text:
    No. 2690.
    Succession of Amanda Hatcher.
    In a suit of opposition to the administrator’s account hy the heirs, the names of the heirs must he set forth in the petition.
    The authorization of the wife to appear in court, as a party to the suit, must he shown otherwise than hy her own averment or that of nor attorney, 21 An. 576; therefore, the appeal will he dismissed on motion, if the original petition of opposition to the administrator’s account shows that the petitioners, who were married women, have been legally authorized to institute and prosecute neither the suit nor the appeal.
    The capacity of a party who appears in court as the representative of another, must he alleged, hut it need not he proved unless specially denied.
    Therefore, when the petition of opposition to the administrator’s account only shows as to one of the opponents, that he was a minor, without averring or designating his tutor or tutrix hy name, it is defective, and under this averment the opponent can neither prosecute the suit nor the apj>eal.
    APPEAL from the Parish Court of East Peliciaua.

      Boedeclcer, Parish Judge. _D. J. Wedge and J. W. Burgess, for opponents and appellants.

      MeVea & Hunter, for'administrator and appellee.
   Wyly, J.

The motion to dismiss this appeal for want of proper parties must prevail.

It was a suit of opposition to the administrator’s account, in which suit the names of the petitioners are not mentioned. It begins as follows: “Succession of A. M. Hatcher. In this matter now come all the heirs of A. M. Hatcher, deceased, as set forth in their original petition herein, and specially oppose each and every item of credits claimed by the administrator in his final account on file,” etc.

We find in the record no original petition of all the heirs as averred. There app ears, however, the petition for inventory of Eliza Hatcher, herself a married woman, not shown therein to be authorized by her husband. In this petition she mentions the.heirs of the deceased.. They all appear to be married women, but one, whose name is not given, and who is described as the minor son of Samuel Hatcher represented by Susan Hatcher.

If this be the original petition to which the opponents refer to show their names, it is (quite evident that there is a want of authority for the married women to appear and institute the suit. There is no averment of authorization, and no authorization shown.

It has often been held that the authorization of the husband for his wife to appear in court must be shown otherwise than by her averment or that of her attorney. Succession of Pomeroy, 21 An. 576, and authorities cited. As to the heir whose name was not mentioned, but who was described in this petition of Eliza Hatcher for inventory, as the minor son of Samuel Hatcher, represented by Susan Hatcher, we think he is not properly in court. The name of Susan Hatcher, as tutrix of the minor, does not appear in the petition, nor does it appear in any other paper of the record to which reference was made.

We think the capacity of a party, appearing as a fiduciary, should be at least averred; it need not be proved unless specially denied.

The appeal was granted on motion, and there is nothing to show the authority of the appellants either to institute the suit or prosecute the appeal.

Let the appeal be dismissed at appellants’ costs.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 3096.
    Francois Poche v. Sosthene Theriot, Sheriff, etc. and Pierre Laiche.
    Buildings or other improvements, placed upon and attached to the land by a third party, belong to the owner of the soil, C. C. 499; and when constructions have been made by a third person on the lands of another, with his own materials, the owner of the soil has the right to keep them on reimbursement of the value of materials and price of workmanship. C. C. 500. Therefore the sale by the sheriff, under execution, of a house built by a third person on the land of another, at the expense of the owner of the soil, is null and void, and the owner of the soil has the right by injunction to prohibit the purchaser at sheriffs sale from removing the house.
    In such a case, the owner of the house is entitled to damages for the illegal seizure and sale of his property.
    APPEAL from tlie Fourth District Court, parish of St. James.

      Beauvais, J. Charles Lougue, for plaintiff and appellant.

      Legendre & Boché, for defendants and appellees.
   Howe, J.

The plaintiff instituted this action to enjoin the defendants from disturbing him in the possession of a house, alleged to be ■ his property and situate on his plantation, and to recover damages for its wrongful seizure and sale.

The defendant, Laiché, admitted that the defendant, Theriot, as sheriff, seized and sold the house in dispute in virtue of a writ oí fieri facias, issued in the suit of Laiché v. Poché, Jr., the son of plaintiff; denied that the building- was, or ever had been, the property of the plaintiff, and averred that it was built on plaintiff’s land by the said son, and was his property, and lawfully sold as such, and claimed $200 damages in reconvention for the use of the same since the injunction. The sheriff justified his seizure and sale by similar averments. There was judgment for defendants dissolving the injunction, recognizing the defendant, Laiché, as owner of the building by purchase at the sheriff’s sale, and dismissing the reconventional demand; and the plaintiff appealed.

It was admitted on the trial that the land on which the building was erected belonged to plaintiff; and the latter testified in regard to the matter as follows:1

The materials were furnished by me, but my son was employed ¡1 the construction of the house. I had the house built for my son’s use, but the house belongs to me. My son paid the carpenter $200, and I returned the money to him. I never retained the amount of $200 from my son when I settled with him for the amount due him as my minor child. He borrowed the $200 from Mr. Trepagnier and I gave my son the $200 for the purpose of reimbursing Mr. Trepagnier, to whom he had given his note. I furnished the bricks; I furnished the lumber also. I paid for the lime and everything else. I had my slaves working on the house when necessary.”

In addition to this, we have the presumption established by art. 498 C. C., that all constructions made on the soil are done by the owner and at his expense and belong to him, unless the contrary be proved; and the further provisions that if the owner of the soil has made constructions with materials that did not belong to him, he has a right to keep the same on condition of reimbursing their value to the owner of such materials, C. C., 499; and that when constructions have been made by a third person and with such person’s materials, the owner of the soil has a right to keep them upon reimbursement of the value of materials and price of workmanship. C. C.500. See also Inst. De Rerum Divisione, 2, 1, 29 and 30; C. N. 552, 555; Pothier, Du Droit de Proprieté, 170, 178.

The plaintiff’s case is included in these provisions, ana we are satisfied that the house belongs to him. The testimony for the defense is not inconsistent with this conclusion nor with'the statements of plaintiff on the witness stand. The evidence, as a whole, goes to show that the building was erected to be occupied by the son with his family but on the land of the father, by the labor in part of his servants and with materials either belonging to Mm or afterwards paid for by him.

The defendants urge that the plaintiff can not be heard to say that the house is his, because he stood by and allowed it to be sold without objection. The record, however, does not seem to sustain this view. It does not appear as matter of fact that the plaintiff did stand by and allow the sale to go on without objection. The injunction was obtained when the defendant Laiclié was about to remove the building from plaintiff’s land, after having bid it in under his judgment against Poché, Jr. The father may have been absent at the time of sale. It is not shown that he was present. The acquiescence which would prevent a party from claiming his immovable property, ought to bo very clearly shown.

We think the judgment should be reversed, and that the plaintiff should recover damages which we ñx at $100.

It is therefore ordered that the judgment appealed from be reversed; that the injunction be perpetuated; and that the plaintiff have judgment against defendants in solido for one hundred dollars, with costs of both courts.


author: IIowe, J.

text:
    No. 2865.
    State ex rel. Elias George v. Alpheus G. Tucker.
    Article sixty-one of the Constitution commands the Governor to fill all vacancies that may occur during the recess of the Senate, by granting commissions, which shall expire at the end of the next regular session thereof.
    Article one hundred and twenty vests the General Assembly with power to determine the mode of filling vacancies in all offices for which provision is not made in the Constitution.
    J3y the act of the General Assembly of sixth of March, 1869, the parish of Tangipahoa was created, and the Governor directed to appoint the various officers named in the act. • The commission granted to the Recorder stated tliat he should continue in office until the next general election for such office.
    At the next regular session of the Senate another party was appointed Recorder by the Governor, and confirmed by the Senate. The first appointee refused to surrender the office. Suit was brought un der the intrusion act of 1868, Ho. 156, to test the right to the office under their respective commissions. The first appointee claimed that the office being created by the act under which he was appointed, no confirmation by the Senate was necessary, and that he was entitled to hold it until the time fixod .by law for an election.
    Held — That the Legislature having in the act Ho. 27, of 1868, established a general system of ' appointment and confirmation, and the act under which the Recorder of Mortgages of the parish of Tangipahoa was first appointed, not being in conflict therewith, the court . would presume that the latter act was passed with reference to the general law on the subject.
    Held, further — That in as much as the latter act was in no wise in conflict but was in harmony with the general law, the officer first appointed could only hold until the end of the next regular session of the Senate ,• therefore, the latter appointee, who was confirmed, is entitled to the office.
    APPEAL from tbe District Court, parish of Tangipahoa.

