author: Bermudez, C. J.

text:
      No. 1,203.
    John M. Lockhart vs. Frank Morey.
    .1 vendor. Reining the plantation securing his claim, has a right to make the advances necessary for the working of the place while in the Sheriffs' custody, and to overseer it with the Sheriffs’ consent. In both cases, he is entitled to recover the amount of the advances shown to have been made and to receive payment for his services.
    An account annexed to a petition “for reference f stands as an amplification of the petition and .justifies the admission of proof in support of the items figuring upon it.
    APPEAL from the Eighth Judicial District Court for the Parish o^ Madison. Beloney, J.

      (J. J. (É J. S. Boatner, Attorneys for Plaintiff and Appellee.

      Stone & Mmjyhy, Attorneys for Defendant and Appellant.

      This cuse was decided in Monroe, in .Time, 1888.

   The opinion of the Court was delivered hy

Bermudez, C. J.

This is a suit for the recovery of $2579 71 for advances made in different ways to work defendants’ plantation.

The defense is, that part of the advances consists iu the payment of plaintiffs services, and part in unauthorized disbursements. The answer contains charges of misrepresentations hy plaintiff to defendant in consequence of which the latter claims that he has sustained damages amounting to upwards of $6000.

From a judgment in favor of plaintiff, and rejecting the reconventional demand, the defendant has appealed.

The main complaints seem to he that the plaintiff was allowed $366 66 for his services as overseer and $789 11 for' advances for 1887, made without any authority. The advances for the difference for 1886 do not appear to he disputed.

The record shows that in June, 1886, the plaintiff sold to the defendant the plantation in question, part cash and part on time and that hy a contemporaneous understanding, the parties agreed that the management of the plantation would he entrusted to the plaintiff, until the end of the same year and that he would make all the necessary advances to raise the crops, and that the proceeds would first he applied to the reimbursement of those advances and the surplus, if any, would go towards the extinguishment of the unpaid portion of the price of sale.

It appears also, that early in 1887 the plaintiff 'caused executory process to issue, under which the plantation passed to sheriff’s keeping and that while it was in the custody of the law, the plaintiff, acting under advice of counsel made the advances required for its management and to prevent the property from going to ruin and loss.

There is nothing to show that the defendant, in any mode, protested against or opposed such administration of his property.

The sheriff had a right, nay, was bound to manage and administer the property, if it required it and if he could provide for the money to do so. He certainly was under the obligation of performing that duty, whore the plaintiff himself was willing to make the advances and the plaintiff having done so, is surely entitled to recover them back with the privilege allowed by law in such cases.

To make such advances, the plaintiff did not require defendant’s authority. He derived the right from the law, for the preservation of the property by which his rights were secured and, at the same time, for the protection of those of the defendant, as owner, having an interest in a proper keeping of his estates.

The advances made as well during 1886, as 1887, are well established by the testimony adduced on the trial, which also proves-the services of the plaintiff as overseer during 1887.

The objection to the payment of those services seems to be that the evidence was admitted without an averment in the petition to justify it. This objection is met by the simple statement that the bill or account in which they are set forth, is annexed to the petition for reference, in amplification of the amount claimed by the plaintiff.

The record shows that numerous objections, made to the admission of some oral testimony, were overruled. They are not urged on appéal and even then, they could not be sustained for the reason that they went to the eftect and not to the admissibility of the proof offered to he made.

The plea in reconvention is'for damages alleged to have resulted from misrepresentations of plaintiff to the defendant, touching the quantity of cane on the land at the time of sale.

On the trial, the defendant has adduced no proof in support of those charges; he has not even offered his own testimony.

While the plaintiff was on the stand, some effort was made to establish hj him those misrepresentations and certain alleged promises, but without success. The plaintiff on the contrary proves that he showed the place to the defendant, before the sale, and merely stated to him— what had been told him, leaving the defendant to verify and judge for himself, before accepting.

This view of the matter renders unnecessary any opinion on the hill of exception reserved by the defendant to the refusal of the District Judge to allow the witness to answer a question touching a promise to reserve twenty acres for planting in 1887; the fact being that, subsequently, in the course of his examination the plaintiff denied the promise, and was not contradicted.

A letter of the defendant, to which is attached a P. S., shows that he did not dispute the advances for 1886, nay approved them and that, while he admits he had no right to expect advances for the following year, he; to some extent, induced the plaintiff to make them.

There is a demand for damages for a frivolous appeal, but we do not think that, under the circumstances of this case, it ought to be. allowed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,410.
    F. L. Fernandez vs. City of New Orleans.
    Tile City of New Orleans owes legal interest on claims against lior, only where. there is money in the municipal treasury, out of which the same can ho paid, and where, notwithstanding demand, she refuses to pay; particularly is such the ease, when it has been agreed that payment shall he made as soon as it may he properly ordinanced for.
    APPEAL from the Civil District Court for the Parish of Orleans.King, .7.

      Branch K. Miller for Plaintiff and Appellant.

      Samuel L. Gilmore, Assistant City Attorney, for Defendant and’ Appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

The only question presented in this controversy is, whether the plaintiff is or not entitled to interest on his claim for $10,876.18 against the city, which interest the lower court declined to allow.

The claims which the plaintiff presses aróse under contracts made in 1884 and 1886 by the city and the Brush Electric Light and Power Company, in which it was stipulated that the amounts to become due were “to be paid in equal and monthly instalments, * in cash current money, on the first day of each and every month, or as soon thereafter as such amounts may be properly ordinanced for, in the usual manner.”

It appears that, accordingly, appropriations were made monthly to meet such engagements, and the Comptroller was directed to warrant on the Treasurer in payment of the same whenever there shall be money in the City Treasury to the credit of the appropriated fund— qnroper ordinances being adopted in furtherance.

The testimony shows that there has never been any money in the Treasury, or money collected which ought to have gone into it, out of which the claims could be legally paid, and also that no demand was made for payment to the city.

In order to determine whether the plaintiff is entitled to the interest, it becomes necessary to ascertain if the city is or not in default.

The law says that the damages due for delay in the performance of an obligation to pay money is called interest (R. O. C. 1935), and that the penalty is forfeited, only when he who has obligated himself is in default. R. O. O. 2126.

Hence it is, that legal interest runs on a claim only when payment is demandable and exigible.

In the present instance, the agreement as to payment was, that the amounts due were “to be paid in equal and monthly instalments on the first day of each and every month, or as soon thereafter as such amounts may be properly ordinanced for in the usual manner.”

Those who deal with municipal corporations are bound to know, at their peril, what are the rights vested in them, and in what manner and under what circumstances the powers conferred can be exercised. Dillon on M. C., see. 457.

The Electric Company, from whom the plaintiff derives the claims which he presses, therefore well knew that, under Act 30 of 1877, which must be read into the contract, no city officer could issue any warrant for payment of money, unless against money actually in the Treasury of the corporation.

It is true that the City Council has passed ordinances for the payment of the several items constituting the claim of the plaintiff; bub the Council has been careful, in each and every ordinance, to direct payment of the same whenever there shall be money in the Oity Treasury to the credit of the appropriated fund. The Comptroller could issue a warrant and the Treasurer could pay the same only in the contingency that there would be mone3r in the municipal coffers out of which the same could be satisfied.

It did enter in the consideration of the contract, that the amounts would be paid monthly, or as soon as the amounts could be properly ordinanced for in the usual manner.

The contract meant, the city will pay in.the month following, if there is money in the Treasury, and if. there is none, as soon after that time of payment as there shall be money in the Treasury on which a warrant can be drawn legally.

The-ordinances were therefore very guarded, and as theyare relied - on by the plaintiff, they conclude Mm.

It is therefore clear, that when the company, in whose place the plaintiff stands, contracted with the city, it did so on the faith that it would be paid out of expected revenues, to be appropriated for its payment, and merely acquired rights to be paid out of such fund, contingent upon its being realized and paid into the Treasury, and upon a warrant being drawn therefor only when actually deposited there. 33 An. 571; 39 An. 982.

Since there has not been any money in the Treasury on which warrants could have been drawn, how can it, therefore, be said that the city is in defaultf

It is evident that the oity could have been considered guilty of a breach of contract only if there had been funds in the Treasury, and if a demand by plaintiff to be paid out of it had been declined by the city.

Had there been funds, and had the city refused, there would have been a delinquency, -and as a penalty for failing to perform her obligation, the city would have been liable for judicial interest to the plaintiff for damages.

Under the showing made the city was not in default, and the plaintiff can not recover the interest claimed and denied below.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,434.
    City of New Orleans vs. Orleans Railroad Company.
    A contract between a municipal corporation and a railroad company by wliicb the latter pays a bonus for the franchise therein conferred by the city, can not be construed as conferring an immunity from the payment of license on itsbusiness by the company, in the absence of an express stipulation to that effect in the contract.
    No exemption of a particular institution is to be implied from the payment of a bonus, as that would be to set up judicial implications against an express exorcise of the taxing power.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      W. B. Sommerville, Assistant City Attorney, for Plaintiff and Ap-pellee.

      Frank N. Butler for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant corporation appeals from a judgment enforcing the claim of the City of New Orleans for a license of $250 for the privilege of conducting the business of operating and running a street railroad for the transportation of passengers within the limits of the city for the year 1888.

Its grounds of resistance are:

1. The nnconstitutionality of Act 101 of 1886, under which the city-predicates its right to enforce the license under discussion, on the-ground that the statute does not rate or grade licenses, in compliance with the provisions of Article 206 of the Constitution.

