author:
Buchanan, J.
     Ogdeít, J. Slidell, O. J.,

text:
    Black v. The Carrollton Railroad Company.
    The plaintiff’s son, a lad of fourteen, a passenger in the cars of the Carrollton Railyo.ad ^Company, had both legs broken by the upsetting of a car. The accident was caused by the -negligence of a servant of the company. Held:

    1. It is an implied condition of the contract of Railroad Companies with each passenger, that he shall not be put in jeopardy of life or limb, by any fault — even the slightest — of the servants of the company.
    2. Under Article 1928 of the Civil Code, paragraph 8, it is competent for the jury to assess heavier damages than the actual pecuniary loss proved.
    3. In an action by a father against a Railroad Company for damages to his minor son, received in consequence of the negligence of defendant’s servant,'it is competent for the jury to take into consideration not only the charges_for medipjil attendance* jjicluding medicines and -nursing,.but the loss arising from the neglect of plaintiff’s businesstauring his son’s illness. It is competent for the jury to take into consideration also, the prospective loss to the father likely to arise from the crippled state of his son.
    4. But the jury, cannot, in such a case, take into view the slwjclc to parental feelings, in consequence of the injury to the child, and assess vindictive damages in favor of the parent — such damages being recoverable only by those who, in their own proper persons, are victims of the misconduct of the servants of such companies.
    5. Bor the damages suffered by the child himself, the father could, by virtue of the paternal authority, have brought an action for the child’s use.
    The civil action for offences and quasi-offences is given by Article 2294 of the Code. This article designates the purpose and limit of the action. It is simply reparation — a just and adequate compensation to the plaintiff for the-injury received by him from defendant. It suggests no idea of revenge or punishment. Nor is there any thing in the Code or settled principles of our law, which sanctions punitory, vindictive, or exemplary damages. Where the immediate sufferer is plaintiff, as he -is to be indemnified, every circumstance tending to his injury, whether in mind, body or estate, maybe taken into view; but considerations cannot be entertained which do not relate to the consequences of the injury to the sufferer. The true issue in the action is the guilt of the defendant, and the damage it did to the plaintiff. Criminal punishment is not to be inflicted in a civil action. Slidell^ C. J. dissenting.

      For discussion of the doctrine of offences and quasi-offences, see the dissenting opinion of ¡SHdell, C. J.
    " C. 0. 251, 207, 1928, 2291.
    HIS case was tried by a jury, before the First District Court of New Or-JL leans, Larue, J.

      Goold and B. Hunt, for plaintiff:

      Butterfield v. Forrester, 11 East, 60. The plaintiff was riding along a road, at a furious rate, and fell against an obstruction, negligently left upon the road by the defendant. Lord Ellenborough said: “ Two things must concur to support this action. An obstruction in the road by the fault of defendant, and no want of ordinary care to avoid it on the part of plaintiff.”
    And in Bridge v. Grand Junction Bailway Company, the point was presented as a question of practice, and Lord Abinger said: The negligence of the plaintiff, in order to preclude him from recovering, must be such as that he could, by ordinary care, have avoided the consequences of defendant’s negligence. 3-Mason & Welbsy, 247-
    In Bams v. Mann, 10 Mason & Welbsy, 545*. The defendant negligently drove his horses and wagon against and killed an ass, which plaintiff had left fettered in the highway, and which could not get out of the way. Baron Parke said : “Although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of a road.”
    In Sills v- Brown, 9 Carr. & Payne, 601: The plaintiff’s barge, which was collided by the defendant’s brig, and much injured in consequence of the projection of the brig’s anchor, Justice Coleridge laid down the true rule by saying ; “ The position of the anchor will not be sufficient to make the defendant liable, if the plaintiff, by his servants, substantially contributed to the occurrence of the injury — not to its amount, but to the occurrence of it.”
    • In Baisni v. Mitchell, idem. 613 : The jury found there was some fault on both sides, and being asked by Chief Justice Tindal, if they had considered the whole matter, the foreman replied in the affirmative. Then the defendant’s counsel claimed the verdict; but the Judge said, “ no — there may be faults to a certain extent” Of course, his language meant, that the jury having considered the facts on both sides, had, by giving plaintiff a verdict, substantially found that the fault on his side had not tended to produce the injury.

      Smith et al. v. Dobson, 3 Mann & Gragn, 59, (E. C. L. 40,) was a case of collision. The plaintiff’s barge was sunk by defendant’s steamboat. The plaintiff’s vessel, it was contended, was insufficiently manned, the barge overloaded, badly trimmed, &c., and that, therefore, the plaintiff was in fault. The Lord Chief Justice instructed the jury, that the plaintiff could not recover, if the misconduct of his servants or the insufficient manning of his barge had contributed to the loss. In returning a verdict, the foreman stated they considered the blame not attributable to defendants alone, and that the barge was 'not properly trimmed.
    On a motion for a new trial, it was claimed that the verdict should have been for defendant, as the jury found there had been fault on plaintiff’s side. But the court was unanimous in refusing to disturb the verdict, considering that the jury had kept in view the amount and nature of the plaintiff’s fault, and that it had not tended to produce the injury.
    In Greenland v. Chaplin, 5 W elbsy, Hurlstone & Gordon, 243, was a case of collision. The foregoing cases were cited with approbation. Pollock, O. B., said: “I entirely concur with the rest of the court, that a person who is guilty of negligence, thereby producing injury to another, has no right to say, ‘Part of that mischief would not have arisen if you had not been guilty of some negligence.’ I think that where the negligence of the party injured did.not, in any. degree, contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action,” &c.
    In Beers v. Housatonic B. B. Company, 19 Conn. 566, the court went even further, and said : “ The plaintiff is bound to exercise reasonable and ordinary care; and in determining whether there has been such want of proper care, the circumstances of the case, such as the tender ago of the plaintiff, should be considered; and if the plaintiff is a child without'ordinary judgment or discretion, and conduct, on his part, which provoked the injury, was the result of childish instinct, which defendant might easily have foreseen, the latter would, in that ease, be liable for his own negligence, though the act of the plaintiff co-operated with it.” See Búge v. Gardner, 19 idem, 507.
    The defendant pretends that the plaintiff can recover nothing on behalf of his son, and that the relief must be restricted to indemnity for his mere outlay in obtaining the child’s cure. It was said that if plaintiff should recover, even then his son would be entitled to an action.
    But who is to bring this action? Can a minor bring a suit ? We will quote no law to prove this to be impossible. Then his tutor or his parent must bring it. But he can have no tutor if his parents be alive. Upon the death of both parents a tutor is to be appointed. Upon the death of one of them the survivor occupies this relation to him. O. 0. 268.
    “In our judgment, there can be no tutor to a child while the father and mother are alive.” Acosta v. Botin, 7 N. S. 888.
    “During the lifetime of both father and mother, tutorship is unknown to the law, minor children, during that period, being exclusively under the paternal authority.” State v. Parish Judge of Orleans, 6 L. R. 365. Handy, Under-Tutor, v. Parkison et ais., 10 L. R. 98.
    “Bathers and mothers shall have, during marriage, the enjoyment of their children’s estates until their majority or emancipation.” 0. 0. 239.
    “ Bathers and mothers owe protection to their children ; and, of course, they may, as long as their children are under their authority, appear for them in court in every kind of civil suit in which they may be interested,” &e. Idem, 251.
    “ The father is, during marriage, administrator of the estate of his minor children.” Idem, 267.
    These citations make it clear that no one can appear in court to prosecute any claim, in reference to this lad, except the plaintiff, Charles Black, his father. If this lad had been guilty of an act of mischief, by which the property of the company had been injured, would the latter have an action against the child to repair the damage? Certainly not. His father would be answerable, and an action would, lie directly against him. A minor cannot be sued. Cleveland y. Mayo, Tutor, 19 L. R. 417. “The father, or, after his decease, the mother, is responsible for the damage occasioned by their minor, or unemancipated children residing with them, or placed by them under the care of other persons,” &c. O. C. 2297.
    If the plaintiff must pay the damages his son may occasion, he has a right to collect such<lamages as may be occasioned by an injury to his son. The construction defendant gives to our laws on this subject, is too grossly unjust to be admitted for a moment. This interpretation is a virtual refusal of all . relief to a minor who may be maimed for life.
    1. It is said the plaintiff cannot maintain the action.
    2. The law distinctly says the minor cannot bring the action,
    3. Ergo — Nobody can bring the action.
    The common law authorities, referred to by defendants, concerning the right of a father to sue have no bearing on this case. By that system it is said that a father can recover nothing beyond his actual outlay in such cases. This is accounted for by the fact, that by the principles of the common law, the father is not bound to pay for his child’s maintenance, and should, therefore, not recover damages for an injury done his child. The father, by the common law, is obliged to support only such of his children as may by accident, youth, or disease, be disabled from work, whereas, by the civil law, the father is compelled, absolutely, to support his offspring. Blackstone, vol. 1, p. 449, says: “ No person is bound to furnish a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident, and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20s. a month.” See Lecture XYI,
    “ A third person, who supplies an infant with necessaries, cannot maintain an action against the parent therefor, unless the latter has expressly or impliedly contracted to pay the amount, there being no legal obligation on the parent to support his child independent of the statute provisions,” Raymond v,Lloyd,
      jo Barbour, 483. See Dennis v. Ciarle, 2 Cushing, 847, and authorities in Vrmston v. Newcomen, 4 A. & E. 899. Tucker’s Com. vol. 126.
    The technical action per quod servitiwn amisit is unknown to our law. Art. 3928 of the Code comprehends all injuries to which a person maybe subjected. The law presumes and will admit no contradiction of the presumption that the sum awarded as damages for injury to the son, will be properly guarded and appropriated by the father. The natural impulse must be trusted, and a recovery by the father is a recovery by the son.