      Ellis, J. Bolivar Edwards, District Attorney, for appellant.

      Emmet D. •Craig, for relator, appellant.
    , William Duncan and B. II. Marr, for defendant and appellee.
   IIowe, J.

The motion to dismiss has been waived.

This action was instituted under the provisions of the act of the Legislature (No. 156) of 1868, to test the right to the office of Recorder ■of Mortgages of the parish of Tangipahoa.

The parish was created by act of March 6,1869, which provides that within ten days after it should become a law, the Governor should appoint and commission for said parish a Recorder and certain other officials, and that the officers thus appointed and commissioned should continue in office until the election and qualification of their successors at the next general election in the State for such officers.

Under this law the defendant, Tucker, was appointed and commissioned Recorder March 13, 1869. He was not, however, confirmed by the Senate at the next sessiou. In March, 1870, the plaintiff, George, was appointed and confirmed by the Senate, and commissioned.

The judge below decided the controversy in favor of the defendant, on the ground that the special provisions of the act creating the parish above referred to, entitled him to hold the office until the next general election, (which had not at the time of the decision taken place), and that no confirmation by the Senate was necessary under the terms of this particular law.

The relator, who has appealed, contends that on the thirteenth March, 1869, the. day the defendant was appointed, there was an original vacancy existing in virtue of the creation of the office by the act establishing the parish ,• that the provisions of this act in respect of appointments must be construed with, and controlled by, those of the act of August 19, 1868, (No. 27), passed in compliance with article 120 of the Constitution and entitled An Act to determine the mode of filling vacancies in all offices for which provision is not made in the Constitution;” and that, in as much as by this general act a confirmation by the Senate is necessary, the appointment of the defendant was provisional, merely, and not being confirmed fell to the ground; and that therefore the plaintiff, appointed, confirmed and commissioned to fill this latter vacancy, must have the office.'

The views thus urged by plaintiff appear to us tó be the more correct. The act of 1868, No. 27, establishes a general system of appointment and confirmation, which is in harmony with that provided in the Constitution, in respect of offices especially named in that instrument. We will not presume that the Legislature meant to disturb this system in this special case, unless an. intention so to do be apparent in the provisions of the act under which the parties hereto were appointed. Such intention is not apparent. The latter act does not in words repeal or modify the former, nor does it do so by implication, since it is not inconsistent with it.

It is admitted that the plaintiff’s claim for damages should be dismissed as in case of nonsuit.

It is therefore ordered that the judgment appealed from be avoided and reversed, that the defendant, Alpheus Tucker, be excluded from the office of Recorder of the parish of Tangipahoa; that the plaintiff be placed in possession of the said office, and quieted therein; that his claim for damages be dismissed as of nonsuit, and that the defendant, pay the costs of both courts.

Rehearing refused.


text:
    No. 3125.
    Citizens’ Bank v. L. Grand & Co. et als.
    Tlie Citizens’ Bank became the owner of a plantation by purchase at Marshal’s sale. The deed of tlie Marshal conveyed so much land, together with all tho buildings and improvements, stock, cattle, carts, mules, etc.
    Twelve mules were afterwards seized on the plantation by the sheriff, under a fien facias, at the suit of L. Grand & Co. v. J\ C. Patrick, as the property of the judgment debtor. J. C. Patrick was, at the time of the Marshal’s sale and afterwards, the manager on the placo. Tho bank enjoined the seizure on the ground that the mules seized were attached to the plantation at tho time of the sale, and passed to it with tho place by purchase.
    Held — That, under this state of facts, the burden of showing that tho mules, seized as the property of Patrick, were attached to the plantation and passed with the sale thereof as a part of the realty, devolved upon the bank, failing in which tho injunction must be dissolved.
    APPEAL from tlie Seventh District Court, parish of Pointe Coupóe.

      Miller, J. Farrar t& Montgomery, for plaintiff and appellant.

      Thomas S. Jlewes, for defendants and appellees.
   Howe, J.

The defendants seized certain mules as the property of their judgment debtor, J. C. Patrick, and the plaintiff enjoined outlie ground that the mules were its property, having been attached as immovables by destination to the Normandy plantation, and as such purchased with the plantation at Marshal’s sale by the plaintiff.

There was judgment in favor of defendants, and nlaintiff has appealed.

The plaintiff has not established its case. We gather from the evidence, as a whole, that the mules were never attached to tlie plantation by the owner for its culture, but were purchased and put on the place by J. C. Patrick, a lessee of the place; that they were not, therefore, covered by the mortgage under which the Citizens’ Bank purchased; that they were not seized as immovables by the Marshal, and were not by him sold to the bank as a part of the plantation.

The plaintiff asks our attention to a bill of exceptions reserved by it to the refusal of the judge below to permit its counsel to question J. C. Patrick on his direct examination as to the share he had inherited from his father’s succession. The plaintiff’s object, as stated, was to show that Patrick had no means to purchase the mules. The defendants objected that the plaintiff could not impeach its own witness, and if the testimony was not impeaching, it was irrelevant. We do not think the point of any practical importance at this time. If the question had been allowed, and Patrick had testified that he received nothing from his father’s succession, our views of tho case would not be changed. He had credit, if he had no property; for we find him owing the defendants, L. Grand & Co., upwards of $5000, which their counsel, without contradiction, asserts they advanced to him in aid of his planting operations

The other points made by appellant do not seem to have weight.

Judgment affirmed.


text:
    No. 3223.
    The State v. William Welsh and Henry Fagan.
    In a- criminal case no appeal lies, except where the accused has been sentenced with the punishment of death or imprisonment at hard labor, or condemned to pay a fine of three hundred dollars. Constitution, art. 74. Therefore an appeal will not lie, on behalf of the State, from an order of the court granting a new trial and continuing the case.
    APPEAL from the Ninth District Court, parish of Natchitoches.

      Osborn, J. W. A. Pobertson, District Attorney, for the State..

      Pierson & Levy, for defendants and appellees.
   Howe, J.

The defendants were indicted for murder and found guilty of manslaughter. A motion for a new trial was made on their behalf and was granted. From the order granting the new trial and continuing the case the State has appealed to this court. The appeal must be dismissed. Under the constitution of 1868, no appeal lies to this court in criminal cases, except when a sentence of a certain severity has been actually imposed. Art. 74.

Appeal dismissed


text:
    No. 3156.
    Lucien P. Normand v. Fielding Edwards, etc.
    In a suit on an open account the plea of compensation and reconveniion. by tlio defendant admits its correctness, and the testimony of the plaintiff, given on the trial, in answer to a question on cross-examination, can not, of itself, be so construed as to change itscharactor from that of an ordinary suit for debt to an action ex delicto.

    APPEAL from the Seventh District Court, iiarish of Avoyelles.

      Miller j J. Irion & Overton, for plaintiff and appellee.

      Waddill &■ Pas-bin, for defendant and appellant. '
   Howe, J.

This suit was instituted against the defendant, in his own right and as testamentary executor of his deceased wife, to enforce the payment of $899 65, alleged to be due by defendant on open account. The defendant pleaded the general issue and set up a claim, of $1520 80 in compensation and asked also for a judgment for that amount in reconvention.

The court below gave judgment in favor of plaintiff for $605 46, with interest from twenty-seventh SeDtember, 1869, and the defendant, has appealed.

The plaintiff asks that the judgment be amended in Ms favor by decreeing interest from July 1, 1867. The defendant files in this court the plea of prescription of one year.