2. That by the terms of its contract with the City of New Orleans, the company had acquired its right to operate its road for and in consideration of the sum of ten thousand dollars, payable in ifve •equal annual instalments, and that thereby the city had exhausted its power to lay any further tax on the defendant’s franchise.

The identical defences were set up in the ease of the New Orleans üity and Lake Railroad Company, decided adversely to the defendant by this court last year and reported in the 40th of Annuals, p. 587.

On the present appeal the defendant does not press the first point of its defence as hereinabove stated. But its counsel solicits a reconsideration of our views on the second point of the controversy, and suggests that our conclusions on the question are antagonized by several decisions of the highest authority and respectability which he submits for our consideration.

We have carefully examined those decisions, and we found in them no utterance or principle announced at variance with our reasoning in the case assailed as erroneous, but a great deal to establish and to con-; firm the coi'rectness of our eoixclusioxxs, to which we shall adhere. We shall xxow refer to the cases relied on.

The case of Gordon vs. Tax Court, 3 Howard, p. 133, presented the attempt of the State of Maryland to levy a tax on the stockholders of a bank for their stock, in the face of a previous act of the Legislature, which had accepted a bonus from the bank fix lieu of taxation, and the Supreme Court of the United States held the State to its contract.

The syllabus reads:

‘ ‘ Where the Legislature of a State accepted from banking corporations a bonus as a consideratioxx for the franchise granted, and pledged the faith of the State ‘ not to impose any further tax or burden upon them during the continuance of their charters under this act.’ Held that the tax upon the stockholders, by reason of their stock, was a violation of the contract, and the tax was illegal.”

The following extract from the syllabus of the decision in Bank vs. Knoop, 16 Howard, 376, is sufficient to show that the case has no bearing on our present discussion:

“ The Legislature of a State, if not restrained by its Constitution, may make a valid and binding contract with a banking corporation, in its charter, that no more than a specified amount of taxes shall be levied on its property during a term of ten years; and a succeeding Legislature has no power to pass a law impairing the obligation of such a contract.”

The issue decided in the case of Jefferson Branch Bank vs. S. Kelly, 1 Black ü. S., p. 435, is sufficiently stated in the following extract from the head notes of the decision:

The charter of a hank is a franchise, which is not taxable, as such, if a price has been paid for it, which the Legislature has accepted with a declaration that it is to be in lieu of all other taxation.”

The italics are ours, and the words thus emphasized actually demonstrate the striking difference between that and our case.

In the case of Railroad vs. Sabin, 26 Pa. State, p. 242, the Supreme Court of Pennsylvania recognized in very clear language the legal difference between a bonus and a tax, which underlies our decision now under discussion, when it said:

“It sometimes happens that a bonus is demanded and received from a bank or other corporation at the granting of its charter, and .afterward all that class of corporations are expressly subjected to another rate of taxation. No exemption of a particular institution is to he implied from the payment of the bonus, for that would be to set up judicial implications against an express exercise of the taxing power.”

In our case we are called on to set up a judicial implication of an exemption from a license for which there is not the slightest stipulation in the contract by which the company acquired a renewal of its expired franchise, simply for the reason that the contract stipulated the payment of a bonus for a valuable franchise for a term of twenty-five years.

. It is a principle clearly deducible from the very decisions quoted by defendant’s counsel, that no corporation can claim immunity from taxation or from a license, because it paid a consideration for its ■ charter or franchise, in the absence of a stipulation on the part of the State, or other taxing power, that the bonus was received in lieu of any further or future taxation. We therefore conclude that our former decision must remain untouched, and that this case was correctly decided below.

' Judgment, affirmed.


author: Fenner, J.

text:
    No. 10,423.
    City of New Orleans vs. Carondelet Canal and Navigating Company.
    1. No contract and no law imposes on the defendant company the» particular duty of building levees along the banks of its canal.

      2. Wlietlier or not, as tlie, operator or custodian of a canal, it is bound under general law to restrain its waters within the banks, and is answerable for damages occasioned by-their escape, responsibility for such damages would be the sole sanction of such an obligation; and the city would not bo authorized to build an expensive system of levees along its banks and claim for defendant the cost thereof.
    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Carleton Hunt, City Attorney, and Francis B. Lee, Assistant City Attorney, for Plaintiff and Appellant.

      Charles Louque for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The city’s demand rests on the following allegations, viz:

1. That the defendant company, by virtue of its charter and the franchises conferred upon it by the State, had assumed the obligation of maintaining the banks of the Canal Carondelet in such a-condition as to prevent the waters thereof from overflowing and injuring adjacent property.

2. That the defendant had failed to perform this obligation, and that, in 1886, the city, in order to protect its inhabitants, had expended 818,33 in repairing and building revetments and levees along said canal, which work was necessary to prevent the overflow of its waters.

8. That the work so done was what the defendant was under obligation to do, and was useful and necessary to defendant and saved it from the responsibility which it would have incurred for injuries which the overflow would have occasioned, and that, therefore, defendant is bound to reimburse said expenditure.

An exception of no cause of action was filed in the lower court,, and was, as we think, properly maintained.

The plaintiff’s pleadings set forth the various legislative acts and other proceedings under which the defendant derived its rights and obligations. They have, heretofore, been considered by this court,, find a succinct history of them will be found in our opinion rendered in the Singer’s case. 39 An. 478.

They exhibit no contractual relations between the defendant and the city of New Orleans.

They contain no stipulation pour ciufrmi in favor of the city.

They neither express nor suggest any obligation on the part of defendant to build levees along the banks of its canal so as to prevent overflows. The Canal Carondelet communicates directly, through the Bayou St. John, with Lake Pontchartrain, whose waters in times of storm have, from time immemorial, flooded the region through which this canal passed. When this canal was built it passed through an unbroken swamp. It appears on the face of the Act of 1805, the original charter, that the corporation was authorized only “to enter into and upon all and singular the land and lands covered with water, where they shall deem it proper to carry the canals, navigation,” .etc.

Surely such grant did not contemplate the building of levees; and uo subsequent alteration has imposed such obligation.

It thus appearing that defendant had not agreed to assume this obligation, and that no express provision of law had imposed upon it the particular duty of building levees along its canal, we can discover no source of any obligation for failing to do so, unless it arise from a breach of those general duties imposed on all persons, and which are treated of in our code under the title, offenses and quasi-offenses.

Article 2317 provides that “we are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable or of the things which we have in our custody,”

If it were admitted that the owner or custodian of a canal was bound to keep its waters from escaping, and would be answerable for damages occasioned by such escape, would that authorize a third person, not threatened with any personal damage, to build expensive levees along the canal and claim the cost thereof on the ground that, if they had not been built, the waters would have escaped and would have damaged others, which damage the custodian would have been bound to repair?

There is no authority sustaining such a right. The case quoted of Police Jury vs. McDonogh, 10 An. 395, rested especially on the ground that the law of the State and the police regulations of the parish imposed upon defendant the particular duty of building the levee, and it was therefore held that, as the police jury had built the levee which defendant was bound to build, it was entitled to recover the value of the work. The difference between the cases is too obvious to require further comment.

We must not be understood as holding that, under the particular features of this case, the defendant would be bound for damages resulting from overflow of its canal resulting from the flooding by the lake; but, if it were, the city’s case would be unmaintainable.

Judgment affirmed.


text:
    No. 10,489.
    City of New Orleans vs. Clark & Meader.
    1. While persons transacting business both as wholesale and retail dealers areW2 liable to license in each capacity, the evidence in this ease does not satisfy ns 0 thill defendants carry on a wholesale business within the meaning of the law.
    ■2. The proviso in the license act to the effect that retail grocers who sell liquors in loss quantities than five gallons shall pay additional .license as provided in .Section 11 of the. Act, can not be applied, because Section 11 regulates several distinct kinds of business with different systems of license, none of which embraces the business of defendants, and therefore, it furnishes no certain rule applicable to the latter. ’
    i. Uenee the only rule applicable is that found in the clause fixing the additiona license at “not less than fifty dollars.’"
    1. This construction does not make the license, unconstitutional for want of graduation, because the business of retail grocer, of which this additional business only fox-ms a part, is, as a whole, duly classified, and the addition of a fixed sum to each class does not destroy the graduation.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Oarleton Hunt, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Plaintiff and Appellant.

      J. McConnell for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

The ease involves a controversy as to the amount of, license due by defendants to the city under the license ordinance of' 1889, which is a transcript of the State license law, Act 101 of 1886.

The points of the controversy are two:

1. Whether defendants, who have paid license as retail grocers, are liable for an additional license as wholesale grocers.

2. The amount of license due by them as retailers of liquors in less quantities than five gallons.

I.

We have decided that merchants who transact business both as wholesale and retail dealers are liable to a license in each capacity. City vs. Koen, 88 An. 828.

We see no reason to disturb the finding of the district judge that the evidence in this case does not establish that defendants carry on a wholesale business within the meaning of the ordinance or the statute.

II.

The law contains the following proviso:

“Provided, That if any distilled, vinous, malt or other kind of mixed liquors be sold in connection with the business of retail merchant, grocer, restaurant, oyster house, confectionery or druggist, in in less quantities than five gallons, the license for such additional business shall be as hereinafter provided for in Section 11 of this Act; provided further, that no license shall issue to sell liquors in less quantities than five gallons for less than fifty dollars ($50).”

Defendants admit that they sell liquors in less quantities than five gallons and concede their liability for a license of $50 for this additional business.