      Garnett Duncan and Beiyjamin & Micou, for defendant and appellant:
    The court instructed the juiy that appellant was bound at all times to have its road in a safe and good condition, so as not in the slightest degree to endanger the lives and limbs of passengers, and to avail themselves of all the discoveries of science, or the knowledge derived from experience.
    This charge requires a railroad to be kept free from any and every possible casualty. The degree of knowledge and care thus demanded, is not that of a prudent and skillful person; but the utmost possible amount of human knowledge and care, and makes a railroad substantially a warrantor against all possible casualties, instead of charging it for neglect. '
    Under this instruction, the jury was obliged to give plaintiff a verdict, because they were not left free to find that this was a mere accident, not occasioned by'neglect.
    II. The defendant asked the court in substance to charge that this was a suit of the plaintiff for the damages ho had sustained, and that it was not’a suit in behalf of the son for damages the son might have sustained.
    That it would not and did'not prevent another suit in behalf of the son, and that the plaintiff in this action could only recover the special damages which he had .alleged and proven.
    All of these instructions should have been given. They were all refused. Oil the contrary, the court instructed1 the jury,-that an action on behalf of the son was barred by prescriptions.

      Non lieuit, that there was not such a suit pending in some other court, and although such suit might be barred-- by prescription, it was not barred by this suit,-which was the point asked.
    The court went further, and instructed the jury that they might estimate as the damage, the probable loss, past and prospective,, to the plaintiff.
    We submit that this was calculated to- mislead the jury, and to make them assess in this suit, not only damages sustained by both father and son, but beyond that also, the probable prospective loss.
    Actual damages sustained by the plaintiff,-we understand to be the true rule.
    III.- These instruetionsvfully account for the verdict-; for if the probable prospective loss of the son, and not the actual damage sued for by the plaintiff, had'to be estimated, the damages may not be so excessive as to call for a reduction. But if the converse of the proposition- is the true rule, then the damages are clearly excessive.
    IV. What, then,, is this suit? Whose suit is it?
    We submit the plaintiff could not in this same suit represent two different persons for such a cause of action as that set forth,, and if he could, ho has not by this petition attempted to do so.-
    “ Charles Blade" (not Charles Blade, Tutor,. &c.,)<alleges that defendant is indebted to him in the sum of $26,000.
    He alleges that his son was vigorous, c%c.,- and had recently declined a salary, and was every day becoming more and more useful to his-parents, and gave promise of repaying his parents for their care, &c.; that plaintiff is a commis-sion merchant; that by the neglect of defendant,- the plaintiff had been deprived of the services of his son, and compelled to-lay out and expend $1,600 in furnishing medical and surgical aid and necessary attendance on him.
    This petition is aptly drawn for per quod sermtium amisit. It has all the appropriate allegations and characteristic marks of a suit, not on behalf of the son, but for the damage of the father. It is not for general damages,- as it would have been if on behalf of the son, but for the special damages which the father had sustained.
    It does not belong to the class of actions in which the law implies that this plaintiff sustained damage by the negligence complained of; and therefore it was necessary for the plaintiff, as he has done, to set forth with particularity-the resulting damage. 9 Coke’s Reports, 113.
    The special damage is the gist of the action, and must be averred and proven. 1 Chitty, 46, 47, 386, 387, 389. 3 Bl. Com. 142.
    Under the alia enormia, he cannot give evidence of any such special damage. Chitty, 388.
    See also 2 Chitty, 268, note —; 261, note Y; 248,, note 0 378, note V ; 374, note 0.
    This special damage must accrue before acti'on brought. 1 Chitty, 390. 2 Chitty, 261. 2 L. Ray, 1382.
    By our own Code, we find (0. C. 263) that the father, during the marriage, is the administrator of his child-’s-property, and by 268,. that he becomes 'tutor by nature after his wife’s death.-
    By Arts. 238, 240, 243, and 246, the father is1 bound to support his child, and, therefore, the medical and surgical bills alleged, and the attendance of nursing the son, were legal charges against the father, which he could recover in a suit in his own name.
    As to the $25 a month, which the son was offered, but not' contracted for, it would have belonged- to the son.- C.- C.- 242, shows that the father would not have had even a usufruct therein.
    There must be allegata as well as probata, and there can be no recovery on the proof beyond the allegations. AYhat, then, is the extent of damages alleged and proven ?
    The petition alleges that the medical and surgical aid and the attendance, amounted to $1,500.- Plaintiff has offered proof to the full amount of this allegation, and possibly more. On this head, therefore, he can be allowed $'1,500 only.
   Buchanan, J.

The plaintiff’s son, a lad of fourteen, a passenger'i'n th'e defendant’s train, on its regular trip from Carrollton to New Orleans, had both legs broken by the upsetting of a railroad car. The accident was caused by the switch being out of place. The switch tender was not at his post, or the accident would not have happened. H'e was' a servant- of the defendants, and they are liable for the consequences of his negligence.

This action is for damages resulting from this railroad accident, to the father of the wounded boy; and the legal question is presented for'ohr consideration, what damages can be allowed-to plaintiff,- as distinguished from his son, who is no party to the cause, neither fs any thing claimed therein for his use and benefit. The argument of the learned counsel of defendants would Confine the plaintiff’s cause of action to the pecuniary loss proved' to have been actually incurred previous to the institution of the suit; but we do not understand the measure of damages,-under the legislation of Louisiana, to be so restricted. The Article 1928 of the Civil Code, paragraph 3, enacts that, in the assessment of damages in cases of offences; quasi-offences and quasi-contracts, much discretion must be left to the Judge or jury. Under this rule, it was competent for the jury to find more than the actual pecuniary loss proved.

That loss seems to have been composed of two items — the charges for medical and surgical attendance, including medicines and nursing — and the neglect of plaintiff’s business for two months and a half, during his son’s illness. We are of opinion, that the jury could properly take into consideration also, the prospect in loss to plaintiff^ likely to ari’se from the crippled state of his son, which rii'ay render him a burden t'o his father, during a period when he would, were it not' for accident, be able to provide for his own support, if not to succour and assist his father. The actual damage proved, does not fall short of twenty-five hundred dollars; and the prospective probable damage may reasonably be estimated, under the evidence, at twenty-live hundred dollars more.

In the view that we have taken of the measure of damages applicable to the defendants, as regards the plaintiff in this action, the verdict of the jury, ten thousand dollars, appears excessive. The jury seems to have taken into view, the shock to the parental feelings, and the solicitude and anxiety of the parents of the sufferer, which must be supposed to have been the consequence of the grave injuries and protracted convalescence of their child; and which are declared upon by plaintiff as elements of damages. But we are not disposed to admit the soundness of a doctrine, which would extend vindictive damages to a case like the present. We carefully note the distinction between the immediate sufferer from á railroad accident, and a relative of the sufferer, however-near may be that relation. The subject is one of great, and of increasing, importance in our country, where railroad communication is so largely developed. Railroad companies are a species of common carriers, of comparatively recent date ; yet their engines have already superceded the more tardy and less powerful vehicles of the past generation, upon all the great thoroughfares of the land. It is therefore of groat public concern that the measure and extent of the liabilities of railroad companies should be determined with precision. They ought doubtless to be held to accountability for the misconduct of their servants. Like all corporations, they can only act through servants or agents. More than almost any other kind of corporation, their corporate business subjects them to the risk of accident. It is a duty which such a company owes to the public, to make velocity of locomotion compatible with safety, so far as this can be effected by prudence and skill. It is, moreover, an implied condition of their contract with each passenger, that the latter shall not be put in jeopardy of life or limb, by any fault, even the slightest, of the servants of the company. The sentiment of responsibility will be found the greatest safeguard against abuses ; but at the same time that we are disposed strictly to enforce that responsibility, we deem it advisable not to extend the right to recover vindictive damages, to others than those who, in their own proper persons, are victims of the misconduct of the servants of a railroad company. Were this suit prosecuted for the behoof of tlfe mutilated individual himself, it is possible we would not think the verdict of the jury too high. In that case, the bodily pain and suffering, the deformity of person, the diminished capacity of laborious exertion, might reasonably justify damages of the class called vindictive or exemplary; the standard of which is, of necessity, exaggerated beyond the limits of an exact arithmetical appreciation — being, as the title imports, in the nature of a penalty and of an example — partaking of the character of public justice, while redressing a private wrong. It may be well supposed that the mutilation of a healthy and promising boy, the pride of his parents, and the example of his schoolmates, such as the petition describes the plaintiff’s son, has excited feelings of keenest anguish in the breast of his relatives, and of the most painful sympathy in many who were not endeared to him by the ties of kindred. But we do not understand the object of the law to be, the punishment of an offending party for having been the cause of unpleasant emotions in the family and acquaintances of the party offended ; and this, in the form of a pecuniary compensation, to the relative or friend thus affected. Were such the law, the consequence of an offence to the offender, would be greater or less, in proportion to the larger or smaller circle of friends of him who has been offended. This would bo, obviously, to misplace the aim of public justice.