The plea of prescription is untenable. It is founded on the theory that the action is ono ex delioto, and this theory is, in turn, based on the statement by plaintiff, in his testimony, “ that the defendant took his cotton without his authorization; that the defendant took it from Marksvillc, where it was, to New Orleans'and sold it for thirty-six cents per pound,” which proceeds constitute the principal item of the account sued on. This remark of plaintiff on cross-examination does not, in itself, especially when contrasted with the pleadings and the other testimony in the case, transform the action into one ex delicto. The suit is upon an account; the plea in compensation admits its substantial correctness; the plea in reconvcntion seeks to strike a balance in favor of defendant; and the testimony- quoted at most would only go to show that the defendant, at the inception of the business, was a negotiorum gestor, whose acts were afterwards ratified by the plaintiff, who demanded the proceeds of sale less certain outlays and expenses.

Wo think the plaintiff entitled to interest from July 1, 1867,

It is therefore ordered that the judgment appealed from be amended by decreeing legal interest from July 1, 1867, and that, thus amended, it be affirmed.


author: Wyly, J.

text:
    No. 2033.
    C. Yale, Jr., & Co. v. Stevenson & May and E. Marqueze & Co.
    To maintain a suit of sequestration of alot of cotton or tlio proceeds thereof, on tlie ground of alleged ownership, it devolves on tlie party claiming to show a title at the time the sequestration was levied. A muniment of title, either of a negative or positive character, acquired subsequent to the sequestration, will not be admitted to bolster up a defective title or supply tbe want of title at the time tbe sequestration was levied.
    APPEAL from the Seventh District Court, parish of Orleans.

      Gollens, J. Semmes & Mott, for plaintiffs and appellants.

      A. & M. Yoorhies, for defendants and appellees.
   Wyly, J.

The plaintiffs have'appealed from the judgment dismissing their sequestration and rejecting their demand for the proceeds of thirty bales of cotton, shipped from Jefferson, Texas, by Wright, Harrison & Co., on the order of W. McMasters to Stephenson & May, cotton factors of this city, for account of E. Marqueze & Co.

Stephenson & May, having paid over the proceeds of tlie cotton to the sheriff, were released by agreement of the parties from further responsibilitv on account thereof, and have no further interest in this-litigation.

The proceeds in the hands of the sheriff were subsequently released on bond to the defendants in sequestration, E. Marqueze & Co.

The petition filed December 26, 1865, alleges that tbe plaintiffs heretofore had and owned a lot of cotton which was on storage at Jefferson, Texas, in the hands of J. M. & J. C. Murphy; that afterward, to wit, on or about the fourth of October, 1865, thirty bales of said cotton, valued at §6000, tbe property of plaintiffs, were shipped to Stephenson & May, a commercial firm residing in the city of New Orleans, with instructions to pay the proceeds over to E. Marqueze & Co.; that said cotton was so shipped without their knowledge or consent, and has been sold, and that said consignees refuse to deliver to them the proceeds. On these averments they prayed for a sequestration and to be decreed the owners of the proceeds.

It appears that there was a large amount of cotton belonging to various parties, stored in the warehouse of J. M. & J. C. Murphy, at Jefferson, Texas, during the war; that the cotton in dispute was seized by the United States authorities as the property of the Confederate States, and was turned over to the warehouse keepers, Wright, Harrison & Co., for account of W. McMasters by J. C. Murphy, on following order, to wit: “Headquarters United States Forces, the Special Order No. 3, Post Jefferson, September 7, 1865. Mr. J. C. Murphy will turn over to W. McMasters thirty-three bales of cotton, seized as the property of the so-called Confederate States, it having-been released by the proper officer of the United Spates Treasury Department. J. B. JONES, Captain Commanding.”

The cotton thus passed out of the possession of J. M. & J. C. Murphy, with whom the plaintiffs claim to have had cotton in storage, into the possession of W. McMasters, who appears to have been a member of the firm of E. Marqueze & Co., or to have acted in reference to this cotton as their agent.

E. Marqueze & Co. were therefore in possession through their consignees, at the time the sequestration was levied. It therefore devolves on the plaintiffs to recover on the strength of their own title.

A careful examination of the evidence satisfies us that the plaintiffs have failed to prove their ownership of tV cotton, the proceeds of which they have sequestered. They have utterly failed to identify the cotton as their property.

But, in order to strengthen their claim to the cotton, the plaintiffs offered in evidence the following instrument, to wit:

“C. Yale, Jr., & Co., v. E. Marqueze & Co. and Stephenson & May.

I Third District Court, No. 20,401

We, the undersigned, abandon and transfer to the plaintiffs, C. Yale, Jr., & Co., in the above suit, all our right, title and interest to the thirty bales of cotton involved in this suit and to the proceeds thereof.

WI-IEELER, GEIGER & CO.

DARCY & WHEELER.

FOLGER & CO.

SLARK, STAUFFER & CO.

PAYAN & CARHART, In Liquidation

WILLTAM C. THOMPKINS & CO.

J. L. HER WIG,Agent for Widow S. NogUes.”

The above act of abandonment was not dated, but it was admitted to have been executed only six or eight months previous to the trial, to wit: seventeenth December, 1868.

This act does not benefit the plaintaiffs, even admitting that the parties signing it also had cotton stored in the warehouse of J. M. & J. C. Murphy, at Jefferson, Texas, during the war, and probably this may be some of their cotton. The plaintiffs asserted title, December 26, 1865; they declared on that title and on the strength thereof sequestered the proceeds of the cotton involved in this suit. They must recover, if at all, on the title they declared on, and under which they sequestered the proceeds and summoned the defendants to trial.

They will not be permitted to strengthen their sequestration on a title acquired three years after their suit was instituted.

If they had no title whatever to the property in dispute at the time of instituting the suit, their sequestration was wrongfully obtained and their action on that ground must fail. We think the judgment of the court below in favor of the defendants is correct.

Judgment affirmed.


text:
    No. 3133.
    L. Dupre v. Thomas B. Helm—G. P. Smith, Warrantor.
    In a petitory action for a tract of land, if tlie plaintiff shows a title translative of property, and the defendant shows none, the plaintiff will recover. In such a case, if the defendant and his warrantor are both appellees, no amendment of the judgment (as between them) can be made by the appellate court, but the rights of the defendant against his warrantor will be reserved in the decree awarding the land to the plaintiff.
    APPEAL from the Ninth District Court, parish of Rapides.

      Osborn, J. T. 0. Manning, for plaintiff and appellant.

      B. A. Hunter, for defendant and appellee.

      M. Byan, for warrantor, appellee.
   Howe, J.

This is a petitory action for a tract of laud in Rapides parish, the nineteenth section of township one, south, range two, east, southwestern district of Louisiana. There is no dispute about the facts. The plaintiff bought from the State this nineteenth section in 1857 and his patent therefor covers the land in controversy. The defendant claims under a sale of the sixteenth section made by the parish superintendent of public schools. The statement of facts says of the tract: “ It was sold as the sixteenth section under the school law and purchased by David Cheney or his heirs, which latter are the present warrantors. The defendant acquired title from the heirs of David Cheney and went into possession on or about the twelfth February, 1855.”

It seems clear that the plaintiff ought to recover. The land in dispute is the nineteenth section. The plaintiff purchased it from the State and holds a patent for it. The defendant’s vendors had no title to it, since they got none by their purchase of another (the sixteenth) section from the parish superintendent, and, therefore, the defendant shows no title.

The judgment against tho plaintiff must be reversed. The defendant and warrantor being both appellees we can not, as requested, change the judgment as between them, but their respective rights may bo reserved.