The city claims that the license must be regulated according to Section 11 of the Act; and if we could find any means of applying such regulation we should enforce it. But referring to Section 11 we find that it regulates three classes of business, each by a different system of graduated licenses, viz:

1. The business of “keeping a hotel.”

2. The “business of bar room, cabaret, coffee house, cafe, beer saloon, liquor exchange, drinking saloon, grog shop, beer house, beer garden or other place where anything is to be drunk or eaten on the premises is sold directly or indirectly.”

3. The business of “persons engaged in the sale of soda water,, mead, confections, cakes, etc., exclusively.”

Now defendants do not keep a hotel; they do not keep a soda water and confectionery establishment; and it is positively proved they do not keep a cabaret, bar room or any other class of establishment nominated in the section, and that nothing “to be drunk or eaten on the premises is sold directly or indirectly.”

Tliei’e is no better reason for requizlng defendants to pay the license exacted of a bar room than to pay that exacted from a soda water and confectionery shop; and as to the latter, the highest license imposed is fifty dollars.

No consideration of reason, policy or morals suggests a preference between the several classes of licenses provided for in Section 11.

When, therefore, we obey the direction of the statute and refer to Section 11, we find there no certain rule, by which to regulate defendants’ license. We, therefore, fall back on the other proviso, which unambiguously declares that it shall not be “less than §50,” and approve the finding of the district judge in fixing it at that amount.

The suggestion of the city that this would have effect of making the license unconstitutional for want of graduation is not correct.

This additional business is only part of defendants’ business as retail grocers, the license on which business as a whole is duly graduated, and the addition of §50 to each class in cases where liquors are sold does not destroy the graduation.

Judgment affirmed.


author: Watkins, J. Fenner, J.

text:
    No. 10,378.
    The State ex rel. City of New Orleans vs. New Orleans and Northeastern Railroad Company.
    1. Uotli the parties to the suit being citizens of Louisiana, it can not be removed unless there is some Federal question involved. Conceding that the defendant's charter is a protected contract in the sense of the United Slates Constitution, and that the ordinance sought to be enforced is such a hnv as may impair its obligation, yet the fact» do not sustain such contention.
    ‘ 2. It lias frequently been held in the supreme Court, as veil as m the Circuit Courts of the United states, that the pendency of a suit in a State Court is no ground for a plea in abatement to a suit upon the same matter in a Federal Court. This being a recognized rule of Federal jurisprudence, it should he adhered to In our own court as a matter of judicial reciprocity.

      3. This is a suit by mandamus under the provisions of Act 133 of 1888, for the purpose of coercing the defendant’s compliance with one of its obligations to and in favor of the City of Now Orleans, and which is contained in Section 2 of City •Ordinance No. 7483, A. S., it being an ordinance granting said railroad company .the right to construct, operate and maintain, by steam, a railroad for the transportation of freight and passengers from a designated point on the shore of Lake Pontchartrain to a point designated on the shore of the Mississippi river, within the limits of the city of New Orleans; and also granting it the right to occupy a portion of the riyer front, on certain conditions stipulated therein.
    The contention on the part of the city is, that she granted the railroad company the right to occupy for its purposes and uses that portion of the levee, batture and wharf, beginning at Port street and extending down the river to Montegut street, a distance of one thousand feet, and the right to erect and maintain thereon, at its own expense, such ferry facilities, wharves, piles, machinery and other structures as shall be necessary and convenient for the transaction of (he business of the company; but that, in consideration therefor, the railroad company obliged itself to keep said wharves in repair, to replace the wliarycs which had been constructed by the city, and occupied by it, at such point as might be designated, and to pave Levee street from Louisa to Poland street with square blocks of granite.
    This last obligation is the one sought to be enforced by the city.
    There was a judgment in the court « qua- in favor of the respondent, which is reversed, and the mandamus made peremptory.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Francis B. Lee, Assistant City Attorney, for Relator and Appellant:
    1. The procedure lor enforcing an obligation is no part of the obligation itself, and the legislative power may at pleasure change the remedy by any provisions that do not impair the right. Bishop on Contracts, Sec. 571; Wade on Retroactive Laws, See. 198; Penniman’s case, 103 U. S. 714; Gordon vs South Fork Canal Company, 1 McAllister 513.
    Hence Act No. 133 of 1888 does not impair the obligations of previous contracts of the kind, and between the character of parties described in the act, and is therefore constitutional.
    2. Section 716 of the Revised Statutes of the United States, considered in connection with Sections 1 and 2 of the Act of 1875 (U. S. Statutes 470) operates to prevent. the issuance by a United States Circuit Court of a writ of mandamus, except in aid of a jurisdiction already acquired, as well as in the case of a suit removed to it from the State court, as in the ease of an original proceeding before it. Rosenbaum vs. Bauer, 120 IJ. &. 453 ; Smith vs. Bourbon county, 327 Ü. S. 112.
    .3. Since the passage of the Act of 1887 (24 U. S. Statutes at Large, page 553) amending See. 2 of the Act of 1875, determining the jurisdiction of the Circuit Court of (die United States, and regulating the removal of cases from the State courts, etc.; no appeal lies from a judgment by the United States court remanding a ease to the State court.

      4. No plea will lie in a State court of the pendency in a United States Circuit Court of the same district of another suit betwen the same parties, for the samo object, and growing out of the same cause of action. Hampton vs. Barrett; 12 La. 159; Mix vs. His Creditors, 39 An. 626, affirming the doctrine of Stanton vs. ISmbrey, 93 U. S. 548, and of Gordon vs. Gilfoil, 99 U. S. 169; Crescent City Live Stock Landing and Slaughter House Company vs. The Butchers’ Union Livo Stock Landing and Slaughter House Company, 12 Fed. Rep. 225; Weaver vs. Field, 16 Fed. Rep. 22; Latham vs. Chaffee, 7 Fed. Rep. 520; 3 Summer 155; 2 Clifford 322.
    Harr?/ H. Hall for Defendant and Appellee:
    i.
    The pendency of another action for the same cause in the Circuit Court of the-United States, having jurisdiction, is a good plea in abatement in the StatO' court of the same district. Vide 22 N. H. 23: 3 McLean 22; 4 McLean 233; 5 Biss. 44. *
    Thatcher’s Practice, Circuit Court, page 417; Wait’s act. and do., vol. vi., page 399.
    In Memphis vs. Lean, 8 Wall., page 64, the United States Supreme Court decides the issue squarely.
    In 93 U. S. 548, the courts were in different States, and in 99 XT. S. 175, issues were not the same.
    Vide Code of Practice 335, No. 2; Hennen’s Digest 1166, pagos t -5. As the analogy to res adjudicata, Vide do., page 1167, No. 12.
    Act 133 of 1888 impairs the obligation of the charter contract and is unconstitutional. Private charters are held to he contracts. Cooley on Const. Lim., page 337.
    And laws which exist at the time and place of the contract enter into and form a part of it. Black Consti. Prohih., page 163; Cooley, page 346.
    1. There was no such thing as enforcing its obligation by specific performances, because the payment of damages was an adequate remedy. C. C. 3927; Morawetz ii. par. 1134, 5-6; Green’s Brice’s XTltra Vires 463.
    The sole obligation to which the railroad was exposed for non-performance of the obligations sought to he enforced was to pay the cost of the work. 37 An. 589.
    To impose upon the company the obligation of having its franchises seized and its business of public carrier conducted by the Sheriff, as provided in the Act of 3888, would mean the annihilation of its charter, rights and privileges.
    2. Mandamus did not lie to enforce a contract obligation, because of no adequate remedy apart from that writ. O. P. 830; Vide 9 An. 513; 57 An. 587; 39 N. V. 171.
    TIT.
    The application to remove should have been granted.
    Irrespectively of its ownership, the right to remove is granted in all eases arising* under the constitution or laws of the United States. U. S. Statutes at Large, March 3, 1887, page 552; Desty on Removal, page 47.
    The rule is that if some right which is asserted will bo defeated by one construction of tbe constitution, then the case may be removed. 96 U. S. 595; 100U. R. 264, 115 U. S. 248; 118 U. S. 112; 102 U. S. 141; 111 U. S. 449; 118 U. S. 130.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by way of mandamus, against the New Orleans and Northeastern Railroad Company for the purpose of coercing its compliance with one of its obligations to and in favor of the City of New Orleans, and which is contained in Section 2 of Ordinance No. 7483, Administration Series, adopted by the City Council on the 9th of December, 1881, it being an ordinance granting said railroad company the right to construct, operate and maintain, by steam, a railroad for the transportation of freig’ht and passengers, from a designated point on the shore of Lake Pontchartrain to a point designated on the shore of the Mississippi river, within the limits of the City of New Orleans; and also granting it the right to occupy a portion of the river front, on certain conditions stipulated therein.

The interpretation placed upon the contract rights and obligations of the parties respectively, as flowing from said ordinance, on the part of the City Attorney is, that the city granted the railroad company the right to occupy, for its purposes and uses, that portion of the levee, battux’e and wharf, beginning at Port street, and extending down the river to Montegut street, a distance of one thousand feet, and the right to erect and maintain thereon, at its own expense, such ferry facilities, wharves, piles, machinery and other structures as shall be necessary and convenient for the transaction of the business of the company; but that in consideration therefor, the railroad company obliged itself to keep said wharves in repair; to replace the wharves which had been constructed by the city and occupied by it, at such a point as might be designated; to pave Levee street, from Louisa to Poland street with square blocks of granite — the laying of this pavement to be commenced immediately after it obtains possession of said one thousand feet of levee front and batture, and to be completed within one year thereafter.