Upon these considerations, we think it proper to reduce the verdict in this case, in conformity to the estimate above expressed.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that plaintiff and appellee recover of defendants and appellants, five thousand dollars damages, with interest from 12th of March, 1852, date of the judgment appealed from; the cost of the court below to be borne by appellants, and those of appeal by appellee.

Ogdeít, J.

The importance of the principles involved in this case induces me, while concurring in the judgment pronounced by Mr. Justice Buchanan as that of the majority of the court, to express my own views of the law. There is no ground, I think, for questioning the plaintiff’s right of action.

The defendants are responsible in damages and the only question is as to the quantum of damages and the principles 'which ought to govern in making the assessment.

In actions of this nature, our Code has declared that much discretion must be loft to the Judge or jury. That discretion must doubtless be a sound discretion, but there are no fixed and precise limits within which it is to be exercised. The amount of damages must depend on the facts and circumstances of the case, the discretion must be exercised as well with regard to those circumstances as with regard to to general principles. Sedgwick on Damages, p. 26. Among those general principles, I recognize under our law the right of assessing what are called exemplary or vindictive damages. The Article 1928 of the Civil Code, paragraph 3d, speaks of a class of cases in which damages may be assessed without calculating on the pecuniary loss, or the privation of pecuniary gain to the party. Examples of this rule as applicable to contracts are given in which damages are allowed, although from their nature they are not appreciable in money, and under the same rule are classed cases of offences, quasi-offences and quasi-contracts, in which it .is stated much discretion must ■ be left to the Judge or Jury, “ while in other cases they have none, but are bound to give such damages under the above rules as will indemnify the creditors,” &e.

We have, therefore, the sanction of express legislation in this State for the rule which has so long existed at common law, and which has so long been acted on in England and in the United States, of allowing exemplary damages for personal wrongs and injuries. Chief Justice Kent in the case of Tillotson v. Cheetham, 3 J. R. p. 56, says, “Surely this is the true and salutary doctrine. The actual pecuniary damages in actions for defamation, as well as in other actions for tort, can rarely be computed and are never the sole rule of assessment The rule, he says, is too well settled in practice and is too valuable in principle to be called in question. The same doctrine has been recognized by the Supreme Court of the United States in cases of marine trespass. Judge Stoiy, in the case of the Amiable Nancy, 3 Wheaton, p. 546, says, “ If this were a suit against the original wrong-doer it might be proper to go yet further and visit upon them in the shape of exemplary damages, the proper punish- ment which belongs to such lawless misconduct.”

In our own jurisprudence, this has been considered a well settled principle. In actions of slander, such has always been held to be the rule. Caulin v. Stuart, 2 L. R., 76. Daly v. Vanlbenthuysen, 3d Ann., 69, and it can not be doubted that the same principles govern all actions for damages founded on a personal wrong or injury done to another. The damages in such cases not being susceptible of exact computation are nevertheless assessed according to the sound discretion of the Judge or Jury, and if there are circumstances of aggravation in cases of offences or of gross negligence in cases of quasi-offences, it is quite proper in assessing the damages to adopt the rule laid down in Sedgwick, of blending together the interests of society and of the aggrieved individual and allowing such damages as would save to prevent the repetition of such conduct.

This wholesome rule is one of the most important safe-guards of society and it would he dangerous to abandon it.

The verdicts of juries in actions of this nature inspire a salutary dread, for the reason that their discretion in awarding damages is not limited by any precise rules, and this is calculated to secure vigilance, care and circumspection among those who have the management of railroads, steam vessels and other public conveyances, which would not exist without it.

In the present case the damages are assessed by us only at what, under all the circumstances, it may be fairly presumed from the evidence, was the actual and should he the probable prospective loss sustained by the plaintiff.

Slidell, O. J.,

dissenting. The son of the plaintiff, a boy of fourteen years, was a passenger in the railroad train of the defendants. A switch being left partly open, which under the evidence must be considered matter of negligence on the part of the defendants, the cars were thrown off the track, and the child suffered grievous bodily harm, which has occasioned great expense and mental suffering to his father, and will probably render the child during the rest of their lives a burden to the parent. The action is based solely on allegations of damage suffered by the father, and which are laid at a total sum of $25,000. The only item specifically laid is $1500 for medical and surgical expenses and necessary attendance. The petition contains general averments as to the father’s loss of time, mental suffering, the disappointment of his paternal hopes, with regard to the future of his child and the comfort and aid he expected to derive from his society and the fulfilment of his filial obligations.

We are not aware of any precedent in our reports of such an action by a father. Our first enquiry is how far such an action will lie under our laws and jurisprudence.

The mei\e letter of the 2294th Article of our Code is extremely comprehensive and unqualified with respect to the right of action for damages arising from offences and quasi-offences. “Every act whatever of man that causes damage to another, obliges hjm by whose fault it happened - to repair it.” Yet in general, thip article must be considered as speaking with reference to the person of the immediate sufferer; and we fhink it was properly announced by our predecessors, as the general rule, that actions for injuries to the person are personal. The case, however, of parent and child may within certain limits be justly considered as an exception, and this by reason of the particular nature of the parental relation. Under the Roman law, the right of the father to bring an action for damages for an injury to the person of his child, could have admitted no discussion. For a long time at least, under that system the father was considered as having a right of property in the person of his child, and this lyas illustrated in the law de rei vindicatione which permitted him when his child was carried away without his consent, to bring- an action of revindication, an action which could only be brought to recover possession of things of which the demandant was owner. Hence also, under that system originally the parental power of life and death, and the assimilation of children to slaves.

The paternal power had in the Roman law this general effect, that the father of a family and all those under his power as such, were by a legal Action considered, in private matters, as a single person. The consequences of this legal Action were that all that a son acquired belonged to the father, that no contract could be made nor action lie between the father and the son, and that the son could not be a witness of his father’s will. In some respects, however, from public considerations, this unity of person did not hold, as for example in the matter of the peculium castrense.

Our law has greatly softened this rigor of the paternal powers, and placed it in many particulars upon a different footing; but there are principles which can be invoked in support of the present action within certain limits, and which are expressly embodied in that part of our Code which treats of the paternal relation. The law imposes upon the father the duty of supporting the child— Article 243. The immediate and direct consequence of the injury done to the person of the plaintiff’s child has been to make the performance of this legal duty more onerous. It has imposed upon the father the necessity of incurring a large pecuniary liability for medical and surgical aid, and devoting his own time and services to the attention of his child’s sufferings at the sacrifice of his daily business. The damages thus sustained, although not sustained by the immediate sufferer, are recoverable, wo think, by reason of the legal relation and legal duty of the claimant towards the party injured.

I thinka sum of $1,500 may be allowed under the evidence for surgical and medical aid and necessary attendance.

Although clearly of opinion that the father’s loss of time in attending on his child is a legal subject for damages, I regret that I have not been able to concur in the estimate of my brethren, in consequence of the meagroness of the evidence. The point expressly made by the defendant is “ that there is no proof as to the amount of loss, and therefore none can be estimated.”

It seems to me well taken. The sole facts proved in evidence to this item are that plaintiff lost sixty-nine days of time, at a busy season of the year, and was a produce broker. There is no evidence of his daily, monthly, or annual average receipt, or even of the general extent of his business or the average receipt of persons in that calling. The allowance made by my brethren seems to imply a high average annual emolument.

There is evidence of an offer of employment for the lad at $25 per month. But if the son had accepted this employment, the wages would have belonged to him, and the father would not have had even the usufruct. “ This usufruct shall not extend to any estate which the children may acquire by their own labor and industry.” Civil Code, Art. 242.

Under our Code, children are bound to maintain their father and mother when they are in need. The duty in the present case would attach upon the happening of a double contingency which may or may not arrive, to-wit: the father’s being in need after his son’s majority, and the son’s being unable by reason of bodily infirmity resulting from this accident to contribute to the father’s support. Such considerations, perhaps, form a very questionable basis for damages by reason of their uncertainty. If, however, it be admitted that under our law, and under the very loose allegations of the petition, damages could he awarded for the prospective loss to the parent, by reason of the child’s being probably incapacitated for aiding the parent hereafter, should he be in need, still I do not think damages could be assessed on that score without the assistance of evidence not offered in this cause. In such a calculation it would be necessary to estimate the probable lives of the parent and son, on such data as would be required in calculating an annuity, and data would also be necessary with reference to the cost of annual support according to the situation in life. To leave questions of this sort to the arbitrary discretion of a court or jury, unaided by evidence tending to something like probable and practical accuracy, would in my opinion be inadmissible.

I do not think the father’s mental suffering- should be an element in the assessment of damages in his favor. This would be extending without a sufficient legal ground the exception of the general rule that actions for injury to the person are personal.

Moreover let us bear in mind the difficulty which would result from recognizing the mental suffering of the third party as an element of damage. Where is any but an arbitrary limit to be found in extending its benefit? Could an action for damages on that ground, if allowed to the father, be refused to the mother, the brother, the sister ?