It is therefore ordered that the judgment appealed from be avoided and reversed. It is further ordered that the plaintiff have judgment, against the defendant, recognizing the said plaintiff to be the owner of the following tract of land, situate in the parish of Rapides, viz s the nineteenth section of township one, south, range two, east, in the southwestern district of Louisiana, containing six hundred and thirty-nine 28-100 acres, and that he be put in possession thereof in accordance with law, and that the defendant pay costs. It is further ordered that the claims of the defendant against the warrantor and of the warrantor in reconvention or otherwise against the defendant b& reserved. -


text:
    No. 2034.
    Balthazar Blanck v. H. Speckman and Wife.
    A judgment can not he annulled "by direct action for any alleged vice of form in the mode' of proceeding. It can only bo annulled by such action for one of the three classes of vice of form contained in articlo 606 of the Code of Practice, viz: Pirsfe, where the judgment debtor could not stand in judgment; second, where tho judgment debtor had not been1 cite<*; third, where the court is without jurisdiction ratione materia.

    Therefore, if tho judge a quo has rendered judgment on default in a damage suit without tho intervention of a jury as required by article 313 of tho Code of Practice, such alleged vice of form may be remedied by appeal, but the judgment can not be annulled by direct action.
    APPEAL from Seventh District Court, parish of Orleans.

      Collens, J. Cotton <& Levy, for plaintiff and appellant.

      Biehartl Shaelcelford' and Fellows & Mills, for defendants and appellees.
   Howe, J.

This action was instituted in 1863 to annul a judgment' rendered in 1859. There was judgment in favor of defendants, and the plaintiff has appealed.

The only cause of nullity relied upon by tho plaintiff, appellant, is-found in the fact that the suit of Speekman v. Blancic was an action, for damages; that a default was entered, and that this default was confirmed and judgment rendered by the court without the intervention of a jury.

The Code of Practice, under the section “Of Judgment by Default,”' provides, article 313, that “when, from the nature of the demand, damages are to be assessed, the court will direct a jury to be summoned to find the same in the same manner as if the defendant had answered, and the court will give their judgment in conformity with tho verdict of tho jury.”

Tiie appellee contends, and so the court below decided, that the omission to call a jury in that ease was an'irregularity which might have been remedied by appeal, but which can not be urged, after a lapse of nine years, by an action of nullity,

The causes of nullity of a judgment are two-fold: First, those which relate to the method of procedure and are called vices of form; second, those which appertain to the merits of the question tried. The want of citation is an example of the first class; the'obtaining of a judgment on forged documents is an example of the second class.

It is evident that the cause urged by the plaintiff, if any cause it be, would fall into the first class, being an alleged vice of form. These vices of form are catalogued in article 606, C. P. They are arranged in four paragraphs, but may be reduced to “three classes:

First — Whore the judgment debtor could not stand in judgment.

Second — Whore the judgment debtor had not been cited; and

Third — Where the court was without jurisdiction ratione materia.

We do not understand that a judgment may be annulled for any other vices of form, than those specified in article 606. The language of the article is plain: “ The vices of form for which a judgment can bo annulled are tho following,” etc.

It is otherwise with the causes of nullity which appertain to the merits of tho question .tried. They are referred to in article 607, and it has been often held that the cases specified in this article are merely illustrative and not exclusive; and that a judgment may be annulled upon equitable grounds, in case an appeal would have afforded no remedy, and a real injury would be sustained, and the party had not been guilty of laches, and a just defense was alleged and proved. 1 Rob. 523 ; 3 An. 346; 11 An. 33. And the reason of this distinction is plain. It is easy for the Legislature to say, and they have said in article 606, in what cases a judgment should be annulled for vices of form; while it would be difficult and dangerous to attempt to define and thus to limit the possible cases of error and fraud which might necessitate equitable relief. ‘

The plaintiff’s case must, therefore, fail. It is not expressly provided for in article 606, nor is it included in the more flexible article 607. The irregularity of which he complains, is not a fundamental defect, like the want of citation, nor is the judgment radically de- \ fective, like that rendered against a minor without the assistance of his tutor, or by a court without jurisdiction ratione materice. He had an ample remedy by appeal, and there was no error or fraud. 9 La. 79; 9 An. 197; 9 An. 428; 10 An. 641; 14 An. 656.

Judgment affirmed.


text:
    No. 3008.
    The State v. Merryman Caulfield et als.
    A juror who lias formed an opinion based on common rumor without any prejudice or bias against the accused, is not disqualified from sitting on the trial.
    After the accused has boon indicted and pleaded not guilty, it is too late to urge his right to a preliminary examination before a committing magistrate.
    Questions of fact, as to whether certain witnesses who testified on the trial, had. sworn falsely, can not be noticed on appeal. Constitution, art. 74.
    The fact that alcoholic liquors were furnished the jury, to bo used by them for refreshment, while sitting on a protracted trial, does not vitiate -their verdict; nor is tins fact of itself good cause for a new trial.
    The presence of the sheriff or his deputies in the jury room during the trial is not misconduct, and the sheriff did nothing more than Ins duty in procuring a change of clothing for the jurors during the trial, which lasted five days.
    The deposit of the venire with the clerk and posting it up in the clerk’s office on the first day of the term are a sufficient compliance with the law requiring it to ho filed in the clerk’s office on that day.
    APPEAL from the Fifth District Court, parish of East Feliciana.

      Posey, J. ilf. A. JEsteban, District Attorney for the Fifth Judicial District.

      JPernan (& Lyons, for defendant and appellant.
   IIowe, J.

The defendants were indicted for the crime of murder, found guilty without capital punishment, and sentenced to imprisonment at hard labor for life. They have appealed, and claim a new trial upon the following grounds presented by their hills of exceptions:

Pirst — That after the venire of jurors had been exhausted and the bystanders in the courthouse had been summoned as talesmen and their number exhausted, the court ordered the sheriff to summon fifty citizens from the community to act as talesmen. We understand from this that, the jury being yet incomplete, the sheriff was sent out into the town where the court was held to bring in talesmen. We are not referred to any authority to show any error in this course, and the noint seems to he abandoned. 14 An. 461.

Second — That two jurors were challenged for cause by the defendants, and the challenges improperly overruled. Each of these two jurors, on their voir dire, said, respectively, that ho had formed and expressed an opinion, that it was a deliberate and fixed opinion, that it was formed from common rumor, that it would require evidence to remove it from his mind, that circumstantial evidence, if reliable and satisfactory, would, remove it, that he had no bias or prejudice against the accused, and that he could render an impartial verdict according to the law and the evidence. Both jurors were challenged peremptorily, and neither sat on the trial of the cause. It does not-appear that the defendants, or any of them, by this course exhausted their peremptory challenges. An opinion, based on rumor, whore Hiere is no bias or prejudice against the prisoner, does not disqualify; and, moreover, even if there should he reason to think that the challenge for cause should have been maintained, yet where the jurors did not sit in tlie case, and it does not appear that the prisoners’ peremptory challenges were exhausted, wo should not feel called on to grant a new trial. 14 An. 462.

Third — That the court a qua erred in refusing the accused a preliminary examination.

The record shows that the accused were indicted, pleaded not guilty, were tried and found guilty, and this question of a preliminary examination was not suggested until a motion was made for a new trial. If there was anything in the point., it was made too late.

Fourth — That two witnesses who had turned evidence for the State, had sworn falsely. This was urged as a reason for a new trial. The jury and the judge below appear to have believed the witnesses in question, and we have no jurisdiction to receive or reverse their decision of a question of fact. Constitution, art. 74.

Fifth — That intoxicating liquors were furnished to the jury during the trial. It does not appear that any liquors were furnished to the jury after they retired to consider of their verdict. The trial, however, lasted five days, and during this long time the jury were of course not allowed to separate day or night, and were obliged to eat and drink in order to sustain life; and the bill of exceptions states as follows : “ Though liquor was given to the jury it was in moderation. None of them were intoxicated at any time. Their confinement was such that several of them were affected with sickness.” This statement, signed by the judge, is conclusive upon us as a finding of fact; and though we would bo far from encouraging the practice in jurymen of taking an enemy into their mouths to steal away their brains, yet we must recognise the fact that alcohol has its use in case of exhaustion and illness. We know of no rule of law which requires total abstinence from beverages containing alcohol upon the part of every member of a jury during the whole of five days and nights of a trial, when several of them are affected with sickness; and we do not feel called upon to grant a new trial -upon this point.

