claim, but we know of no law which prevents him from remitting a portion of his demand before judgment, even with the design of depriving the Supreme Court of its appellate jurisdiction. In all matters not appealable, the inferior courts are presumed to have decided according to law, and such judgments cannot be distinguished, as to their validity, from those of .this court.

¡ It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, with instructions to permit the plaintiff to file said amended petition; and it is further ordered that the plaintiff pay the costs of the appeal.

Land, J., absent.

Same Case — On a Re-hearing.

The plaintiff has applied for and obtained in this ease a re-hearing, and he insists upon two grounds for setting aside our former decree.

First. That the appeal should be dismissed, and

Second. That if the case be remanded, it should be remanded at defendant’s costs.

On the first ground it is urged that there was no serious demand for more than two hundred and ninety dollars. It does not appear to us that the plaintiff who filed a petition demanding $1000, and who obtained a vérdiet for $800, can successfully maintain that the demand is not serious quoad the defendant for a sum over $300.

By reference to the petition, the answer and minutes of the court, which compose the record, so far as the test of the matter in dispute at the time of trial is concerned, it is shown, that when the verdict of the jury was given and the judgment of the court was rendered, the demand was for $1000. As the record then stood, the plaintiff might have demanded, and risking a new trial, taken judgment for eight hundred dollars, notwithstanding his previous offer to amend by reducing his demand. If the judge erred, it was an error which might have been prejudicial to the defendant, as well as the plaintiff. This demand in the petition cannot be considered a purely fictitious claim wrought for the purpose of giving the Supreme Court jurisdiction. Whatever the plaintiff may now say, his demand was a real one when brought and when passed upon by the jury. And it has not yet leen reduced on the record to a sum below three hundred dollars, and cannot be reduced to have a retro-active effect until the decision of the District Court on the interlocutory question is considered and overruled, which is an examination of the case here on the merits. We are not therefore satisfied that there was error in our former decree sustaining the jurisdiction of the court.

On the second ground, we considered that the case ought not to be remanded at the cost of the plaintiff, for non constat but the judgment of the lower court might be right, and the plaintiff might be entitled to a final judgment on the merits. And we concluded further, that having jurisdiction for one purpose, we had jurisdiction for all, and that the-case, in justice to both parties, ought to be examined on the merits.

We have, therefore, given the case the examination which the questions on the merits demand.

The plaintiff resides, as he alleges, on the left bank of the Bayou La-fourche, about 28 miles from Thibodeaux, and there cultivates a small tract of land. The defendants, who cultivate a plantation some distance above, also own two tracts of wild land on the same side of the bayou, about thirty-five miles below Thibodeaux, that is, about seven miles below the plaintiff’s land, and fronting on the bayou.

In 1856, there were two periods of high water, in which crevasses occurred on the uncultivated property of defendants, during the last of which some damage was done to the plaintiff’s crops from the water which flowed through the crevasses on the lands of defendants and others in that vicinity.

The petition charges want of care, and wilful and culpable negligence on the part of defendants. The record is very voluminous, but the view we have taken of the case makes it unnecessary to consider more than a single point presented by the testimony.

The case rests upon the 25th section of the Act of 1829, p. 91, which is in these words, viz, “Every proprietor whose levee shall have been broken by his own neglect to comply with the provisions of this Act, shall be liable towards the planters who shall suffer by it, for all damages and losses, agreeably to articles 2294 and 2295 of the Civil Code, under the head of offences and quasi-offences.”

The proof shows that the defendants, in the fall of 1855, put their levees in good repair, so that the same were accepted by the inspector^ who gave his certificate to that effect.

Again, when during the first rise in 1856, a single crevasse occurred upon one of the tracts of land, the defendants sent hands to close the same, and they were kept at the work until they were sent home by the levee inspector. During the second rise the defendants kept the proper number of hands upon the place to watch the levees, and when they broke a second time they sent their force from their plantation, some distance above, to close the same. Wé can see no want of care on the part of the defendants. They obeyed the instructions of the levee inspector, and they are not bound for any error or misdirection of this officer, made in good faith in the lawful discharge of his duties.

Again, crevasses on six other plantations in the immediate vicinity of defendant’s lands; and it is shown that from natural and artificial causes the bayou Lafourche below Lockport has not capacity, with any ordinary levees which can be made, to carry off at this point the water which enters from above. The subject has given the public authorities solicitude, and from accurate measurements of the volume and velocity of the amount above and below, it is demonstrable that the bayou has not one half and scarcely one third of the capacity at this point it has atDonaldsonville, and it is made sufficiently certain that levee at this point below Lockport can never withstand the volume of water which will be thrown upon them by any considerable rise of the Mississippi, until either the Lafourche is partially closed at Donaldsonville, or a new system of levees of enormous magnitude is devised.

The more rapid current is sufficient to keep the channel open above and to hold the earthy particles of the water of the Mississippi in suspension. At this point the current is not so swift, and hence there is a constant tendency to make deposits of sand from islands and All the channel of the bayou. , As a consequence of the change of the current from an inclined to a more level plane, in every high water the levees give way and this part of the bayon is relieved by a great number of shallow outlets formed by the crevasses.

On the whole, we see nothing in the record which can maintain the judgment of the District Court in this case.

It is therefore ordered, adjudged and decreed, that the judgment heretofore pronoimced by us be set aside, and it is now ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant, with the costs of both courts.

Voorhies, J.,

d-mmtmg. After closing his evidence, and before the defendants had commenced adducing their proofs, the plaintiff moved, in the court below, to discontinue his demand, so as to reduce the amount claimed to the sum of ©290.

On the defendants’ objection, the District Judge overruled the motion. The plaintiff thereupon took a bill of exception, to which he appended his amended petition.

The general rule is, that a party may, at every stage of the proceedings previous to the rendition of judgment, discontinue the suit. In jury trials, this motion may be made until the moment when the jury is about to withdraw. After the withdrawal of the jury, the plaintiff is no more at liberty to dismiss his demand; and the verdict, whatever it be, is binding upon all the partios. C. P. 491, 532.

There was error, consequently, in the refusal to allow the plaintiff to file his amended pietition. This error has been recognized in our former opiinion; and, indeed, it is yet conceded.

But one course of two can be pursued: to give effect, in this Court, to the plaintiff's motion; 'or remand the cause to enable him to exercise his legal right in that respect.

If effect be given to the plaintiffs demand, without remanding the cause, by treating the amended pietition as filed at the time it was offered, then the pleadings show a case which does not involve an amount exceeding three hundred dollars. Hence, a dismissal of the appeal.

If the case be remanded to save the amended pietition formally filed in the court below, once this is done, the pleadings will again show on their face that the case is not apipiealable.

Under both hypiotheses, whatever the evidence, the Court could not, without ignoring the bill of exceptions, render judgment in favor of the plaintiff for more than ©290, even were there conclusive proof for a larger amount.

I conclude, that we have no jurisdiction in the premises, and that this appeal ought to be dismissed. 14 An. 114; 2 An. 136.

Dueeeu, J., concurs in the above opiinion.