The subject was recently considered in England, in an action by a widow for damages by reason of the killing of her husband, brought under the statute of 9 and 10 Viet., by which in such actions it was enacted that “ the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties respectively, for whose use such actions shall be brought.” The rule said to be adopted in Scotland of giving a solatium for the mental suffering, was held to be inapplicable to the English statute, broad and general as its language is; and the impossibility of apportioning the damages among the parties entitled to receive them, if they were based upon the mental sufferings of the parties, was greatly relied upon by the court as indicating the intention of the Legislature to confine the damages to the actual pecuniary loss of the sufferers. See, 10 Law and Equity Rep., 442. Blake v. Midland, Railroad Company.

Let it be recollected that the action of this court to-day in a suit against a wealthy railwajr company may be invoked as a precedent to-morrow against a small tradesman, who sends out a horse and cart in the care of a servant. See the remarks of Coleridge, Justice, in the case just cited. See also, the Reporter’s statement of the evidence in that case, which may be usefully consulted for the purpose of showing what data eminent counsel thought it necessary to put before the jury in such an action. '

With regard to that portion of the unfortunate consequences of this accident which involves damages suffered by the child himself, his bodily pain, the mental suffering and mortification which his crippled and deformed condition will involve, the destruction or mental injury of his prospect of future usefulness to himself, for these I think the father cannot recover in this action, which is based wholly upon allegations of damage sustained by the father. For the damages suffered by the child himself, the father could by virtue of the paternal authority have brought an action for the child’s use under the Article 251 of the Code, which says, “ Fathers and mothers owe protection to their children, and of course they may, as long as their children are under their authority, appear for them in court in every kind of civil suit, in which they may be interested.” See also, Article 267. The court therefore erred in refusing to give the charge upon this point requested, as appears by the bill of exceptions, and this misdirection destroys any value which the verdict might otherwise have as a guide in the estimation of damages.

In the above remarks I have assumed that the person injured could recover for prospective loss by reason of his bodily inefficiency caused by the accident. It is well to observe that the allowance of such prospective damages is expressly recognized in the Roman Law.

Ob hominem vero liberum occisum quinquaginta aureorum poena constitui-tur. Si vero vivat, nocitumque ei esse dicatur, quantum ob earn rem cequum judici videt'ur, actio datur. Judex enim compatare debet mercedes medicis proestitas, coeteraquc impendía, quae in caratione facta sunt; praeterea operas, quibus cancit aut oariturvs est, ob id, quod iuulis estfactus. Institutes of Justinian, lib. xv, Tit. v. De obligationibus, quae quasi ex delicto nascuntur.

Since there has been in our consultations upon this and another case now before us, some diversity of opinion as to the purpose and limit of damages for offences and quasi-offences, I have thought it proper to state the conclusion to which a careful considei’ation of the Code and commentators has brought me.

I understand by the word offence, as used in our Code, every act of a man, done with the intention of injuring another, and violating the laws or offending social order. Offences may give rise both to public and private actions. The public action has for its object to punish the disturbance of social order. It belongs to the public, is exercised in its name, and by its functionaries. The private or civil action has for its object the reparation of the damage which the offence has caused to an individual, and belongs to those who have suffered thedamage. See, Merlin Repertoire, verbo Delit. Duranton, vol. 13, No. 699.

By the word quasi-offence, as used in our Code, I understand an act by which one person without malicious intention, but through imprudence, causes damage to anothór. Le quasi-delit, says Merlin., est un fait pour lequel une personne, sans malignité, mais par imprudence cause quelque prejudice á une autre personne. It is, says Duranton, un fait illicite quinuit áautrui, mais qui a lieu sans dessein de nuire.

The civil actions for both causes is given by the same Article of our Code. “ Every act whatever of man, that causes damage to another, obliges him by whoso fault it happened, to repair it.” Art. 2294.

This Article, brief as it is, distinctly designates the purpose and limit of the action. It is simply reparation — a just and adequate compensation to the plaintiff for the injury received by him from the defendant. It suggests no idea of revenge or punishment.

In this light it is viewed by the jurists of Prance, whose Code contains precisely the same provisions — -tout fait quelconque de rhomme, qui cause á au-trui un dommage, oblige celui par la faute duquel il est arrive, á la réparer. The quasi-offence, says Merlin, imposes upon its author the obligation of repairing the damage which results from it. "Wherever the law sees an injury inflicted upon a citizen, it seeks out tho author; it enquires if it was possible for him not to have caused the injury; and when it finds on his part carelessness, or imprudence, it condemns him to the reparation of the injury he has caused. The desire of the law is to render a reparation commensurate with the injury.

Toullier speaks to the same purpose. Elle n’exige d’autro satisfaction que le dédommagement de celui qui souffre. Si la faute qui pauvait causer du dom-mage n’en a point causé, la loi n’inflige aucune peine, á moins qu’une defense de commettre Faction n’efft été portée sous une peine déterminée; car alors a peine dérive d’une desohéissance, d’une contravention á la loi.

The action for the enforcement of penalties, says Duranton, belongs only to functionaries to whom tho law entrusts that duty. But the action for reparation of damage caused by a crime or delil, can ogly be brought by those'who have suffered the damage. Yol. 13, No. 700 et seq.

The same theory of reparation is adopted by Domat. All the losses and all the damages which may happen by the act of any person, whether out of imprudence, rashness, .ignorance of what one ought to know, or other faults of the like nature, however trivial they may be, ought to be repaired by him whose imprudence or other fault, has given occasion to it.

My conclusion is that there is nothing in the provisions of our Code or settled principles of our law which sanctions what are called punitory, vindictive, or exemplary damages, in other words damages which blend together the interests of society and of the aggrieved individual. I think the damages in such actions should bo referred to the extent of the wrong done to the sufferer. Where a person other than the immediate sufferer is plaintiff, there is a further necessary limitation already noticed. Where the immediate sufferer is plaintiff, as he is to he indemnified, every circumstance tending to his injury, whether in mind, body or estate, may be taken into view; hut considerations cannot be entertained which do not relate to the consequences of the injury to the sufferer. The true issue in the action is the guilt of the defendant and the damage" it did to tho plaintiff. Criminal punishment is not to be inflicted in a civil action. .

There may unquestionably be found in our reports dieta which countenance the idea of punitory, vindictive, or exemplary damages; but casual expressions ought not to be relied upon as deliberate expositions of the law. They were probably suggested by expressions found not unfrequently in the opinions of English jurists and commentators; and their force even as exponents of the common law, will be greatly impaired in the apprehension of any one who will read the very able and learned review by Mr. Greenleaf of the English and American cases in the recent edition of his treatise on the Law of Evidence. That author, whose opinion is certainly entitled to great deference, lays down the rule in these emphatic words: “ Damages are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more nor less, and this whether it be to his person or estate.” In an elaborate note he defends this proposition, and takes occasion to express the opinion that the rule of damages as limited by the extent of the injury to the plaintiff was the same in the Roman Civil Law.

There is nothing in the Article 1928 of our Code which, rightly considered, conflicts with the above conclusion.

That Article treats of the assessment of damages for breach of contract. After announcing with qualifications and limitations the general rule that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, it observes: “yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are duo for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of the rule.” Then immediately succeds the following clause: “ In the asséssment of damages under this rule, as well as in cases of offences, quasi-offences, and quasi-contracts, much discretion must be left to the Judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor.”

Applying the rule noscitur a soeiis, and looking to the context for assistance, the intention of this clause is easily appreciated. The Code in the previous clause had treated of cases of damage where the feelings and taste are concerned ; damages from their nature not susceptible of accurate and arithmetical computations, yet for which pecuniary compensation was admissible. Quasi-offences were very properly ranged in the same category, and their compensation submitted to the sound discretion of the Judge or jury, since damages for mental anguish, or personal indignity or disgrace, &c., are incapable from their nature of any fixed rule. But the enunciation of this discretion by no means involves the idea that in the assessment of damages, the court or jury can travel beyond the enquiry how far the sufferer himself is afflcted, or exaggerate the amount for the purpose of vindicating offended public justice, or punishing the offender as an example to others. See also, McGary v. City of Lafayette, 4 Ann. 440.

        SpQftord, J., declined' taking any part in this case^RÉ!?.