Sixth — That there was misconduct on the part of the sheriff and his deputies in eating with the jury and sleeping in the same room with them and in sending and receiving for them messages in regard to changes of clothing. It, however, appears that the sheriffs did not converse with the jury in regard to the case, and that the jury never conversed with any outside parties on any subject. The presence in the jury room of a sheriff or his deputies is not misconduct. State v. Summers, 4 An. 27; and it was decent and necessary to send for and receive changes of clothing during the trial; which, wo may remark, was concluded on the first of June.

' Seventh — That the venire of jurors was not filed in the clerk’s office on the first day of the term. The venire, it appears, was deposited in the clerk’s office on the first day of the term and posted up in such way that it might bo conveniently examined. It further appears that the accused, when arraigned, pleaded not guilty and waived service of a copy of the venire. If this point could properly be raised after verdict, we think the deposit and posting up in the clerk’s office a sufficient filing, tlie objection being that the words “filed,” etc., were not written on it. “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” Bonvier’s Law Diet. Mle.

Eighth — That the court erred in allowing Bolivar Green and Henry ^errill, alleged accomplices, to testify. There is no force in this point.

or the reasons given, it is ordered that the judgment appealed from oe affirmed with costs.


text:
    No. 3050.
    Widow L. P. Becnel, Tutrix, v. Michel A. Becnel.
    TVlion one joint owner of a plantation remains on and cultívalos a portion of £b© land not exceeding one-lialf, tlie otlior joint owner wlio does not clioose to occupy tlie plantation, or any portion thereof, in the absence of a lease or agreement to pay rent, lias no right of action against his joint owner who has cultivated a portion of the land for the rent thereof. 27or has the joint owner who cultivated a portion of the land, any right of action or legal demand against his joint owner for improvements or repairs made on the place to aid him in securing his crop.
    APPEAL from the Fourth District Court, parish of St. John the Baptist.

      Beauvais, J. F. B. Boché, for plaintiff and appellee.

      Cooley & Bhilips and John IE. llsley, for defendant and appellant.
   Wyly, J.

The plaintiff, a co-proprietor of the defendant, sues him for rent of the plantation, owned by them jointly, for the years 1867, 1868 and 1869.

The deiendant had entered into no contract of lease but merely concluded to remain on the plantation and cultivate a part of it, less than half, after the plaintiff had determined not to cultivate any part of the land, and had voluntarily moved to another plantation in the neighborhood.

It is not pretended that the defendant dispossessed the plaintiff, or in, any manner interfered with the enjoyment of her proprietary interest, or that ho cultivated more than an amount equal to his half of the plantation. If, instead of abandoning it, she had remained on the common property, she could not have prevented the defendant from enjoying at least half of it, while she was enjoying the other half. Her abandonment of the thing held in common did not impose an obligation on her co-proprietor also to abandon it; nor did it produce a legal obligation compelling him to pay her rent for using that which he would have had the right to use, had she remained.

How the right of action asserted by the plaintiff arose in her favor, wo can not imagine. The obligation certainly did not spring from a ■quasi contract. The defendant having merely administered his proprietary interest, without in the least impairing the right of his co-proprietor likewise to use and enjoy hers, can not fairly be said to have undertaken, of his own accord, to manage the affairs of another •or to have assumed an agency, thereby contracting the tacit engagement to continue it and to complete it — incurring all the obligations of an express agency. C. C. 2274. The obligation certainly did not spring from either of the other four sources known to the law, from whence all legal obligations arise. And we must, therefore, conclude that the right assorted by the plaintiff is not supported by a legal •obligation, and that it can not be enforced.

As the plea in reconvention set up by the defendant for the value -of his labor in cleaning the ditches and the slight repairs to the sugar-house and other constructions necessary for the taking off of his crop, we will remark that there is no merit in it. His co-proprietor is not bound to pay him for the slight improvements made in aid of his crop, .and this demand is as shallow and unreal as that of the plaintiff.

The judgment of the court below in favor of the plaintiff and against the defendant for $5250 and costs of the • suit is manifestly •erroneous.

It is therefore ordered that the judgment of the court a qua be reversed, avoided and annulled; and it is now ordered that there be judgment for the defendant, with costs of both courts-


author: I-Iowell, J.

text:
    No. 3119.
    State ex rel. C. Bene v. The Judge of the Fourth District Court, Parish of Orleans.
    Whore it is shown that an interlocutory judgment, dissolving an injunction, may work an irreparable injury, the party plaintiff in injunction is entitled to have it reviewed on appeal. Therefore, if the judge a quo refuses an appeal from such interlocutory decree, the Supreme Court will, on application, issue a mandamus, compelling him to grant the appeal and send up the record.
    Application for a Writ of Mandamus.

      J. Duvigneaud, for relator.

      Theard, Judge, respondent.
   I-Iowell, J.

The relator instituted suit in the Fourth District Court for the parish of Orleans against her husband for a divorce and claiming $2300, as paraphernal funds, as well as half the community property, and obtained an injunction prohibiting him from disposing of .any property pending the suit also forbidding the recorder of mortgages to record any mortgages against the real estate, the register of •conveyances to grant a certificate of non-alienation and the People’s Bank of New Orleans to pay to the husband a sum of $1170 on deposit. The defendant in said suit moved to dissolve said injunction on the grounds that it was nob authorized and that no bond was furnished. The district judge dissolved the injunction as to the bank, hut maintained it as to the other parties. The relator applied for a suspensive appeal from this ruling, which was refused, and she now asks for a mandamus to compel an appeal.

Tho judgment from which the appeal is sought, is an interlocutory one which may work an irreparable injury to the plaintiff in injunction. The character and value of the property in question, as described in these proceedings, are not such as will, under all circumstances, afford absolute protection independently of this cash. The injunction having been granted and a judgment rendered dissolving it in this respect, the relator is entitled to a revision thereof by appeal, the amount involved being appealable and the possible contingent injury irreparable.

•It is therefore ordered that the mandamus herein be made peremptory.


author: Taliaferro, J. Ludeling, C. J.,

text:
    No. 3054. No. 3055.No. 3056. No. 3057.
    Third Ward School District of New Orleans v. City Board of School Directors. Van Norden, Treasurer, etc. v. Thomas W. Conway, State Superintendent. Thomas W. Conway, State Superintendent v. The City Board of School Directors. Van Norden, Treasurer, etc. v. Thomas W. Conway, State Superintendent.
    The assertion of a right to the samo thing by another title and in a different capacity by the samo parties, in a new suit, can not he construed as an acquiescence in the former judgment. Therefore the appeal which has been taken from the first judgment will not be dismissed on motion, because the same parties have brought another suit for the same tiling under another title and in a different capacity.
    The act of the General Assembly, approved March 16, 1870, entitled “An Act to regulate public education in the State of Louisiana and city of New Orleans,” etc., gives to the ward hoards of school directors for the city of New Orleans, the primary control and direction of the public schools of the city. Tho city hoard of school directors for the city of New Orleans, created by the same act, are subordinate in their powers and functions to those of the ward hoards; they are not, therefore, authorized under this act to make contracts with teachers, receive or disburse the school funds belonging to or coming to the city for school purposes, tho ward hoards alone being vested with this power under the aot.
    A PPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. Laeey <& Butler, for relators, appellants.

      D. Filleul, for appellees.
    On the Motion to Dismiss.
   Taliaferro, J.

We are asked to dismiss the appeals iu the above entitled causes, on the following allegations:

That the appellants have instituted a new suit in a different capacity and as substituted to the rights and powers of the ward school hoards, in which they claim the same things which were the subject matter of the said four suits now pending on appeal, and that the said new suits and judicial demands are antagonistic and can not he reconciled with the intention of the said appellants to prosecute said appeal; and on further suggesting to the court that the said appellants have voluntarily executed and satisfied and acquiesced in the judgments appealed from by them.