That the ordinance provided that the grant concerning the wharves and levees is not to go into effect until the consent of the wharf lessees is first obtained.

The petition alleges that the one thousand feet of levee front and wharves was released to the railroad company by the wharf lessees on the 18th of May, 1887, and that it obtained possession and control of same at that time, but has made no attempt to comply with the stipulations of its contract, notwithstanding the delay within which the work of paving was to be completed expired several months prior to the institution of this suit.

Before the delays for answering had expired, the defendant filed a petition for removal of the suit to the United States Circuit Court, and same having been refused, it filed an exception of lis pendens. On the following day the respondent filed an answer or return — first, fully reserving aU of its rights under its motion to remove and plea of lis pendens — in which Act 133 of 1888 is assailed as unconstitutional and void in that, if enforced, it would impair the obligations of respondent’s charter contract, and contravene the provisions of the constitution of the United States; and, in the alternative, a general denial is plead.

The judge a quo overruled the plea of lis pendens, maintained the constitutionality of the law, and, on the evidence, decided that “as tiie respondent did not * * acquire or accept possession under Ordinance 7483 A. S., and as the possession which it enjoys is not the character of possession contemplated by that ordinance, the obligation to pave cau not be enforced. ’ ’

He discharged the rule nisi, refused a peremptory mandamus, and the relator has appealed.

I.

Of the motion to remove:

Both the parties to the suit being citizens of Louisiana, it can not be removed unless there is some federal question involved. Respondent’s counsel’s contention, in this regard, is twofold, viz:

I’Hrst. That Oity Ordinance 7483, A. S., imposes on the railroad company certain onerous “conditions for the privilege of doing that which it had a right to do” under its charter, without the sanction of the city, and to that extent its contract would be impaired if said ordinance be enforced.

Second. That Act 133 of 1888 under which this mandamus proceeding- was instituted, impairs the obligation of said company’s contract with the city as found in said-Ordinance 7483, A. S., and with the State and city, as found in its legislative charter, Act 106 of 1871, by altering and changing the remedies existing at the inception of said contract, for the enforcement of the obligation thereof.

Respondent’s contention in respect to the latter being, that, at the time said contract was entered into, its obligations thereunder could only be enforced by suit for compensatory damages for non-performance thereof, and this statute authorizes the enforcement of specific performance by mandamus, and that the addition of this remedy impairs the contract obligations of its charter and city ordinance.

Counsel for the city replies that, if the defendant’s charter is a-protected contract in the sense of the United States Constitution, and the ordinance is such a law as may impair its obligation, yet the facts-do not sustain defendant’s contention: (1) Because its charter only authorized the company to enter the city by way of Lake Pontehartrain, and extend its tracks to a point below Canal street, not nearer' to the Mississippi river than Claiborne street; (2) because the city ordinance, for the first time, conferred on the defendent any riparian right, or right to occupy any portion of the levee or batture on the river front.

An attentive examination and careful comparison of the charter and ordinance have perfectly satisfied us of the correctness of this assertion. The charter confers no riparian right whatever*, and in this respect the Ordiiiance 7488, A. S.,is its sole dependence. Such being the case, Act 133 of 1888 does not impair in any way the defendant’s charter obligations, and Ordinance 7483, A. S., does not impose any conditions upon the exercise of a previously granted charter right.

The motion to transfer was therefore properly refused by the judge a quo. But it appears from an exemplification from the records of the United States Oircuit Court, that, subsequently to this refusal, the respondent caused a certified copy of the record of the court a qua to be filed therein, but on the hearing of a motion of relator to that effect, the cause was remanded and it has remained in statu quo.

II.

The ground of the respondent’s plea of lis pendens is the pendency of another suit for the same object, before the United StatesOircuit Court, entitled “City of New Orleans vs. New Orleans and Northeastern Railroad Company, No. 11,375.”

Our law declares that 1 ‘the same suit can not be brought before two separate courts, though they be possessed of concurrent jurisdiction, except by discontinuing the suit first brought before the answer is filed.” O. P. 94.

It appears that the suit above referred to was first filed in the Civil' District Court and was numbered therein 16,444, and was subsequently transferred to the United States Oircuit Court, and was-therein transformed into an equity proceeding and given the present number 11,375.

That suit had for object to coerce the railroad company to comply with its contract made in pursuance of Ordinance 7483, A. S., and particularly with the provisions of Section 2, which confers on the company the right to occupy and use portions of the levee and batture between Port' and Montegut streets, and obliges it to erect thereon certain wharves, piles, etc., to replace certain wharves constructed by said city, and to pave Levee street with square granite blocks. The averment is made therein that “the company has failed to commence or prosecute the construction” of said works, and its prayer, inte?' alia, is that it shall “be ordered to pave, at its own expense, with square blocks, Levee street from Louisa to Poland street; ’ ’ but there is no allegation in the petition to the effect that the wharf lessees had ever released to and in favor of the railroad company the levee front and existing wharves, at the place indicated and set apart, and which release was stipulated in Ordinance 7483, A. S., to be a condition precedent to its taking possession thereof, and without which release the company was not in default, and the city without a right of action, pro tanto. Jr.wiu

The failure of the plaintiff in that suit to set out specifically such a release, was made a matter df special defense in that cause after it had been transformed into an equity proceeding in the United States Circuit Court.

That suit was filed in January, 1886, and it was removed in May following.

The release of the wharf lessees was not granted until the 18th of May, 1887, subsequent to the filing of defendant’s cross-bill and answer in the equity case. It is clear that that suit was premature and afflicted with an incurable defect which would have defeated its object in that respect and resulted in a judgment for the defendant.

In addition, we have the defendant’s own admission that Act 133 of 1888 confers the right on the city to enforce specific performance by mandamus, and that such right was not theretofore conferred by ordinance.

These are most material differences, in respect to the legal means of enforcing the city’s rights, and there is in the confection of the pleadings a corresponding difference.

But it appears from an exhibit that is annexed to the record that the United States Oircu.it Court has remanded the suit to the Civil District Court for want of jurisdiction of that court, and that the interference has ceased to exist. It also appears, by another exhibit, that said suit was dismissed as of non-suit, after it was so remanded. This, the City Attorney had the undoubted right to do, under the circumstances of that case.

In Schmidt vs. Brannon, 10 An. 26, our predecessors decided this identical question, and held:

“Litis pend&rn is not necessarily a peremptory exception ; it is cured by the termination of the suit mentioned in the plea. Such was the case in the present instance. The litigation pleaded in the exception being at an end when the exception was argued, the exception fell to the ground as a matter of course.”

In Adams vs. Lewis, 7 N. S., 401, this question was agitated and decided at an early date in our jurisprudence, and the court said:

“First, it is said that the suit being pending in another court, he no longer had any control over it and could not dismiss it. But, though he could not dismiss the suit, he might renounce all advantages under it. The place where he made the inconsistent demands can not affect his right of deciding between them. It is sufficient if he does so before the court where one of the eases is pending, to enable that court to proceed with the claim to which he gave preference. All that it should require is that the election be made in such a manner as would prevent the plaintiff taking advantage of the contrary demand.”

These decisions are, to our minds, conclusive of the present controversy on that subject. We have taken the pains to discuss it as res nova, because it was not fully considered in Mix vs. His Creditors, 39 An. 626, as it was not distinctly an issue therein, on account of defendant’s answer.

In that opinion we merely cited Stanton vs. Embrey, 93 U. S. 553, and Gordon vs. Gilfoil, 99 U. S. 169, in support of the dicta that on the question of litis pendentia the federal jurisprudence was in consonance with our own. But, that the purport of these opinions may not be misunderstood, we quote from them. In the former the court says:

“Suppose it went otherwise, still it is insisted by the defendant in error that the pendency of a prior suit in another jurisdiction is not a bar to a subsequent suit in a Circuit Court or in the court below, even though the two suits are for the same cause of action; and the court below concurs in that proposition.”

In the latter, at page 178, the court says: “But it has frequently been'held that the pendency of a suit in a State court is no ground for a plea in abatement to a suit upon the same matter in a federal court.”

This being a recognized rule of federal jurisprudence, it should be adhered to in our own courts as matter of judicial reciprocity.

The plea was correctly overruled.

III.

On the merits the first question that occurs for examination and decision is whether or not the respondent acquired possession of the batture, levee and wharves on the river front under and in pursuance of Ordinance 7483, A. S.; and the second is whether the character of its possession is such as was contemplated by that ordinance — for it is upon the solution of these two propositions that the issue depends.

The respondent’s counsel formulates in his brief this statement, viz:

“But underlying all of these minor objections is the well ascertained fact that the defendant has not taken possession of the 1,000 feet of river front under Ordinance 7483, which sought to impose the obligation of paving; but it took possession under the obligations of Ordinance 2245, which did not impose paving, and with the distinct agreement embodied in that ordinance and its attendant contract that the question of liability should be held in abeyance, and should not be in any manner affected by the qualified possession under this Ordinance 2245,” page 17.

Or, in other words, “that the possession of the 1,000 feet of river front and batture, described in Section 2 of Ordinance 7483, A. S., was to be tvndisputed, in order that the obligation to pave should become effective and executory on the part of the defendant.”