        Bill of Bface$)Uon$ — kt the request of counsel for defendant, the Judge makes this memorandum of his charge to the Jury:
      1st. He read to them the 2294th, 95th, 96th, and 99th Articles of the Civil Code, to show the law relative to the liability of defendant.
      2d. He stated to the Jury that it was at all times the duty of the company to have its road in a safe and good condition, so as not in the slightest degree to endanger the lives or limbs of the passengers, and that for this purpose, they were bound to avail themselves of all the discoveries of science or the knowledge derived from experience applicable to the subject, and were under the obligation to employ sober, skillful and competent servants.
      3d. That if the Jury believed that the cars run off the track in consequence of the disarrangement of the switches, and that the switches might have been kept in proper order by having a person stationed at them, it was the duty of the company to employ such person for thatpui-posej and that their failure to do so, was one of those cases of negligence and imprudence mentioned in the Article 2295, O. C.
      4th. As to the damages, he charged that the Jury were to estimate them according to the principles laid down in the third section of Article 1928 of the Civil Code, which he read to the Jury, and the case of Hermington v. Smithero, 131 Eng. Com. Law Rep., having been referred to by defendant’s counsel; he also read the instruction of Abbott, 0. J., to the Jury in that case, and stated to them that in his opinion, it only went to the extent of denying that vindictive damages should be given, and in that he concurred. That they were bound to estimate the damages according to the principles of equity and common sense, and the probable loss past and prospective to the plaintiff if they found any damages at all.
      5th. Having been requested by the counsel for defendants to charge the Jury that if the boy Alexander, contributed to his own injury, they could not find for plaintiff — the Judge so charged them — butremarked that the being in one passenger car instead of another, could not be considered as contributing to his own injury, for he had the right to go in any of them, unless positively prohibited by the rules of the company, known and published, and the company was equally bound for the safety of all its cars, and if the Jury believed that at the moment of the accident he was not sitting in the car but standing on the step, and holding by the window, they were to take all the circumstances into consideration and consider whether such a position was not rather calculated to secure his safety than contribute to his injury under these circumstances.
      Cth. Being requested by the defendant’s counsel to charge the Jury that a recovery on the part of the plaintiff would not bar a future action in behalf of the son, the Judge said that whether plaintiff recovered or not, such action was barred by prescription of one year, and that the year had expired.


source: Caselaw Access Project

author: Vooehies, J.

license: Public Domain

text:
    G. F. Weisse & Co. v. The City of New Orleans.
    The employment of a printer by counsel to print their briefs at the expense of the clients, is a power implied from the relation of client and counsel. C. 0. 2969. But the client will not be bound to pay for a greater number of copies than the rules of court require to be filed.
    from the Fifth District Court of New Orleans, Augustin, J.

      Magne, for plaintiffs and appellants.

      Wolfe, for defendant.
   Vooehies, J.

This is an action brought by the plaintiffs to recover of the city of New Orleans the sum of $1,078, alleged to be for the printing of the two briefs of Messrs. A. Grailhe and B. JPrecmx, in the MeDonogh case, entitled: The State of Louisiana v. The City of New Orleans. The account of the plaintiffs annexed to and made a part of their petition, is as follows, viz:

Oity of New Orleans,

1852. To New Orleans Bee,

March 31. To printing brief of A. Grailhe, Esq., estate of MeDonogh, 326 pages, at $3 per page,.$978 00

Brief of B. Breaux, Esq., estate of MeDonogh, price agreed on, 100 00

$1,078 00

The defendant pleaded the general issue. There was judgment rendered in favor of the plaintiffs for the sum of $651 50, from which they have taken the present appeal. The appellee has not complained of the judgment.

The record shows that Messrs. O. Boselius, B. Breaux, A. Grailhe and Ban-dell Eunt, were employed, as attorneys and counsellors at law, to defend the interest of the cities of New Orleans and Baltimore, under the will of the late John MeDonogh. The briefs of two of the counsel, Messrs. Grailhe and Breaux, were printed by the plaintiffs. On the trial below, Mr. Grailhe testified that he considered it essential to the cause to prepare an argument. Knowing that the plaintiffs in this case were the printers for the city of New Orleans, he called upon them to have the brief printed at the expense of the city. They agreed to do it, and the same was printed by them; he did not consult the city about printing the brief, for he thought he had an undoubted right to have it printed without consulting them.; he did not make any agreement in relation to the price of the work; he always understood it was to be settled between his client and the printer. “ Three hundred to three hundred and twenty-five copies of said brief were printed.” Mr. Breaux also • testified that the case being one of great importance, after consultation with his colleagues, and especially Mr. Boselius, it was thought proper to have a brief made and printed for the use of the court. It was given to the plaintiffs to be printed for the account of the city; and in all cases where the city was interested, he always gave the briefs to be printed by the city printer, inasmuch as the Mayor and Treasurer had told him that he was fully authorized to do it, and that on his approving the bill for such printing, the same would be paid, and they have been paid, except in this case. That two hundred and fifty copies of his brief were printed at the Mayor’s suggestion. From this, it is obvious that no express authority was given by the city of New Orleans to the attorney for the printing of these briefs. The Civil Code, Article 2969, provides : “ Powers granted to persons who exercise a profession, or fulfil certain functions, of doing any business in the ordinary course of affairs to which they are devoted, need not to be specified, but are inferrred from the functions which these mandataries exercise.”

Although the right of counsel to have their arguments or briefs printed at the expense of their clients, may bo conceded as an implied power, yet we think it is clear that such power must necessarily be limited to the accomplishment of the object designed ; in other words, the client should not be taxed with the printing of moro copies of briefs or arguments than are usually required in such cases under the rules of practice. It is clear, therefore, that the defendants cannot be made liable, in the absence of any agreement, beyond such amount. It appears to us that the judgment of the District Court, in this respect, has done ample justice to the plaintiffs.

It is therefore ordered and decreed, that said judgment be affirmed with costs.


author: Voorhies, J.

text:
    Mercer, Administrator, v. Lobit & Charpantier.
    A factor who sells the crop of a succession in course of administration, cannot retain the proceeds to compensate a debt due him by the deceased.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Race & Roster, for plaintiff and appellant.
    Roselius, for defendants.
   Voorhies, J.

This is an action brought by the administrator of the estate of the late Alexander Jarvis, to recover of the defendants the sum of $1,650 08, alleged to be the net proceeds of the sale of a lot of sugar and molasses, consigned to the defendants, as factors, in New Orleans, to be sold for the account of the estate.

The defendants in their answer plead compensation, averring that they acted as the factors of the deceased Jarvis, and of his administrator, and as such they made advances to the amount of $1,346 83, exclusive of interest, which by law they have the right to deduct out of the proceeds of the sale of the crop consigned to them.

The account of sales rendered by the defendants' on the 24th of March, 1852, shows that the amount claimed by the plaintiff as the proceeds of the crop, is correctly stated.

The District Court allowed the amount claimed in compensation, and gave judgment in favor of the plaintiff against'the defendants in solido, for the sum of $203 25, with legal interest from the 24th of March, 1852, until paid, as the balance of the proceeds of said sale. From this judgment the plaintiff has appealed.

It is admitted in the record, that the advances referred to in the answer were made to the deceased in his lifetime ; that the sugar and molasses specified in the account of sales annexed to the petition, were consigned by the plaintiff, as administrator, to the defendants’ predecessors in business, P. J. Pavy, Lobit & Oo. ; and that the defendants are responsible for this debt in the same manner as the said P. J. Pavy, Lobit S Oo. would have been.

A letter addressed by the plaintiff to the defendants on the 20th of May, 1852, was introduced in evidence by the latter, in which the plaintiff informed the defendants that he had examined their accounts against the estate of Ja/r-vis, in connection with their attorneys, and had agreed in finding- that $421 85, of their account of $1,346 83, was privileged upon the crop, leaving a balance not privileged of $924 98, which was, however, secured by mortgage upon the property of the succession, a part of which had been sold. He further stated, that the amount of sales showed the net proceeds of the sale of the sugar and molasses to be $1,550 08, and that he wished to draw on them for the balance thereof, after deducting said sum of $421 85, and whatever additional amount might be coming to them on the tableau of distribution.

The only question which arises out of this state of facts, is, whether the plaintiff’s claim may be considered as extinguished pro tanto by the debtpleaded in compensation by the defendants.

We think the answer to this question is clearly given by the Article 1056 of the Civil Code, which has already been the subject of judicial interpretation. Under that article, it is clear that an administrator cannot pay the debts and legacies, even when there are sufficient funds, without the authority of the Judge to that effect. When the funds in hands are insufficient for the payment of the debts, he is then required to make a tableau of distribution among the privileged and mortgage creditors. In Brooks v. Walker, administrator, 3 Ann. 150, it was expressly decided not only that the purchaser of the property of a succession could not plead a debt due to him by the deceased, in compensation, but that the administrator was without authority to give his assent to such an extinguishment of the debt. See 2 Ann. 412. Ibid, 459. C. P. 1053, 1054, 1055.

Whether the crop of a succession in course of administration be sold through the agency of an auctioneer or of a factor, it seems to us there can be no difference in principle as to the disposition of the proceeds arising from such sale; and that neither the auctioneer nor the factor can exercise the right of retaining such proceeds in compensation of a debt due to him by the deceased. From this, it is clear that a factor would be entitled to. deduct from the proceeds of sales of crops thus consigned to him, only the amount of his advances to the administrator necessary for the making of the crop, and the amount expended for its preservation and for the purpose of effecting its sale. In the present case, we think „the amount thus advanced by the defendants to the administrator of the estate of Jarvis may be fairly assumed to be $421 85, as stated in the plaintiff’s letter. After allowing it in compensation, we are of opinion»the plaintiff is entitled to recover the residue from the defendants, with legal interest from the day they become defaulters by delaying the payment thereof, as shown by the plaintiffs’ letter. O. O. 2984. 8 R. R. 13. It may be proper for us to add, that we do not consider our judgment in this case as affecting in the slightest degree, whatever right or privilege the defendants may think proper to assert to said proceeds, whenever placed on a tableau of distribution of said estate.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that the plaintiff recover of the defendants in solido, the sum of eleven hundred and twenty-eight dollars and twenty-three cents, with legal interest from the 22d of May, 1852, until paid, and the costs of both courts.


author: Slidell, C. J. Voorhies, J.,

text:
    Blanchin v. Steamer Fashion and Owners—T. R. Brady et al., Intervenors.
    The release, by bonding her, of a steamboat, provisionally seized for supplies furnished, does not extinguish the privilege under which the seizure has been made.
    The privilege for supplies furnished a steamboat expires after sixty days from the time of furnishing them. ‘Where the boat is seized on a claim for supplies, the time is arrested, as to other creditors, while she is in the Sheriff’s custody — but when she comes back into the owner’s hands, as to those creditors, the lime begins to run again.
    The bond given to release a steamboat from a provisional seizure for supplies, takes the place of the boat, and the plaintiff has the protection of the bond.
    PPEAL from the Fifth District Court of Now Orleans, Augustin, J.