We are at a loss to conceive how the appellants have “executed, ratified and acquiesced in the judgments appealed from by them,” because they assert in a new suit a right to the same objects claimed in these cases by another title and “in a different capacity.” There is nothing before us which we can take notice of to establish the facts alleged; but, if they were proved, they would not justify the conclusion that the appellants have acquiesced in the judgments, and there is nothing antagonistic with an intention to appeal.

The motion to dismiss is overruled.

On the Merits.

This is a controversy between two sets of functionaries deriving their powers from the same source and holding their offices under the act of the Legislature approved March 16, 1870, entitled “An Act to regulate public education in the State of Louisiana and city of New Orleans, and to raise a revenue for that purpose,” These contestants are styled “The City Board of School Directors,” and “ The Ward Boards of School Directors.” The contest relates to priority of jurisdiction over the public schools of the city and the right to receive and disburse the school funds apportioned to the city schools. The four cases will all be considered together, as from their general tenor a decision of the question just named will be conclusive of all the issues presented in the four cases. They were in substance so determined by the judgment of the court below, which was in favor of the ward boards. The city board of school directors have appealed.

The first step in the investigation is to inquire, what are the powers and duties of these two orders of school directors; and, first, what is the scope of the powers and the extent of the functions of the city board of school directors “?

We find in section fifty-four of the act before recited, that “the city board of school directors shall have all the powers and perform all the duties in reference to the public schools of the city and to the distribution of the school funds thereof, herein conferred upon the parish boards of school directors for other parishes.”

What then are the powers and duties conferred upon the parish boards of school directors 1 They are detailed in section eighteen of the act, and are as follows:

First — To elect from among their number a president, secretar.’ and treasurer. Tlie treasurer shall give bonds in an amount not less than five thousand dollars, to be approved by the Parish or District Judge and the Recorder of the parish, and a copy thereof to bo forwarded to the Superintendent of Public Education, for the faithful performance of his duties under this act. Said bond may, from time to time, be increased by the order of the board or of the District Judge in proportion to the amount of school funds in the hands of the treasurer.

The board shall, from time to time, examine the accounts of the •yeasurer and settle them.

Second — To appoint for each ward School district in their parish a hoard of three district school directors. Said board of district school directors shall hold their office for two years from the time of their appointment and until their successors are duly elected or appointed and qualified.

Third — To visit and examine the schools of the several districts of the parish, from time to time, and to meet and advise with the several boards of district school directors as occasion may require.

Fourth — To report to the State Board of Education and to the Superintendent of Public Education all deficiencies in the schools or neglect of duty on the part of the teachers, directors, division superintendents or other officers.

Fifth — To receive from the State tax collector all proceeds of any parish school tax, levied by the police jury in accordance with this law, and to apportion the same among the several ward school districts of their parish in proportion to the number of persons in their district, between the ages of six and twenty-one years.

Sixth — To make such needful by-laws and regulations for their own government, not inconsistent with this law, as they may deem proper. The treasurer of the board shall receive all money on account of the board and pay out the same on warrants signed by the president and countersigned by the secretary, and he shalL keep a correct account of all expenses and receipts in books provided for that purpose, which shall always be open for inspection. He shall render a monthly report to the board and an annual report to the division superintendent on or before the tenth day of January.

These then, are the powers and duties of the city board of directors. We next inquire what are the duties and powers of the ward board of directors? Section fifty-seven provides “that each ward board of school directors in the city of New Orleans, shall have the powers and duties and be governed by the regulations herein prescribed for district boards of school directors in other parishes.” Here we are again referred to the powers and duties of another class of directors to know what are the powers and duties of the city ward school directors. We turn now to section twenty-two of the act. It •may be well in this place to premise that by the section twenty-two, ■each police jury ward' of the country paiishes, is declared to be a school district, and the term, district board of school directors,” is applied to the school directors of each police jury ward. The duties ■of this class or grade of directors are:

First — To make all contracts, purchases, payments and sales necessary to carry out any vote of the district; provided, that before erecting any schoolhouse they shall consult with the Superintendent of Public Education as to the most approved plan of such building.

Second — To admit pupils not belonging to the district, as provided •for in section twenty-five of this act, to their schools on such terms as they may agree upon.

Third — To determine the number of schools which shall be established and the length of time each shall be taught, subject to the provisions of section twenty-three of this act.

Fourth — To fix the site of each schoolhouse, taking into consideration the wants and necessities of the people of each portion of the district.

Fifth — -To establish graded or union schools whenever they may be necessary; and they may, as occasion requires, select a person who shall have the general supervision of the schools in their districts, subject to rules and regulations of the board.

Sixth — To determine what branches shall bo taught in the schools of their districts.

Seventh — To require the secretary and treasurer each to give bond ■to the district in such penalty and with such sureties as they may determine upon, conditioned for the iaitliful performance of their ■duties under this act. The bond shall be filed with the president of the board, and a copy of the same shall be sent to the Superintendent of Public Education, and in case of breach of condition thereof he shall bring suit thereon in the name of the district.

JSighth — They shall, from time to time, examine the accounts of the ■ ■treasurer and make settlements with him and present at each regular meeting of the board a full statement of the receipts and expenditures of the district and all matters delegated to them to perform and all such other matters as may be deemed important.

Finth — To visit the schools in their district, and aid the teachers in establishing and enforcing rules for the government of the schools, and see that they keep a correct list of the pupils, embracing the time during which they attend school, the branches taught and such other matters as may be required by the division superintendent. A majority of the board shall be a quorum to transact business, but a less number may adjourn from time to time. Each district board shall ' adopt a uniform series of books for all the schools in their district, and such series shall not be changed oftener than once in two years. '

Then follow in section twenty-three, the duties prescribed for the officers of these district boards: “ The president shall preside in all meetings of the board and of the district; shall draw all drafts on the State Treasurer and upon tho treasurer of the parish board for money apportioned to his district; sign gll orders on the district treasury, specifying in the order the fund on which they are drawn and the use for which the money is assigned, and he shall sign all contracts. The president shall appear in behalf of his district in all suits brought by or against the same, but, when he is individually a party, this duty shall be performed by the secretary.” Next come the various duties of the secretaries, but these it is not necessary for our purpose to bring into view. “The treasurer,” it is declared, “shall hold all moneys belonging to the district and payout the same on the order of the president countersigned by tbe secretary. He shall receive all money apportioned to the district by the Superintendent of Public Education.”

Each p>arish board of school directors is constituted a body corporate and politic in law, with powers to sue and be sued. The body, it is declared, shall be known and styled “ Tbe Board of School Directors for the parish of,” etc. In like manner the district board of school directors in the sub-divisions of the parish, that i§, in the police jury wards, are each named “ Ward District of-, in the parish of-, and State of Louisiana.” So also each ward board in the city of New Orleans is constituted a body corporate and politic. The city board of school directors, having all the powers of the parish boards may, perhaps, be considered a body corporate, but corporate powers are not conferred upon it in express terms.

We Lave now in juxta position tbe several enactments of the Legislature which establish the powers and duties of the litigating parties before the court. With the single exception of sections 61 and 62, to which the order of our investigation will soon bring us, all tbe enactments are mainly embraced by sections 54 and 57, together with the references therein made, and which we have already referred to.