The proof is, that respondent’s occupancy commenced in August and September of 1887, and on the 18th of May; 1887, the wharf lessees executed a release, in which it was stated, viz:

“That, whereas, Ordinance No. 7483, A. S., provides that no grants therein be made of wharves or wharfage facilities, etc., it shall go into effect without the consent of the wharf lessees; now, therefore, in pursuance thereof, they * * do hereby consent that the wharf' privileges and grants made in said Ordinance No. 7483, A. S., shall at once go into effect.”

That is clear, concise, absolute and unmistakable in terms. This • release is made under and in conformity with the conditions stipulated in Ordinance 7483, A. S., and was intended to and 'did put its provisions into operation.

Not until that release was executed, and immediately after it was executed, the respondent took formal possession of said batture, levee, wharves, and other terminal facilities and franchises on the Mississippi river front.

The second section of Ordinance No. 7483, A. S., provides that the respondent “shall have the right, and the same is hereby conferred, to occupy for its purposes and uses that portion of the levee, batture and wharf * * beginning at Port street and (extending) 'a distance of 1,000 feet down the river to Montegut street, and to erect ■and maintain t thereon, at its own [expense, such ferry facilities, wharves, piles, machinery, elevators, yards, tracks, depots, stations, sheds and other structures (as) shall be necessary and convenient for the transaction of its business, etc., * * provided, * * that the .said company shall replace the wharves constructed by the city and occupied by said company at such point as may be designated by the Administrators of Commerce and Improvements and City Surveyor, and shall pave Levee street with square granite blocks from the extremity of the paving on that street, or from Louisa street to Poland street; and the City of New Orleans shall be entitled ‘to remove all the cobble stones now on said street, * * and the square block pavement on ■Jjevee street shall be commenced immediately after the said company obtains possession of the one thousand feet of river bank and levee conceded and alloived to them by this ordinance, and continue and finish the same within one year. ’

That section concludes with the final proviso ‘ ‘ that no privilege or grant concerning or referring to the wharves and levees herein granted shall go into effect until the consent and permission of the wharf lessees be had and obtained, etc.”

The provisions of that section of the ordinance seem to be quite as clear and equally as free from ambiguity as the written release of the wharf lessees is.

The query then is, in what respect does Ordinance No. 2245, Council Series, alter, amend, modify or change the terms and conditions of the grants and privileges contained in Section 2 of Ordinance 7483,. A. S., just quoted ante.

In order that we may be concise, and commit no error, or make no mistake, we quote'it in its entirety, the former, viz.:

Mayoralty op New Orleans, \ City Hall, April 30, 1887. /

No. 2245 — Council Series.

“Whereas, There is now existing a litigation between the City of' New’Orleans and the New Orleans and Northeastern Railroad Company, as appears by the suit of the City of New Orleans against the New Orleans and Northeastern Railroad Company, No. 11,375 on the docket of the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana, which is not likely to be terminated in a short time; and

“Whereas, There are now no sufficient wharves in front of the depot property of said railroad company and below Port street in the third district of New Orleans, and it is desirable that wharves should be constructed there; and,

“Whereas, The said New Orleans and Northeastern Railroad Company are willing to construct wharves on the river front below Port street, and advance the necessary outlay of money for that purpose on certain conditions, notwithstanding the pending of the said suit, which is'not to be affected thereby; and

“ Whereas, The consent of the wharf lessees, as required in paragraphs of Section 2 of Ordinance No. 7483, A. S., has been obtained:

“ Section 1. Be it ordained by the City Council of New Orleans, That the Mayor be and he is hereby authorized and directed to enter into a-contract by notarial act with the New Orleans and Northeastern Railroad Company for the construction and maintenance of wharves on the river front, from the prolongation of the lower; property line of Port street to the prolongation of the upper property line of Monte-gut street, in the manner and under and within the terms and conditions contained in the said Ordinance No. 7483, A. S., relative to the occupation and use of said river front provided by said Ordinance No. 7483, under the following conditions, to-wit:

“1. The said New Orleans and Northeastern Railroad Company shall rebuild, without unnecessary delay, not to exceed four months, at any other place within the third district of this city as may be designated by the City Council of New Orleans, new wharves equal in extent, square for square, as per measurement of the City Surveyor, to replace the wharves which are or may be on the said river front at the time the said New Orleans and Northeastern Railroad Company takes possession of the same.

“2. That should the right to the use of said space of river front and the said wharves thereon be adjudicated and decreed as not conferred on the said railroad company, then and in that case the next wharf lessees shall, out of the funds for the new wharves provided in their contract with . the city, repay said railroad company the entire amount and value of all wharves constructed by them.

“Sec. 2. Be it further ordained, That should the right to said space of river front and said wharves to be constructed between Port and Montegut streets be adjudicated and decreed as not legally conferred on said railroad company, then and in that case the whole amount of money outlaid by said railroad company shall be refunded and paid to said railroad company out of the first money to be appropriated to new work in the construction of wharves in New Orleans, under a renewal of the present lease or any other lease that may here - after be made of the wharves, and the City of New Orleans subrogates the said railroad company to its rights against any wharf lessee to have such appropriation of the funds for new work, and in default thereof the City of New Orleans shall pay said moneys to the said railroad company.

“Sec. 3. Be it further ordained, That it shall be especially stipulated in said contract that nothing in this ordinance shall in any way relieve the said railroad compaiw of any of the obligations imposed by the provisions of said Ordinance No. 7483, A. S., or in any way impair or prejudice the rights of the City of New Orleans now in contestation in the suit of the City of New Orleans vs. said railroad company, No. 11,375 on the docket of the Circuit Court of the United States for the fifth circuit and eastern district of Louisiana, nor shall the rights of the said railroad company as set forth in the said suit No. 11,875 be prejudiced in consequence of this ordinance and the notarial agreement which shall be according as the said ease may be determined, and as the rights of said railroad company may be adjudicated and decreed therein on final decree in the Appellate Court, which said suit shall proceed to a final termination thereof for the purpose of fixing the rights of the parties thereto; nor shall this agreement be offered in evidence or referred to in said suit.

“Adopted by'the Council of the City of New Orleans, April 26, 1887.”

The ground that this ordinance was intended to and did cover may be summarized thus, viz.:

1. Whereas suit No. 11,375 supra “is not likely to be terminated in a short time.”

2. That there are no sufficient wharves in front of the depot property of the respondent.

3. That the defendant is willing to construct wharves on the river front below Port street, and advance the necessary outlay of money for that purpose, notwithstanding the pendency of said suit.

■1. That the consent of the wharf lessees has been obtained in accordance with section 2 of Ordinance No. 7483, A. S.

5. That the Mayor is authorized to enter into a notarial contract with the respondent “for the construction and maintenance of wharves, etc., in the manner and under and within the terms and conditions contained in said Ordinance No. 7483, A. S., relative to the occupation of said riverfront, under the following conditions, viz: ”

6. The respondent shall build certain new wharves to replace those taken possession of by the company.

7. “That should the right to the use of said space of river front, and said wharves thereon be decreed and adjudicated as not legally conferred on said railroad company, then, and in that case, the next wharf lessees shall 'f * repay the said railroad company the entire amount and value of the wharves, etc.”

8. “That should the right to said space of river front and said wharves * * be adjudicated and decreed as not legally conferred upon said railroad company, then and in that case the whole amount of money outlaid by said railroad company shall be refunded,” etc.

The foregoing are all the points covered by the Ordinance 2245, A. S., and they do not cover the question of paving Levee street; that seems to have been left uninterrupted entirety. Simplified, the tenor and substance of it is, that the respondent was willing to do the work and accept the grants and concessions that were stipulated in its favor, provided that should either its use of or its right to the quota of batture, etc., be adjudicated in that suit as not legally conferred, it should be fully compensated and reimbursed the amount of its outlay.

The final clause — Section (3) three of the Ordinance No. 2245, O. S. —is a saving clause and provides— •

1. That the contract between the Mayor and the respondent shall specify “that nothing in this ordinance, shall in any way relieve the said railroad company of any of the obligations imposed by the provisions of said Ordinance No- 7483, A. S.;” and that it shall not interfere with the rights of either party in the pending suit; “which shall be according as the case may be determined, and as the rights of said railroad company may be adjudicated and decreed thereon on final decree in the appellate court, which said suit shall proceed to a final termination thereof for the purpose of fixing the rights of the parties thereto; nor shall this agreement be offered in evidence or referred to in that suit."

This was intended to operate as a mutual shield and safeguard against danger flowing out of that suit to either party thereto; while the contract stipulations enabled the respondent to do the work with the assurance of it being fully reimbursed its money outlay, and the city to have her wharves and streets put in repair according to contract.

As we have seen, there was in that suit an incurable vice, and it has been discontinued and terminated and this suit is in its stead. We do not regard the stipulation that “said suit shall proceed to a final termination’ ’ as in the nature of a covenant that it should not be abated or dismissed, but merely that the ordinance should not have the effect of discontinuing or abating it. This clause stands apart from the contracting clauses quoted from the ordinances.

In pursuance of Ordinance No. 2245, O. S., the relator and respondent entered into a notarial contract on the 25th of May, 1887 — only a few days subsequent to the execution of the release of the wharf lessees — wherein it was stipulated on the part of the city that she granted to respondent “the right to construct and maintain wharves on the river front,” from Port to Montegut street, “in the manner and under and within the terms and conditions contained in Ordinance No. 7483, A. S.;” and wherein it was likewise stipulated on the part of the respondent that it would “cause to be constructed and maintained wharves on the river front” from Port to Montegut street' “in conformity to the provisions and requirements_of Ordinance No. 7483, A. S.”