      Magna, for plaintiff and appellant.

      Price & Denegre, for defendants.
   Slidell, C. J.

We do not think the release of the steamer on the bond given in this case, extinguished the plaintiffs privilege upon the steamer, as was held by the District Judge. The privilege springs from the nature of the debt, and not, as in case of attachment, from the seizure.

We think the effect of time, which was running against the plaintiffs’ privilege, was arrested, as to other creditors, only while the boat was in the Sheriffs’ custody, which was but one day. As soon as she went into the owners’ hands, the time began to run again, so far as other creditors were concerned. The opposite doctrine would conflict with the theory of the later decisions, which is, that when the boat is not" in legal custody, the privilege runs out, as against other creditors, in sixty days.

The bond, quoad the provisional seizure, took the place of the boat; and it will be observed that the conditions of the bond taken in this case, pursuant to the statute is, that the defendant shall satisfy such judgment as may bo rendered in the suit. So, there the plaintiff has the protection of the bond.

We therefore conclude, that by the lapse of sixty days between the time when plaintiff furnished a portion of the supplies, and the 23d of March, when the steamer was seized under the plaintiff’s fi. fa., the privilege for a portion of his claim expired, as against other creditors.

In the cases of some other creditors, the time had partially run out before their claims were filed.

It is therefore decreed, that the judgment be amended, by making 0. Blan-eldn as a privileged creditor in the fifth class enumerated in the decree of the District Court, for the sum of §274 44; that the privilege allowed by the decree to Jean Francis and A. P. Lee, be refused, and that they be ranked only as ordinary creditors; that the amount for which Laearetti is allowed a privilege, be reduced'to the sum of §65, and that he be ranked as an ordinary creditor for the residue of the amount adjudged in his favor; that the amount for which Daquin & Go. are allowed a privilege, be reduced to $24 46, and that he be ranked as an ordinary creditor for the residue of the amount adjudged in his favor.

It is further decreed, that the costs of the appeal be paid by the appellees.

Buchanan, J., Ogden, J., and Spoeeord, J., concurring.

Voorhies, J.,

dissenting. The plaintiff brought this action to recover the sum of $87 16, alleged to be for supplies furnished the steamer Fashion, and for which he also claimed a privilege on her. She was provisionally seized, and, on the 18th of February, 1858, released on the defendants’ bond. On the 10th of March, 1853, judgment was rendered in favor of the plaintiff for the amount of his claim, with five per cent, interest thereon, from the 17th of February, 1853, until paid, and costs, with privilege on the property provisionally seized. The steamer was seized and sold under an execution issued on this judgment. Several of the creditors filed petitions of third opposition in the suit, claiming privileges on the proceeds of the sale.

The plaintiff took a rule on all the parties, or third opponents, to show cause why his judgment should not bo satisfied out of the proceeds of the sale of the boat in preference to their claims. The District Court rendered judgment thereon, classing the plaintiff’s claim in rank “ next above to the ordinary creditors, by virtue of his seizure or execution.” From this judgment the plaintiff has appealed.

It is undeniable that plaintiff’s privilege for supplies, under Article 3204 of the Civil Code, existed at the time the steamer was provisionally seized and bonded. Was it extinguished previous to the seizure and sale under the plaintiff’s execution? In deciding this question in the affirmative, the Judge a quo says, “ The right of provisional seizure and sequestration, is given to a certain class of creditors; but this right is subject to the condition that the seizure may he set aside upon defendants’ giving bond. The right to seize is undisputed, so is the right to bond. The privilege is undisputed and exists for sixty days, whether the boat is seized or not. If seized within the time, then prescription ceased to run so long as the boat was in possession of the Sheriff; but the right of bonding being an incident'to the right of seizing, the moment the former right is enforced, the boat must be considered as not seized at all, and the seizing creditor must looh to his bond which represents the boat, in the same manner as an attaching creditor must look to the bond which releases the property attached. But while the boat is in the actual custody of the Sheriff, no one will furnish supplies, and no one can he injured by the fact of seizure ; the time between the bonding and the trial, and final judgment, may bo several months, and during this period the boat is running; but if she runs more than sixty days, the privilege is lost. The Code makes no distinction whether the boat is running as a bonded boat or not. The extreme time of the duration of the privilege is sixty days, and prescription will only cease to run from the time the boat is actually in the custody of the Sheriff.” It appears to me the Judge a quo erred. He has, in my opinion, confounded the right with the remedy. The privilege given to the furnisher of supplies, is a right created by law existing independently of the remedy. It is clear to my mind that the creditor is not bound in the enforcement of that right, to resort to the conservatory act of provisional seizure, which can only be considered as remedial. If the creditor does not think proper to resort to the provisional seizure, the question then recurs, is the prescription of the right interrupted by the institution of a suit ? The Code declares, that prescription is interrupted when the possessor has been cited to appear before a court of justice on account of the property or possession. Art. 8484. The same rule applies to the prescription liberandi causa. Ibid, 351fi, 8517. 12 L. R. 530. This rule, which is general in its application, certainly embraces the present case; otherwise, what would be the result ? In almost every case, whore the property was not provisionally seized, prescription would be acquired before the termination of the litigation or judgment obtained by the creditor. If the creditor has the right to enforce his privilege created by law on the thing- without resorting to the harsh remedy by provisional seizure, which can hardly be gainsayed, it is difficult to perceive how his right or privilege can possibly be affected by a remedy which he is entitled to merely as an auxiliary. In support of the principle enounced by him, the Judge a quo adverts to cases of attachment when the property attached has been released upen the defendants’ bond. The distinction between cases of attachment and provisional seizure or sequestration is, in my opinion, obvious; in neither of these is there any privilege created by virtue of the seizure, the writ being reverted to, merely for the purpose of securing a right or privilege already existing upon the thing; and in that, the privilege springs only from the seizure under the writ of attachment. Hence, it follows as a necessary consequence, that the privilege thus created must terminate with the release of the property on the defendant’s bond. It seems to me a different construction of the law would have the effect of destroying the creditor’s right or privilege, given to him by law, on the thing itself, by substituting in lieu of such privilege, a bond which might ultimately turn out to be entirely worthless, or, at all events, compelling him to bring another suit to enforce his right.

It is said that the rights of third persons acquired after the expiration of the sixty days, cannot be affected, whether the boat is running as a bonded boat or not; and that to preserve the privilege after the sixty days, the boat must be seized and held in the possession of the Sheriff. It seems to me this proposition is untenable. It has been held in actions of revendication, that the defendant cannot convey the property in dispute, or create any incumbrance upon it, to the detriment of the plaintiff, during the pendency of the suit, which is considered as a notice to the whole world.

I am therefore of opinion, that the plaintiff is entitled to a judgment for the whole amount of his claim, to be paid by preference out of the proceeds of the sale of the steamer Fashion.


author: Spofford, J.

text:
    Thomas Porterfield v. Moses Greenwood & Co. et al.
    Simulated Sale. — At a Sheriff’s sale of property, the brother of the defendant became the purchaser. Under the facts of the case, the purchase was regarded as a family arrangement, to screen the property of the true owner from the pursuit of his creditors.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Ogden S Leovy, for plaintiff.

      Semmes & Edwards, for defendants and appellants.
   Spofford, J.

The slave Mary was attached in New Orleans, at the suit of Moses Greenwood & (Jo. against ’William Porterfield, a resident of Vicksburg, Mississippi. The seizure was made on the 19th of March, 1852, and released, by consent of parties, on the 31st of the same' month, the slave being placed in the hands of a third person for sale, the proceeds to abide the event of the suit.

Ou the 16th of May, 1862, the present suit was instituted. Thomas Porter-field claims title to the slave, and'five hundred dollars as da’mages for her illegal seizure. In the District Court, there was judgment in his favor for the slave and against him on his claim for damages. Moses Greenwood & Go. have appealed, and the plaintiff asks that the judgment in his favor be so amended as to allow him the damages claimed in his petition.

The title set up by Thomas Porterfield, is based upon a Sheriff’s sale made in Warren County, Mississippi, on the 3d of November, 1861, under a fi. fa. upon a forfeited forthcoming bond taken in the suit of White & Barnes against William Porterfield. The SheriiF’s return recites, that he sold tire negroes Bartlett and Judah, and Polly and Mary Loo, Simpson, Jim, Titus, Joshua, Mary and child, John and Martha, to Thomas Porterfield, for $1961, being the amount of his several bids for said negroes as they wore separately offered, he being the highest bidder therefor, and defendant, William, Porter-field, paying the balance. This execution is satisfied.

There is no positive evidence in the record to identify the slave seized at the suit of Greenwood & Go., as being one of the slaves sold under this execution. This alone would have been sufficient to defeat the plaintiff.

But since the parties have argued the case at great length on the supposition that the identity might be considered as established, it is proper that we should express our opinion upon the question of the reality of the plaintiff’s title.