Before proceeding further, we will take a general retrospect of those enactments. In doing so,- wo find that the powers given to the city board of directors are few and of a limited character. It appoints for each ward school district three district directors. It is to visit the schools, and to meet and advise with the several boards of ward directors as occasion may require; to report to the State Board of Education and to the Superintendent of Public Education'all deficiencies in the schools or neglect of duty on the part of teachers, directors, division superintendents or other officers; to make suitable by-laws for their own government, and to receive from the State tax collector all proceeds of any parish school tax levied by the police jury, and to apportion the same among the several wards in proportion to the number of persons in each ward between the ages of six and twenty-, one years. The character of these grants of power seems to be chiefly supervisory. It would appear that the purpose of the board is more to see that others discharge faithfully the active and important duties required in the administration of the public schools than to participate in those duties itself. When we review the powers and duties conferred upon the ward boards, on the other hand, wo see that all the numerous powers and essential duties, necessary to the efficient and practical working of the public school system, arc conferred upon them. They are constituted corporate bodies, with ample powers, many, but not all, of which we have previously, in this opinion, reviewed. Wc shall recur now only to one of these powers or rights, •and the one, probably, which constitutes the principal bone of contention, namely, the right to receive and disburse the fifty thousand dollars of State school funds. It is plain that this right is given to the ward boards. To the ward boards all the school funds, both State and parochial, go, being apportioned in the one case by the State Superintendent and in the other by the city board of school directors. In any view of these various powers that we can take, the odds seem greatly in favor of the ward boards; indeed, if we remember rightly, the able counsel of the city intimated, on the argument of the case, that if sections 54 and 57 alone were to prevail, the case was against him. He relies upon articles 61 and 62 of the act, taken in connexion with the preceding ones, and aims to harmonize the different sections on the basis of a paramount control of the public schools of New Orleans being given to the city board of school directors by the sections 61 and 62. These sections rfead thus :

“ Section 61. That the control and direction of all public schools within said city, which are supported from public school moneys, whether such moneys are derived from municipal or State taxation, is hereby vested in the board of school directors for the city of New -Orleans that shall be appointed under this act, and all laws or parts of laws by which the Common Council of New Orleans is empowered to elect a board of directors of the public schools and by which any control over any of the schools named above is given to said board o 1 •directors appointed or elected by the Common Council of New Orleans, and the special act of the General Assembly approved March 14, 1855, entitled ‘An Act relative to public schools in .the city of New Orleans,’ be and the same is hereby repealed.”

. Taking this section in its entirety, it would seem to explain its purpose to be rather to bring into the new school system an exclusiveness of control over the subject, and to cut off all pretensions that might arise on the part of the City Council to organize public schools, or to continue sucli schools as may have been established by prcviously existing laws, than to confer upon the city board, of directors the supremacy that is contended for. And this view, we think, is favored by attending to the provisions of the next section, No. 62, which likewise seem intended to secure, under the new system, the exclusive jurisdiction over the public schools of the city, but not wholly to the city board of school directors. The section 62 is in these words:

“That the sole and exclusive control and regulation of all public schools within the city of New Orleans, whether supported by municipal or State taxation, is hereby vested in the board of school directors for the city of New Orleans and the other subordinate and local boards appointed in said city in accordance with the provisions of this-act; and that the offices of all school directors in said city, appointed or elected or assuming to act, are hereby terminated and made tócense, and all the powers hitherto conferred upon such school directors, by virtue of any law or of any ordinance of said city, are hereby abolished and annulled.”

We do not understand the language used in this section to express, or imply that the ward boards are subordinate to the city board of school directors. The “sole and exclusive control” is conferred upon the “city board of school directors” and the- other subordinate and local boards, clearly meaning that the “ city board of directors is-itself a subordinate board, all the local boards, of which the city board is one, being subordinate to the State Board and to the State Superintendent. Tlie term “local boards ” is used iu contradistinction to the-general or State Board. By section 5 of the act, the State Board is vested with power “ to make all needful,rules and regulations for the government of the public schools throughout the State, subject to the provisions of this act.” By section 21, the city board is to report to the State Board and to the State Superintendent. The city board is the creature of the State Board. Section 16.

The ward boards are required to report to the division superintendents and are subject to the control of the State Board and the-State Superintendent. Sections 23, 25, 27.

Taking the context of section 62, and in connection with the preceding section, there <5hn be no doubt that its meaning is, that the subordinate and local boards, viz, the city board of school directors and the ward boards shall have sole and exclusive control and regulation of the public schools within the city as against the apprehended antagonistic authority over the snbjectthatmight be set upbythe City Council.

The provisions of sections 61 and 62 are expressed in general terms-By an established rule of construction, a general provision does not repeal a particular one by implication. 3 Martin, 672, and authorities there cited; 14 An. 113; Civil Code, article 23.

Considering the entire scope of the act, we conclude that it was not the intention of the law-makers to supersede the functions of the ward hoards, by vesting in the city hoard of directors the numerous powers and duties conferred upon the former, nor to give to the city hoard of directors even a concurrent, and much less a paramount jurisdiction over the various subjects assigned to the ward hoards.

It is therefore ordered, adjudged and decreed that the judgments rendered in these several cases by the district court he respectively affirmed, with costs.

Ludeling, C. J.,

dissenting. In all these cases the question presented for decision is, which of two corporations, the city hoard of school directors or the ward school districts of the city of New Orleans, created by the same statute of the General Assembly, has the paramount power over the public schools in the city of New Orleans and the moneys appropriated for their maintenance 9

The appellees contend that section fifty-seven gives the primary and exclusive control to the ward school districts of the city of New Orleans, and that section fifty-four limits the powers of the city hoard of school directors to such powers as are conferred by the law in parish hoards.

If these two sections alone conferred powers on the two-corporations and the construction placed upon them by the appellees were correct, there would he little room to doubt as to the powers of each board. But sections fifty-four and fifty-seven are susceptible of a different-interpretation, and they are not the only sections of the law hearing on the subject of the powers or rights of the two boards.

Section fifty-four provides “that in the city of New Orleans there shall be a hoard of school directors of eleven members,' who shall hold their offices for two years and until their successors are duly elected or appointed or qualified.” It provides how the members of the board shall he appointed and declares that “ said board shall have all the powers and perform all the duties in reference to public schools of the city and to the distribution of the school funds thereof herein conferred upon parish hoards of school directors for other parishes. Said hoard shall hold its first meeting within thirty days after its appointment, shall choose a president and treasurer from its own members and shall proceed to appoint, for each ward of the city of New Orleans, a ward board of school directors of five persons.”

The clause, “ shall have all the powers and perform all the duties in reference to the public schools of the city herein conferred on parish boards for other parishes,” does not, in my opinion, necessarily circumscribe the powers and duties of the city hoard to those appertaining to the parish board. It embraces those powers and duties, but does not exclude others, for it expressly confers the right to distribute the school funds of the city. Section fifty-four does not limit the powers of the city board, nor is tlie grant of powers therein made exclusive of others.

Section fifty-seven declares that “each ward board of school directors in the city of New Orleans shall have the powers and duties and he governed by the regulations herein prescribed for district boards of school directors in other parishes.”

Section twenty-two defines the powers and duties of the directors or district hoard of school directors.

Section twenty-three defines the duties of district officers.

If the powers and duties granted by section fifty-seven he those only which are enumerated under section twenty-two as those granted to the board.in contradistinction to the powers granted to district officers under section twenty-three — a distinction made by the statute itself— there is no antagonism between section fifty-seven and sections sixty-one and sixty-two and seventeen. But, if under section fiftj'-seven it was intended to give to the ward hoards the primary control of the schools in the city, then there would be a pialpable antinomy. Por sections seventeen, sixty-one and sixty-two vest tbe right to control and direct all the public schools, within the limits of the city of New Orleans, in the city board of school directors, while fifty-seven would give the same powers to the ward school districts.

' It is the duty of courts to give effect to every part of a law, if it be possible to do so. I understand tbe rule laid down in Bacon’s Abridgment, referred to, to mean no more. “ If a particular thing he given or limited in a preceding part of a statute, this shall not be altered or taken away by subsequent general words of the same statute.” Judge Martin relied upon this rule to maintain a principle announced by tbe court, “that a general provision does not repeal a particular one by implication.” 3 Martin 672.

It is not correct to say that sections siáty-one and sixty-two contain general provisions, because they confer absolute power over the administration of the public schools in New Orleans. They contain specific grants of power, the right to control and direct the public schools.

Article seventeen of the Civil Code declares that “laws upon the same subject matter must be construed with reference to each other ; what is clear in one statute may be called in aid to explain wliat is doubtful in another.” Thus, what is clear in this statute may he called in aid to .explain what is ambiguous. And article eighteen of the Civil Code directs that, “ if the language be ambiguous, we must endeavor to discover the true meaning by considering tbe spirit and reason of it.” Guided by these rules we may harmonize all the sections of tlie law. We have already seen that section fifty-four conferred certain rights and imposed certain duties on the city hoard, hut without restricting its powers to those granted in that section.