Both ordinances are incorporated in full in the contract, and then follow stipulations precisely in conformity thereto, as outlined above..

After making a most careful examination and comparison of said ordinances and contracts, we feel satisfied'that there is nothing precarious or uncertain in the respondent’s possession of the terminal facilities granted it by the city; that the company acted in view of all the stipulations in those two ordinances in its favor, and of the obligations and conditions they imposed upon it. It was willing to take possession and to erect wharves, etc., on the sole condition that it should be remunerated in case of eviction by a decree in that suit.

The proposition of the railroad company condensed is, that the possession of the one thousand feet of levee is disputed and precarious, because Ordinance 7483, A. S. is assailed as illegal in Circuit Court suit 11,375, and that the effect of that'suit was suspended by Ordinance 2245, O. S., under which_it went into possession.

That suit was brought by the city to coerce the railroad company’s full compliance with all of its obligations under the former ordinance, and inter alia the obligation to pave Levee street. In that suit the defendant’s answer was, that the city was seeking, by that ordinance, illegally to enforce certain conditions upon the use of her streets, and its prayer was, that the stipulation in said' ordinance in relation to paving Levee street be annulled, on the ground that it is entitled, under its charter, to all of the rights that are purported to be conferred by said ordinance, and that the petition be dismissed with costs.

In the first place, we have found and decided that the riparian rights and franchises purporting to have been conferred by that ordinance, were not, as a matter of fact, conferred by the charter of the railroad company, and, therefore, the supposed illegality of said ordinance did not, as a matter of law, exist. Thereby, we have disposed finally of the question of the alleged illegality of said ordinance, which was set up in the former suit, as a reconventional demand, though it. was not as a matter of fact, such a demand. Meyers & Co. vs. Burke, unreported.

In the second place, we have found and decided that, as in that suit, there was no averment that the wharf lessees had made the required release of the wharves in question, that suit disclosed no right in the city to compel the defendant to pave Levee street, and that this lack of essential averment was an incurable defect therein, in-this particular, and, upon trial thereof, judgment would have, necessarily, gone against the city on that issue, as of non-suit. Hence,, the right of the company to. pccupy Levee street and its obligation to do the paving, were not issues in that ease, and. could not have-been decided therein.

We have also found and decided that the question of paving Levee street is not mentioned in Ordinance 2245, O. S., under which the defendant claims to have acted in entering into possession of its batture rights and franchises, and hence its possession of the one thousand feet of levee was in pursuance of Ordinance 7483, A. S., and was not only unquestioned, but expressly affirmed by the city.

But that suit was voluntarily discontinued by the city, and the company’s charge of illegality against said ordinance passed out of ■court with it.

This suit has for its sole object to coerce the defendant to pave Levee street, and it is met with a general denial as an answer. There can be no serious question as to the right of the city to insist on the respondent’s performance of this part of its contract according to the provisions of Ordinance 7483, A. S., and the City Surveyor’s specifitions.

It is therefore ordered that the judgment appealed' rom be reversed, and it is now ordered and decreed that tn ' visional mandamus be made peremptory, and that the respondent be taxed with .all costs, in both courts.

Dissenting Opinion.

Fenner, J.

1. Ordinance No. 7483 shows that the matters here involved are included only in the second section, and that the provisos touching the paving and wharves, relate exclusively to the wharf levee privileges, and have no connection with other privileges conferred in other parts of the ordinance.

2. It is clear that the obligation to pave can not be imposed on the railroad company without its assent express or plainly implied.

3. It is equally plain, from suitNo; 11,375 that, priorto Ordinance '2245, the railroad company did not consent to, but denied this obligation, and had never taken possession of the “levee, batture and wharf,” and could not do so, because the wharf lessees refused their consent.

4. If the railroad company had been willing to accept Ordinance 7488, nothing would have been necessary but to obtain the consent of the wharf lessees, and there was no necessity whatever for Ordinance 2285.

5. That ordinance shows that, independent of the consent of the lessees as recited in its preamble, it was necessary, in order to induce the railroad company to act, to embody other new and additional conditions and stipulations, not only in the ordinance itself, but in an express contract between the parties.

6. Amongst those stipulations is found the following:

“Nor shall the rights of the said railroad company, as set forth in .said suit No. 11,375, be prejudiced in consequence of this ordinance and the said notarial agreement, which shall be according as the said case may be determined and as the right of the said railroad company may be adjudicated and decreed therein on final decree in the appellate court, which said suit shall proceed to a final termination THEREOF FOR THE PURPOSE OF FIXING THE RIGHTS OF THE PARTIES thereto; nor shall this agreement be offered in evidence or referred to in said suit.”

And in the contract entered into between the parties, the meaning ■of the words “Anal termination” was more fully expressed as being until said suit 1 ‘shall be adjudicated and decreed on Anal decree in the appellate court,” and that “said suit shall proceed to a Anal termination thereof for the purpose of Axing the rights of the parties thereto.”

7. Only after, and under the foregoing ordinance and contract, did the railroad company take possession of the wharves and levee.

8. It can not be disputed that the right'of the city to impose, and the obligation of defendant to [perform the duty of paving Levee ■street were directly at issue in suit No. 11,375.

I quote from the prayer of the city’s petition therein the following:

“That said company be ordered to pave, at its own expense, with square granite blocks, Levee street, from Louisa to Poland street,” and from the prayer of defendant’s answer and demand in reconvention, the following: “That the requirements of said Ordinance No. 7483, A. S., and for the paving of Levee street, with square granite blocks, from Louisa to Poland street, be decreed illegal, null and void.”

9. Unless the voluntary dismissal, by the city, of the suit No. 11,375, can be accepted as a termination thereof by “Anal decree in the appellate court,” or a compliance with the stipulation that “said suit shall proceed to a Anal termination thereof for the purpose of Axing the rights of the parties thereto,” I do not see how the city can prosecute the present action without violating her clear and solemn contract. If the words quoted have any meaning or purpose, it is to prevent the very thing which the city has clone, viz: the discontinuance of the suit, and to require a final settlement by judicial decree, in that suit, of this contested right, as a condition precedent to such an action as the one now brought.

10. The sole purpose of Ordinance 2245 was to enable defendant to take possession of the wharves and levee without thereby accepting the provisos of Ordinance 7483, and to suspend all conflicting claims under the latter, until finally adjudicated in the pending suit, and to hold that by acting under the later ordinance, defendant accepted the former, seems to me to contradict and obliterate not only the terms hut the sole object and purpose of the later ordinance and contract.

However improvident may be the suit No. 11,375; however untenable may be the position taken therein by the company; however clear it may he that the company can not retain the wharf and levee privileges granted in the second section of Ordinance 7483, without performing the conditions attached to the grant — the stubborn facts ■ remain that the company had the option to accept or decline the grant, and by declining, to escape the conditions; that she has never • accepted the grant except sub modo and subject to new conditions expressly stipulated in a solemn contract; and that the city being a party to and bound by that contract, is powerless to repudiate it, to convert the company’s conditional acceptance into an absolute ac^ ceptance, and to deprive the company of its option to abandon the wharf and levee privileges, and thereby to escape the conditions of the grant.

For these reasons I concur in the view taken by the judge a quo and dissent from the opinion and decree herein.


author: McEneky, J.

text:
    No. 10,444.
    Westinghouse Electric Company vs. Western Assurance Company of Toronto.
    When several policies are taken out in different companies, without any relation to each other, on the same propei'ty, they are independent contracts, and the policy in one company can not be received in evidence to explain or vai*y whai is contained in the other.
    Where property is valued at $90,000, and an insurance is effected on -1-36 of said amount, and there is a total loss, the company is responsible for the amount insured, $2,500, upon which it received a premium. The policy can not be construed to mean that the insurer is liable only for 1 -36 of the loss.

      PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J,

    Farrar, Jonas <& Kruttsehnittj for Plaintiff and Appellee:
    1. The policy being prepared by tin1, insurer himself, it is to be most strongly construed against him. National Bank vs. Insurance Company, 95 United States, p. (¡78.
    2. ‘*11 is a recognized rule in the construction of statutes that a thing which is within the intention of a statute is as much within the statutes as if it were-within the letter; and a thing which is within the letter of the statute is not within the statute unless it he within the intention of the makers.” People vs. Utiea Insurance Company, 15 Johns, 858. This proposition is equally applicable to oilier written instruments. The object of all symbols is to convey the meaning-of those who nso them, and where that can he ascertained it is conclusive. The intent of the law makers is the law, and here the intent of the parties is the contract. Insurance Company vs. Uridley, 100 United States, p. 614.
    8. *• Having indemnity for Us object, the contract is to ho construed liberally to that end, and it is presumably the intention of tlio insurer that the assured shall imderstand that in case of loss he is to be protected to the full extent which any lair interpretation will give. The spirit of the rule is that where two interpret tutions equally fair may be given, that which gives the greater indemnity shall prevail.”* May on Insurance, Section 174, p. 208; V. & A. Meyer vs. Queen Insurance Company, lately decided by this court and not reported.

      L Tim policy sued on is plainly a policy guaranteeing the plaintiff against loss or damage by fire to the extent of $2,500 on the property described.
    5. It is not a valued policy, and can not reasonably bo construed as such.
    6. It contains no guarantee by 1 he assured that the property is worth 'any fixed sum. or that he will carry any part of the risk.
    7. It is not a policy upon any proportion of a risk fixed and valued at a particular amount.
    s. Read in the light of surrounding circumstances, it was clearly the intention of the parties that of the $90,000 of insurance to bo negotiated in various companies, $2,500 worth, or L-86th ol* the risk, was assumed by this company.
    9. These surrounding circumstances were admissible for the purpose of'ascertaining the subject matter of the contract. 22 Wallace 118; 95 U. S. 95;101U. >S. 271; 102 T. S. 65.