William and Thomas Porterfield are brothers. William, the elder, isa man of considerable fortune, but is proved to have been in the habit of keeping the titles to his most valuable property in the names of other persons. There may not be an impropriety in such a course, provided the party who follows it, is punctual in the payment of his debts. But if, as in this instance, he is frequently involved in litigation, the fact acquires significance.

William Porterfield was present at the sale of his negroes, when Thomas became the purchaser. The money was paid by the clerk of a wharfboat at Vicksburg, beloning- to Porterfield é Go., of which firm William Porterfield was the principal, if not the sole member. The negroes went away from the auction stand with the two brothers. It does not appear that Thomas ever had any exclusive possession of the slaves after his purchase, if, indeed, he can be said to have had any possession at all. He was quite a young man at the date of the Sheriff’s sale, and his previous employment, as well as his reputation among his neighbors, do not indicate that he was possessed of means to make such a purchase. The fact that there was no competition in bidding, although there were many persons present, and the slaves were knocked off for less than a third of their value, seems to show that the sale was regarded, among the bystanders, as a family arrangement.

But the strongest of all the circumstances against the plaintiff’s pretensions, is, that he did not send a power of attorney here to sell the slave in question as his. The letter to B. J. Mart & Go., of this city, to whom the slave was sent from Vicksburg, on the 26th December, 1831, with authority to sell her, was signed '■'■Porterfield & Go.,” and did not intimate that she was the property of Thomas Porterfield. Under the evidence, we regard it as doubtful whether the firm of Porterfield & Co. consisted of any other person than William Porterfield.

If all these circumstances had transpired in Louisiana, we should not hesitate to pronounce the title of Thomas Porterfield a simulation. And we have no reason to believe that such a title would be maintained against creditors under the law of Mississippi, as administered in their courts of equity jurisdiction.

It is therefore ordered, that the judgment of the District Court be reversed, and that there be judgment for the defendants, with costs in both courts.


author: Slidell, O. J.

text:
    Ferguson & O’Dowd v. Murphy & Co. et al.
    Where the citation to answer interrogatories issued to the firm alone, the answer by one member of it will be sufficient, notwithstanding the prayer of the petition was that the individual members of it should answer.
    from the Sixth District Court of New Orleans, Ootton, J.

      Haynes, for plaintiffs and appellants.

      Budd, for garnishee.
   Slidell, O. J.

The plaintiffs having issued a fieri facias against the defendants, filed a petition for the purpose of making the firm of White, Fazende & Go. garnishee, and propounded interrogatories, which they asked in their petition should bo answered by the individual members of the firm. A citation was issued, addressed to the firm, and was served on White, one of its members, who, for the firm, answered the interrogatories in the negative. Then the plaintiffs took a rule on the firm of White, Fazende & Go. to show cause why the interrogatories should not be taken pro eonfessis, on the ground that only White had answered. The petition, citation and rule, do not suggest the names of the partners. The District Judge dismissed the rule, and the plaintiffs have appealed. As no citation issued other than to the firm, we see no reason to disturb the judgment.

Judgment affirmed, with costs.


author: Buchanan, J.

text:
    Core, Curator, v. Corse and Conniff.
    A cause will not be remanded for a new trial, at the instance of defendant, to enable him to have his call in warranty acted on by the Judge. He should have asked for a finding on the issues between himself and warrantor, before the Terdict was recorded, and the jury discharged.
    from the Second District Court of New Orleans, Lea, J.
    if. H. Barher, for plaintiff.

      Race & Foster, for defendants and appellants. Buguii and Janin, for warrantor.
   Buchanan, J.

This is an hypothecary action. The defendant, Gonniff, third possessor of the property affected by plaintiff’s mortgage, has called in warranty his vendor, Corse, and also tho Recorder of Mortgages of the parish of Jefferson.

There (loos not appear to be any complaint of the judgment in favor of plaintiffs, which is unquestionably correct under the evidence. But the appellant asks that the case should be remanded for a now trial, because the jury did not paps upon his call in warranty of Gone. The cause was tried, and the verdict was rendered in the presence of all parties. It was the business of the appellant to see that the jury passed upon his calling in warranty. This was an issue between himself and his warrantor. Had he desired to have a special finding of the jury thereupon, he should have asked for it before the verdict was recorded and the jury discharged. His neglect to do so, cannot prejudice the plaintiffs, who were not bound to protect his interests. Theriot v. Henderson, 6 Ann. 223. It is proper to observe, that Gorse is not made a party to this appeal, and consequently we could not modify or change the judgment to his prejudice. After the verdict rendered upon the plaintiff’s claim against Gonniff, there was another verdict entered up upon one of Oonniff's calls in warranty, that against Arnoult, the Recorder. The appellant complains of the rejection of certain evidence offered by him against the Recorder. But it is unnecessary to examine this point, inasmuch as the Recorder is not a party to this appeal, either by bond or citation.

Judgment affirmed, with costs in both courts.


text:
    Mrs. Kennedy v. Municipality No. Two.
    By the Act of 80th April, 1858, every riparian proprietor within the limits of corporate towns in this State, is authorized to sue the corporation for the occupation of so much of the batture in front of his property as may not be necessary for public use.
    The property of plaintiff was designated by the following metes and bounds: “ One hundred and eighty feet, French measure, front on the river Mississippi, and extending back and forming the like front on the New Levee street, bounded on the upper side by a street which is the prolongation of Suzette street, and on the lower side by the property now or lately belonging to the succession of JTrbain GritiennvU, in front by the river Mississippi, and in the rear by said New Levee street, together with the privileges and appurtenances thereto belonging or in any wise appertaining.” Held: This discretion conveys, by right of accretion, the alluvial deposits opposite the lot conveyed. Civil Code, 501.
    The case of Mv/nicvpality No. 2 v. The Orleme Cotton Tress, 18 Louisiana Reports, 287, affirmed.
    The possession of the batture by the city is for the purpose of administration,-is not inconsistent with a right of ownership in the riparian proprietor, and can not form the basis of an adverse title on which the city could maintain a plea of prescription to an action brought by such proprietor.
    from the Second District Court of New Orleans, Lea, J.

      Elmore & King, for plaintiff.

      Livingston, for defendant and appellant.
   Buchanan, J.

The plaintiff claimed in her original petition to be put in possession of a certain extent of batture in front of her property situated in the faubourg Delord, on the ground that the said extent of batture was not required for the use of the public, but was susceptible of private occupation and improvement. By a supplemental petition, she claimed that the corporation should be condemned to fill up certain excavations alleged to have been made in the batture herein claimed by plaintiff. The answer of the Municipality was a general denial. Pending this issue, Municipality No. Two merged in "the city of New Orleans,” by the consolidation Act of 1852; and the new corporation, being made party defendant, filed an answer, claiming title to the batture in question, as locus publicm, and also by the prescriptions of ten, twenty and thirty years. There was judgment in favor of the plaintiff for the possession of the extent of batture claimed by her, and rejecting her demand for the filling up of the same at the expense of the city. The latter has appealed.

No question has been made, in the pleadings nor in the argument, of the right of an individual to bring such an action as the present one, in the year 1851, the date of the institution of this suit. This point might have caused some embarassment, for the cases of Packwood v. Walden, 7 New Series, and that of Henderson v. The Oity of Hew Orleans, in 5 Louisiana, are not altogether reconciliable with each other; but the Act of the Legislature of the 30th April, 1853, has relieved the cause of any difficulty on that score. By that Act, every riparian proprietor, within the limits of corporate towns in this State, is authorized to sue the corporation for the occupation of so much of the batture in front of his property as may not be necessary for public use; and the question of how much of the land is required for public use, is by that statute submitted to the arbitrament of the courts. It only remains, therefore, to determine, whether the plaintiff is entitled to the remedy given by the Act of 1853.

The first point made by appellant, is, that plaintiff has not shown herself to be a riparian proprietor, entitled to the alluvion formed by the deposits of the river.

The title of plaintiff has the following metes and bounds: “ One hundred and eighty feet, French measure, front on the river Mississippi, and extending back and forming the like front on the New Levee street, bounded on the upper side by a street which is the prolongation of Suzette street, and on the lower side by the property now or lately belonging to the succession of Urbain Gaiennié, in front by the river Mississippi, and in the rear by the said New Levee street, together with the privileges and appurtenances thereto belonging or in any wise appertaining.” This description clearly conveys, by right of accretion, the alluvial deposits opposite the lot conveyed. Civil Code, Art, 501. Morgan v. Livingston, 6 Mart., 216. Municipality No. Two v. Orleans Cotton Press, 18 L. R., 240.

The next point made by defendants, namely, that the batture is locuspublicus, and belongs to the city by destination, is a renewal of the pretentions set forth by the city in the case just quoted, of Municipality No. Two v. Orleans Cotton Press; and which were overruled, after the fullest argument, and the most mature consideration. See 18th L. R., 237. As to the claim by prescription, it results very clearly from the authorities above invoked, that the possession of the locus in guo by the city, was a possession simply for purposes of administration, not at all inconsistent with a right of ownership in the riparian proprietor, and destined in its nature, to terminate upon the happening of a certain contingency. Such a possession cannot be pleaded against the riparian proprietor, as the basis of an adverse title in the city. This suit is very different from a petitory action. The plaintiff does not sue the defendant as an usurper or trespasser. On the contrary, while asserting title in herself, she recognizes the legality of the possession and administration of the propertj7, which defendant has held to the present time, but claims that such possession should now cease, by reason .of the cessation of the condition on which alone it existed, to wit: its being necessary for public uses: and that the possession should be reunited to the naked ownership.

Upon the merits, the weight of evidence preponderates decidedly in favor of the plaintiff. It is established by proof, that a space of more than six hundred feet intervenes between the houses on Front street and low water mark. And none of the witnesses say that so much as half that space is necessary for the public use. The demand of the plaintiff to reclaim and possess for her own advantage, two hundred and forty foot, in breadth, of the batture in front of her property, appears to be reasonable and even moderate, under these circumstances.

As respects the claim on the part of the plaintiff, to have the excavations of the batture filled up at the expense of the city, we find nothing in the evidence which justifies the conclusion that the corporation has made any other excavation than such as it had a right to make, in taking earth for the construction of embankments, levees and wharves for the public use on the batture.

Judgment affirmed, w-ith costs.


author: Bucjiaxan, J. Smdell, C. J.

text:
    Municipality No. Two v. Dubois & Mish.
    The tax imposed upon keepers of livery stables by the city ordinance of November 15th, 1849, is constitutional and legal. ••
    from the Third District Court of New Orleans, Kennedy, J.

      Zabatt & JEustie, Jr., for plaintiff.

      Upton, for defendants and appellants.
   Bucjiaxan, J.

The defendants being sued for the tax imposed upon keepers of livery stables by the city ordinance of November loth, 1849, have pleaded that the said tax is illegal, because their stable has been taxed in the form of a property tax, and also of a license, and that it is unconstitutional, as being unequal.

The first objection is disposed of, by observing that the tax herein sued for is not a tax on property, but. a tax on an occupation — rthat of keeping a livery stable; and that, as to the allegation in the answer that the defendants have already paid a license to the cily, said allegation is unsupported by any proof.

"Vie are unable to pern ivo how the ordinance in question violates the Article 127 of the Constitution, which requires taxation to be equal and uniform. Its words are : “All keepers or owners of stables where horses and carriages are kept for hire,” &c, The argument seems to be that the business of defendant’s livery stable will not bear such a tax. To this it may be again replied— this does not profess to b a tax on capital or profits, which are property; but on the person pursuing a certain occupation. To levy such a tax differently upon one and another in proportion to the success of each in such pursuit, would producá the veiy inequality of which defendants complain. As the ordinance stands, all are taxed alike.

Judgment affirmed with costs.

Smdell, C. J.

I find nothing unconstitutional or illegal in the tax, and concur in the affirmance of the judgment.


author: Slidell, C. J. Voobhies, J. Ogden, J.,

text:
    Municipality No. Two v. Dunn.
    Municipality No. Two had authority to impose a portion of the cost for the removal of a dilapidated and insufficient pavement and making a new and sufficient one in its stead, on the proprietor of property, fronting the street so improved.
    The Municipality had no power by the then existing laws to compel a contribution, by the owners of lots, to the cost of making the second pavement to replace the one to which the contribution had already been made. Ogden, dissenting. Buchanan, J., concurring in the dissenting opinion.
    from the Third District Court of New Orleans, Kennedy, J.

      R. Hunt and Parker, for plaintiff.

      Roseline, for defendant and appellant.
   Slidell, C. J.

For some thirty years the rule lias been followed of imposing a portion of the cost of paring, upon the proprietors of property fronting on the street payed. This has been done upon the equitable principle of apportioning the burden with reference to the benclit.

If the first paving of a street is a special benefit to the front proprietor, justifying the imposition upon him of a portion of the expense, while the city pays for the residue as having been incurred for a matter of general utility; so the removal of a dilapidated or insufficient pavement, and the making of a new and sufficient one in its stead, is a matter of special benefit to the front proprietor, as well as of general utility. The equity is the same in both cases.

I have expressed my views on an analogous subject in tho Renton street case.

The Act of 1860, conferred a privilege for paving done;' but the power to levy the contributions was a pre-cxisling power which during a long period had been exercised and judicially sanctioned. It was sustained under the grants of power contained in the Acts of 1805 and 1813, which are not restricted to pavements first laid. Seo Oahsy's case. 1 L. R. 1. If these grants were curtailed by subsequent legislation, as to the pariHilar subject of paving, I am not aware of it.

It seems to me that the power to pave the drc<í-; i¿a permanent continuing power to bo exercised when the public good nmy inquire it, and that the power to levy a contribution on the property benefited by «he paving in front of it is equally durable and continuing.

In conclusion, I must repeat my conviction fhai the system of paying for local-improvements wholly out of the general treasur» is equitable, and will result in great extravagance, abuse and injustice, i thick the system of making particular localities, which are specially benefit .1, 1 car a special portion of the burden is safer, and more just to the citizens at Urge, by whose united contributions the city treasury is supplied. What is taken out of that treasury is taken out of the pockets of all the proprietors.

I think the judgment should be affirmed with costs.

It is decreed that the judgment of the District Court be affirmed with costs.

SroiTOHD, J., concurring.

Voobhies, J.

I concur in the conclusion of the ( hief Justice. In my opinion, the city had the power to order the work to be done on the street, and to compel the front proprietors to contribute for the cost of it. It appears to me that such contribution caunot be considered as repugnant in any respect to the fundamental principle which requires that taxation, whether parochial or municipal, shall be equal and uniform throughout the State. In the present case the contribution is as equal and uniform as the nature of the thing admits of.

Ogden, J.,

dissenting. The defendant as owner of certain lots fronting on Tchoupitoulas street, is sued for one-third of the cost of making a new pavement, in front of his property. This street had been previously paved with round stone, and the defendant and those from whom he acquired the property, had contributed in the proportion of one-third of the cost to making the former pavement. It was found that the round stone pavement could not resist the heavy hauling over this street — was constantly out of order; it was therefore taken up and replaced by square block stone.

The defendant resists the claim of the municipality, to be re-imbursed in the amount of one-third of the cost of this new pavement in front of his property, on the following grounds:

1st, That the municipal government had no power to impose on the owners of lots, fronting on the street, the burthen of the expense of a second pavement of the street, whatever might be their power to compel a contribution by such owners to the first pavement. 2d- That if such power did exist, it could be exercised, only on the condition of crediting the proprietors with the amount of the special contribution paid by them for the first pavement.

The rule adopted by the ordinance of the municipality, which provides for the payment of the expense of paving the streets by requiring, that one-third of the expense shall be paid by the proprietors of lots on each side of the street and the balance by the corporation, is a mode of taxation for that object which has been sanctioned by the Legislature, The 7th section of the Act of the Legislature of 1840, provides ‘‘ that whenever the owner of any property, in front of which paving shall be done, by order of the Council of the municipality, shall fail to pay the third part of the cost of said paving, as he is bound 'to do by existing laws; such municipality shall have a special privilege on said property for the re-imbursement of one-tbird of the sums expended on such paving. This was a recognition by tbe Legislature of an existing ordinance of tbe municipality, of a general nature, which provided as uniform a mode of taxation for the expense of paving streets as could well be devised.

It is contended, however, by the appellants, that until the Act of the Legislature of 1850 was passed, the Council of the municipality did not possess tbe power of taxing the owners for new paving on a street already paved. The 8th section of that Act is as follows:

“ That the Councils of said municipalities shall have the right of laying-special taxes for local improvements, when the owners of property thereby benefited are liable to be specially taxed, conformably with existing laws, for tbe whole or a portion of the expense incurred for such objects, and whenever it shall be deemed necessary to make a new paving in any street-already paved, the owners of property fronting said street shall also be liable to be specially taxed in the proportions established by existing laws; provided, a fair and adequate allowance be first made in their favor for the value of the materials of the old paving.”

The appellees counsel have agreed that this is a legislative recognition of a pre-existing power in the municipal government; that this Act of 1850, provided a new mode of deciding on the amount of the general taxes to be annually assessed, but excepted by this section, from these new provisions the special paving tax. It appears to me that while it makes this exception and recognizes a pre-existing power in the municipal government on this subject, it was the object of this provision to extend the power of the corporation, so as to enable them whenever they deem it necessary, to take up a pavement once laid and replace it by a new one of different materials at the joint expense of the municipality and the proprietors of lots, in the same proportions as established by existing laws in regard to the original paving' — -by providing a rule for the disposition of the old materials, it would seem that a case such as this was contemplated, and not the case of a pavement having rotted away. In the present case the new paving was done before the law of 1850 was enacted, and it is not necessary to express any opinion as to that law, which is not applicable.

In the absence of a special power conferred by the Legislature, I think the defendant could not'be specially taxed for the new pavement which became necessary, in consequence of the municipality having selected materials for the first pavement which was not suitable.

If it was deemed a matter of public utility that the round stone pavement, to which the owners of lots on Tchoupitoulas street had contributed their proportion of the expense, should be replaced by one not so subject to injury by heavy hauling and more commodious to the public, it was a local improvement determined on by the municipal Council, not coming under the general ordinance regulating the paving of streets, and subjecting the owners of lots to equal taxation therefor.

I conclude that the municipality had no power by .the then existing laws to compel a contribution, by the owners of lots to the cost of making the second square block pavement, to replace the one to which contribution had already been made, and that the judgment of the lower court ought to be reversed.

Buchanan, J., concurs.