      Harry H. Hall, for Defendant and Appellant.
   The opinion of the court was delivered by

McEneky, J.

This is a suit to recover from the defendant company insurance to the amount of $2,500 on the plaintiff’s property. The facts are as follows:

“In the year 1887 the Southwestern Brush Electric Light and Power Company of New Orleans employed Charles L. Ulhorn, insurance broker, to place $90,000 of insurance upon their plant. This $90,000 of insurance was placed at various times, for various amounts, in various companies, the policies being substantially of the same form and effect as the extracts from the hereinafter set forth policies. Prior to the 26th of March, 1888, $30,000 of the insurance expired by limitation, and was not renewed.

On the 26th of March, 1888, the plaintiff in this cause, the Westinghouse Electric Company, under a fi. fa. from the Circuit Court of the United States, levied upon all the property insured belonging to the Southwestern Brush Electric. Light and Power Company; $50,500 of the then existing insurance was continued, pending seizure upon the property, by proper endorsements by the companies on each policy.

The other $9,500 of existing insurance was not renewed, because the companies holding policies refused to renew while the property was under seizure.

On the 1st of May, 1888, under the fi. fa. aforesaid, the whole of the property insured was adjudicated to the Westinghouse Electric Company, plaintiff in this cause, and the then existing $50,500 of insurance was contined in favor of the Westinghouse Electric Company, as owner of the property by proper endorsements, such as those -which appear upon the policy sued on in this cause.

The following is the manner in which the risk was described in the policies making up the $50,500 of insurance thus continued in favor of the Westinghouse Electric Company:

Springfield Insurance Company — “Against loss or damage by fire to the amount of $2,500, or one-thirty-sixth of each,'of the following-items :

On their brick, slated building, situated on Dryades street, between Union and Gravier streets, in the City of New Orleans, and known as the Southwestern Brush Electric Light and Power Company, $6,000.

“ On all machinery, engines, boilers, appurtenances, and appliances, used in said works, and contained in the above described building, $84,000. With privilege to make necessary alterations and repairs.- Other concurrent insurances permitted without notice until' required.”

Phoenix Insurance Company — “ Against loss or damage by fire to the amount of $2,500, or 25-900 of each of the following items.”

Balance same as above.

Home Insurance Company, New Orleans — “ Against loss or damage by fire to the amount of $26,000, as per form attached.”

Balance same as above.

Hamburg and Bremen Insurance Company — " Against loss or damage by fire to the amount of $3,500, or 7-180 of each of the following items.”

Balance same as above.

Home Insurance Company, of New York — “ Against loss or damage by fire to the amount of $3,500, being 35-900 in the following risks and amounts.”

Balance same as above.

Western Insurance Company, of Toronto — Description contained in original policy, made part of this statement.

On July 16, 1888, the property was totally destroyed by fire. Due notice of loss was given to all the companies, and proofs of loss in due form of law were transmitted to the defendant on August 6, 1888. Controversy having arisen about the amount of the loss, arbitrators were appointed by both parties, and on August 16, 1888, the loss was adjusted by the unanimous report of these arbitrators at the sum of $75,413.75, of which $71,763.70 was the loss adjusted upon the machinery and $3,650 was the loss adjusted upon the building.

Thereupon the plaintiff demanded payment of the defendant of the full amount of the policy, the sum of $2,500, which sum the defendant refused to pay, and this suit was brought.

The defendant denies liability until the award contained in the tenth condition of the policy has been complied with.

The above statement of facts disposes of this objection.

The defendant sets up specifically that the liability can not be greater than 1-36 of $75,413.75, the actual value of the property destroyed and loss sustained. The defendant appeals.

The plaintiff has filed a motion to amend by increasing the judgment to §2,500.

The policy is as follows:

"This policy of assurance witnesseth that: In consideration of the sum of fifty dollars, net, the Western Assurance Company does by these presents cause the Southwestern Brush Electric Light and Power Company, and their legal representatives, to be assured twenty-five hundred dollars on 1-36 of the following risk and amounts, as per printed form attached to this policy:

“The Southwestern Brush Electric Light and Power Company, on their brick, slated building, situated on Dryades street, between Union and Gravier streets, in the City of New Orleans, and known as the ‘ Southwestern Brush Electric Light and Power Company, $6,000.’

“ On all machinery, engines, boilers, and appurtenances and appliances used in said works, and contained in above described building, $84,000.”

There were other policies in different’ companies taken out on the same property for various amounts. The forms of these policies were offered in evidence and admitted over the objections of defendant, on the ground that they were res inter alios acta and irrelevant.

Each policy was a distinct, separate, and independent obligation, and it had -no reference whatever to any other. The obligations in one could not explain the doubts and uncertainties, if they existed, in the other.

This evidence, therefore, was improperly admitted. The insurance was 1-36 of a risk valued at $90,000.

The policy is plain and unambiguous in language and evident in meaning. The plaintiff insured with the defendant company property to the value of $2,500, for which risk he paid a premium of $50.

Tiie language employed will not admit of any other construction. There was a total loss of the property insured, and the defendant is responsible for the amount of the insurance effected on the property and upon which it received a premium.

Any other interpretation of this policy would be to destroy the object and purpose of the policy to indemnify the assured for the loss sustained. In the policy there is no stipulation that the assured shall bear any portion of the loss.

The judgment appealed from is, therefore, amended so as to allow plaintiff $2,500 as indemnity for the loss. In all Other respects it is affirmed. The defendant to pay costs of appeal.


author: Watkins, J.

text:
    No. 10,454.
    Mrs. Eliza Ivers, Widow, Etc., vs. Philip Ryan.
    1. The principle luis been definitely and well settled, that an action can not be assimilated to, and treated as a malicious prosecution, and the. plaintiff therein held liable lor exemplary or punitory damages, unless it discloses a want ot probable canse.

      2. The judgment of the court in such suit, dissolving a writ of provisional seizure, is final and conclusive as to the illegality of its issuance.

      3. In such ease the defendant in the rent suit is limited to the recovery of actual damages, in case the proof shows that plaintiff therein had probable cause for resort to the writ.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. R. Richardson for Plaintiff and Appellee.

      E. N. Whittemore for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff was the defendant in the suit entitled Philip Ryan vs. Mrs. Delhonde, in the First City Court of the City of New Orleans, in which demand was made for arrearages of rent, and her effects were provisionally 'seized. On the trial thereof, the writ was dissolved, but the judgment condemned the defendant to pay the sum of $15.60, and the cost of the main demand, and the plaintiff to pay the cost of the provisional seizure.

Soon after that judgment .was rendered the suit was brought for $2,500 damages remunerative and exemplary.

The items are as follows, viz:

1. Actual damages for attorneys’ fees,....... $25

2. Loss of time in attending court, and annoyance, etc., . 4.75

8. Exemplary or vindictive damages,.......2,000

$2,500

The case was tried by a jury, and there was a verdict and judgment for $225 in plaintiff’s favor, and the defendant has appealed.

An examination .of the statement of facts and the record of the suit in First City Court shows the latter was filed on the 12th of April, 1888, and demand was made for $82 as the balance of rent due, and a writ of provisional seizure was issued, and a constructive seizure was made of the tenant’s household effects, which were found in a house in a different neighborhood, to which she had removed on vacating the leased premises.

On the first trial there was judgment in favor of the plaintiff for $13 only, but on the new trial the allowance was increased to $15.60. The two decrees are, in other respects, the same.

The plaintiff was a tenant of defendant’s premises, No. 363Tchoupi-toulas street, by the month, each month of tenancy ending on the fourth of the month. On April 5,1888, $13 rent was tendered by the plaintiff, and same was by the defendant refused, and his refusal was accompanied by a demand made on her to vacate the leased premises. She remained in possession until the 9th of April, and having made another ineffectual tender of $13, she removed from the premises, at the same time making a third tender of that sum, and returned the keys of the house which was accepted. At the time of this occurrence the rent was, and for months previous jt had been, $13 per month, and this the plaintiff paid promptly.

While under this state of facts a provisional seizure was unjustifiable in law, as the contract of lease had actually terminated before suit was brought, and the tenant had tendered all that was due thereunder, and had removed from the leased premises; yet she was due her former landlord something for the time she continued to occupy the house after the rent expired. In the judgment of the city court-there is an allowance, on that score, of $2.60. It is apparent that the plaintiff in that case had probable cause for a resort to the writ, as his claim was not wholly groundless. For it is easy to see how he and his counsel might have made a mistake in regard to the continuance of the lease by tacit reconduction resulting from the tenant’s continued occupancy. The effect of recognizing the applicability of' this principle is the disallowance of all the plaintiff’s demands except for actual damages incident to the provisional seizure of her furniture. Barrimore vs. McFeely, 32 An. 1182.

The principle has been definitely settled that an action can not be assimilated to, and treated as a malicious prosecution, and the plaintiff therein held liable for exemplary or punitory damages, unless it was-wholly groundless, i. e., without probable cause; for, though a plaintiff bear ill will, or malice, toward the defendant, a cause of action for’ such damages does not exist, if there were grounds for the suit. Coleman vs. Insurance Company, 36 An. 92; Roos vs. Goldman, 36 An. 133; Dearmond vs. St. Amant, 40 An. 374; 3 R. 17; 9 R. 387; 5 An. 714; 8 An. 12; 12 An. 332, 53; York vs. Chilton, 4 An. 377; Kearney vs. Holmes, 6 An. 373; Accessory & Co. vs. McCerran, 13 An. 214; Talbert vs. Stone, 10 An. 537.

The decision of the judge of the city court is final and conclusive, as to the illegality of the issuance of the writ of provisional seizure. Cretin vs. Levy, 37 An. 183; Roos vs. Goldman, 36 An. 133.

The defendant in the rent suit is entitled to no damages except counsel fees incurred in relation to the dissolution of the writ of provisional seizure. Cretin vs. Levy, 37 An. 182; Accessory & Co. vs. McCerran, 13 An. 214; Barrimore vs. McFeely, 32 An. 1182.

The seizure of her furniture consisted merely in the appointment of a keeper, who was stationed at the door of the house or apartment which contained it. No part of it was removed therefrom. It was bonded and released almost immediately. No actual damages could have been suffered on that score, under the circumstances.

We think an allowance of $25 is a liberal compensation for attorneys’ fees in that suit, and to that amount judgment should be reduced.

It is, therefore, ordered and decreed, that the judgment appealed from be amended and reduced to $25, and as amended, same be affirmed, and the plaintiff and appellee taxed with cost of appeal.


author: Bermudez, O. J.

text:
    No. 10,394.
    Mrs. Mary Cline vs. Orescent City Railroad Company.
    Outlays for printing tlie brief required by the rules of the Supreme Court are not charges susceptible of being taxed, as costs of appeal, which the party cast is condemned to pay,
    PPEAL from the-Civil District Court for the Parish of Orleans. Monroe, J.

      B. R. Forman for Plaintiff and Appellant.

      John M. Bonner for Defendant and Appellee.
   The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff, having recovered a judgment, taxing the costs of appeal against the defendant company, claims that she is entitled to receive, as part thereof, the amount expended by her for the printing of the brief, required by the rules of this court, and which was used in this case.

The costs which a party may be judicially condemned to pay are made up with the charges which accrue in the course of the proceedings, in favor of the clerk and the sheriff, and even of any successful party to the suit, for disbursements necessarily incurred for the prosecution or defence of the same, and which are allowed by some positive provision of law to be taxed on the docket of the court.

Primarily, the costs are always due to the officers of the court by the plaintiff, who must make all required advances, subject, however, to a right of reimbursement by the defendant, when mulcted in same.

Hence, it is that, in his law dictionary, Abbott defines costs to be a pecuniary allowance made by positive law to a successful party to a suit, in consideration of and to reimburse his probable expenses. Vo Costs.

It is, therefore, an allowance by positive law — that is, by a tariff or some statutory provision or authorized rule of court, specifying the nature and amount thereof.

Article 552 C. P., which refers to costs before courts of original jurisdiction, however, says that the costs to be paid by.the party cast include not only the tax costs, but also the expenses incurred in taking testimony by commission, and the compensation allowed for their services to such experts, auditors or judicial arbitrators, as may have been appointed in the suit, and also the costs of copies of notarial acts of judgment and other copies of the record of public officers necessary in the cause.

Sometimes fees allowed to curators ad hoe arq taxed as costs in the case.

The Code of Practice is silent as to what shall be the costs in the Supreme Court; but, Section 756, R. S., specifies what charges the clerk of that court is authorized to make in cases before it.

Under the heading of “Proceedings before the Supreme Court,” there is to be found Article 908, C. P., under which the defendant here was condemned to pay the costs of appeal, but it does not state that among these shall be included those for brief printing.

It has been held several times that the costs which are taxable in a judicial proceeding do not embrace attorney’s fees; no doubt, because the services of each attorney are to be compensated by the party by whom he has been employed.

It is true that Article 145, O. P., authorizes courts to enact respectively rules establishing the mode of proceeding before them in all cases not provided for by the code, [provided the same be not contrary to the rules there prescribed; but this provision does not confer the power of determining what shall constitute costs in a case, and of having the same taxed to the party cast, over and above those which the law may have specially provided for.

The rules of this court require, under the authority of that article, as a mode 'of proceeding, a printed brief, in the interest of the parties litigant, to assist it in the examination and determination of controversies ; but they do not authorize the taxing of the cost of the printing of the same among the costs of the suit. This has never been done.

There is, indeed, no more reason to have the party cast to pay the costs of putting in print the argument of opposite counsel than there would be to have him to pay for the oral arguments.

In the absence of any positive law, or of any authorized rule or line of precedents supporting the pretension of the plaintiff, this, court can not recognize it without usurping the powers vested in another branch of the government.

It is, therefore, ordered that the rule herein be dismissed with costs.


text:
    No. 10,458.
    Hunter Stewart vs. Levis Bros.
    The owner of a note, pledged to secure in part, advances, to another person, pruridcd same do not exceed a certain sum ($3,000), over and abovo another sum ($10,000), to be previously advanced, can not be charged with a balance ($1,088), on further advances, after the first ones ($18,000) had been made.
    The obligations of a surety are stricti juris and must bo rigidly construed.
    A surety can not be subjected to more onerous conditions than the principal.
    A surety may set up effectually a defence of payment which his principal, if sued could have successfully pleaded.
    Damages for a frivolous appeal are allowable only in clear cases.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Horace L. Dufour for Plaintiff and Appellee.

      Howe & Prentiss for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, O. J.

The object of this suit is to recover the amount •of a note given in pledge to secure a debt which was paid, the same having been collected by the pledgee.

Prom an adverse judgment the defendants appeal.

The appellee asks an affirmance with damages.

It appears that, in order to secure advances to the owners of a plantation, the plaintiff pledged to the defendants a note owned by him, the transaction being evidenced by a written act which provides :

“It is agreed * * that said mortgage note is to be held in our possession as collateral for one-half of the amount in excess of $10,000 of the advances to be made by us to the * * Poley

Plantation, for the current expenses for carrying on the same for * * 1888, providing said excess does not exceed the sum of

$3,000. Levis Bros.”

“New Orleans, La., 21st February, 1888.”

The pledgee deny that the advances were in any way agreed to be .limited to $13,000, or to any amount, and show that they amounted to $19,000 and upward.

They further aver that in January, 1888, they had begun said advances and held as security saidjnote and another; that the plantation on which the notes were secured having been sold, the amount coming on said notes was $4,176.75, leaving a balance of $1,081.84; that they have a right to hold said $4,176.75.

The evidence establishes that the advances made by the defendants amounted to $25,904, of which $24,823 were reimbursed, leaving unpaid a sum of $1,081.

It also shows that the defendants, as holders of the pledged notes, collected $2,088.37 from the proceeds of the judicial sale.

The suit is for that sum, with interest from the time when it was paid, and the judgment of the lower court allowed it.

The language in which is couched the written instrument acknowledging the nature and extent of the transaction and of the pledge, is unambiguous. It is as plain as it could have been made.

It shows that plaintiff agreed to secure, by pledging the note, the defendants to the extent of one-half of any advance to be made by them, to the plantation owners, for carrying it on in 1888, over and above $10,000, provided the surplus would not exceed $3,000.

It is impossible to give to the terms used any other reasonable meaning and purport.

The offers of defendants to introduce verbal testimony to show the circumstances under which the agreement was entered into, and the intent of the parties, were therefore properly rejected by the lower court, and the bills of exceptions taken to the ruling do not avail.

The moment that the $13,000 first advanced by the defendants to the plantation owners were reimbursed, the contract between the plaintiff and them ceased to have any further vitality, as it was not a continuing contract, but simply an ancillary agreement. The risk 'was to be run once, and once only. It was run once, with impunity, and the convention is as though it never was. The obligations of a surety are strioti juris, and can not be extended beyond the intent and meaning of the contracting parties.

In kindred cases similar rulings were made. Gerson vs. Hamilton, 30 An. 740; Bloom vs. Kern, Ib. 1263; Nalle et al. vs. Dufour, Manning’s U. C., p. 377.

It is a well recognized principle that a surety can not be held under obligations more onerous than those of the principal.

Fidei jussores ita obligari non possunt, ut plus debant quam debet is pro quo obligantur..

The code is formal on the subject.

Art. 3037, R. O. C., reads:

‘ ‘ The suretyship * * can not be contracted under more onerous obligations.”

It is evident that, had suit been instituted by the defendants, under the state of facts disclosed by the record, against the plantation owners, for the three \thousand dollars ($3,000) of advances made them, after they had already been advanced the ten thousand dollars ($10,000), these, on pleading payment, would have been exonerated, for, taking as true, that there exists a balance due of $1,088, to the defendants, it is not a balance due on the $3,000 advanced under the agreement, immediately after the $10,000 had been, so as to raise the total amount to $13,000; but a balance due on the $12,904 which were advanced after the $13,000 had been disbursed. Quite clearly, as the obligation is to pay should the debtor fail (R. O.O. 3045), and as the plantation owners have paid the $3,000 loaned them in excess of the $10,000, it follows that no claim under any form lies against the surety for said $3,000,or any part thereof, by the pledgees of the note.

As the latter have collected the amount accruing on that security from the proceeds of the judicial sale, they are bound to pay the same over to the plaintiff.

The appeal is not clearly frivolous and damages cannot be allowed.

Judgment affirmed.