Section sixty-one gives the control and direction of the public schools in the city of Now Orleans to the city hoard. This section is unambiguous. Control is the synonym of command. Direction is synonymous with control, command. Mr. Webster says: “Those words, as here compared, have reference to the exercise of power over the actions of others. Control is negative, denoting power to restrain; command is positive, implying a right to enforce obedience; directions are commands containing instructions how to act. A shipmaster has command of his vessel; he gives directions to the seamen as to the mode of sailing it and exercises a due control over the conduct of .the passengers.”

The word control is used in sections seventeen, sixty-one and sixty-two in the same sense. In all these sections it moans the primary •right to govern, or the power to administer the affairs of the public schools. This is manifest from section seventeen. It declares “ that the board appointed for the town of Algiers shall control the public .schools in the parish of Orleans, not within the city of New Orleans.” And it declares further, that, “ should any part of said territory he hereafter incorporated within the city of New Orleans, said hoard shall have control over all territory remaining out of the limits, and the hoard ior the city of New Orleans shall control all schools within the limits of the city of New Orleans.” Here it is perfectly clear that the permanent power to administer the affairs of the public schools in the Filth and Sixth Districts of New Orleans is conferred upon the city hoard.

To suppose that the General Assembly intended, by sections fifty-four and fifty-seven, to bestow on the ward boards the primary control of tho schools in New Orleans in the First, Second, Third and Fourth Districts, when the power had been confirmed on the city hoard as to the Fifth and Sixth Districts, is to conclude that the law makers intended that tho public schools in New Orleans, in different localities, should he subject to two different systems of administration, a policy fraught with evils, and a policy totally at variance witli that manifested in section thirty-five -in regard to other cities and towns throughout the State.

Tiie jurisdiction of tho ward hoards is local; they can not establish high schools; and unless the city board have other powers than those given to the parish hoards, it can not establish, maintain or govern them; and the most valuable and cherished feature of the public school system of New Orleans will he destroyed. “The letter killeth, but tbe spirit givetk life.” I feel authorized in saying that the General Assembly intended to give, and that they did expressly give primary control over the public schools of New Orleans to the city board of school directors. This construction harmonizes every part of an otherwise incongruous law. I therefore dissent from the opinion of the majority in this case.


author: Ludeling, C. J.

text:
    No. 2039.
    J. Harvey, Syndic v. J. P. Walden, and his sureties.
    In 1862, during tlie time that the city of Ne-w Orleans ¶-as under insurgent control and Con. federate notes wore the circulating medium, a judgment creditor who resided in the cityr caused execution to issue, hy virtue of which the sheriff seized and sold the property of the debtor. The price of the bid was paid over to the sheriff in Confederate notes,, which he deposited in bank. After the city had been captured by the United States, the judgment creditor demanded the amount of the sale in lawful currency.
    Held — That Confederate notes being the circulating medium at the time the fieri facias was. placed in the hands of the sheriff and also at the time the sale was made, and the judgment creditor being at the time a resident of the city of Hew Orleans, he must be presumed to have authorized the sheriff to take in payment such notes; that the sheriff* being obliged to execute the writ, without the power to enforce payment in any other-currency than Confederate notes, can not be compelled to return to the creditor any other currency than the notes he received.
    "When the sheriff has sold property under execution and taken an unlawful currency in payment, tbe action against the sheriff by the judgment creditor is not for moneys received, by him, but for malfeasance in office in having sold property and received in payment thereof other than lawful currency; such action is prescribed hy one year.. C. C. 3536, (3501),
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J.. George JO. Bright, for plaintiff and appellant.

      William Hi. Hunt and iBellows & Mills, for defendants and appellants.
   Ludeling, C. J.

On the eighteenth day of January, 1862, the plaintiff obtained from the Fourth District Court of New Orleans-an order of sale, and placed it in the hands of the sheriff, the defendant, to be executed. Under this writ the sheriff sold property and; received the price of the adjudication in Confederate treasury notes,, which he deposited in hank.

The plaintiff does not appear to have called for the price until after.the capture of New Orleans by tbe Federal forces, to wit, iu. August, 1863. It is proven that tbe defendant was willing and ready at all times after tbe sale to pay tbe currency received by him.

This suit was instituted on the eleventh August, 1863, to make the-sheriff and his sureties pay in lawful money of the United States the* price of the sale aforesaid.

The evidence establishes that Confederate money was the circulating medium at the time the order of sale was placed in the hands of the sheriff and when the sale was made under it. The plaintiff resided in New Orleans, and he must be presumed to have known that no other currency was in general circulation then in January and February, 1862; and we can not resist the conviction that by placing the; writ in the hands of the sheriff to sell property of his debtor, he authorized him to receive Confederate treasury notes for the price.

We know from the history of the times, that the sheriff could not have demanded with safety any other money in payment of the price of property sold at public auction, and that he could not have enforced the payment of any other kind of money at that time, and still he was obliged to execute the writ. The demand of the plaintiff is without equity.

But, even if the plaintiff’s conduct did not authorize the sheriff to receive Confederate treasury notes in payment of the price of the property, it is clear that his right of action against the sheriff is not for moneys received by him, for he received none, but for malfeasance in office in having sold property and received other than lawful money in payment thereof.

If this suit could be regarded as such an action, the plea of prescription of one year, filed in this court, would have to be maintained. 0. C. 3536 (3501).

It is therefore ordered that the judgment of the district court be affirmed with costs of appeal.


author: Wyly J.

text:
    No. 2928.
    F. Z. Barus v. H. Bidwell et al.
    If the husband be indebted to the •wife fox paraphernal pxopoxfcy belonging to hex, which he has received, he may give her in payment for such property other'property of his own, and such property so given in payment is not liable to seizure for the debts of the husband, but is to bo regarded and treated as her separate property.
    APPEAL from the Fourth District Court for the parish of Orleans.

      Them'd, J. JRighton & MeOollum, for plaintiff and appellee.

      JE. Mllaul, for defendant and appellant.
   Wyly J.

The defendant, H. Bidwell, a judgment creditor of the husband of the plaintiff, seized as Ms property a lot of household furniture and movable effects in a residence on Dauphine street -, the sale thereof was enjoined by the plaintiff on the ground that the same belonged to her, having been conveyed to her by her husband in a notarial act of giving in payment in part settlement of a debt for paraphernal funds due her by her said husband.

The court perpetuated the injunction, and the defendant, Bidwell, has appealed. The facts disclosed in the record show a legitimate cause for the transfer from the husband to his wife under article 2421 C. C., it appearing that the former was indebted to the latter on account of paraphernal property in a sum exceeding the value of the property conveyed to her by the act of giving in payment.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Taliaferro, J.

text:
    No. 3155.
    George J. Keller v. Matthew Vernon and Wife.
    Tli© wife is a competent witness to testify in a suit brought by a creditor of tho husband to annul a. judgment of separation of property between the husband and wife.
    ÜThe correctness of a judgment of separation of property may (when attacked by a creditor of the husband) ho established by evidence aliunde. Thcroforo, evidence, tending to show that tho husband received from tho wile funds derived by succession from tho estate of one of her deceased relatives prior to her judgment of separation, is admissible to establish tho validity of her judgment in a suit by tho creditor to annul it.
    APPEAL from the Seventh Judicial District,, parish of Avoyelles-

      Miller, J. A. B. Irion, for plaintiff and appellee.

      Waddill & Barlow and Thomas & Overton, for defendants and appellants.
   Taliaferro, J.

The plaintiff, having obtained a judgment for a large sum against Matthew Vernon, one of the defendants, who had been his tutor, brought this action against both defendants to annul a judgment of separation of property decreed between them, and by which the plaintiff alleges they seek, collusively and fraudulently, to place beyond his reach the property of his former tutor, which is liable for the tutorship debt.

The wife put in a general denial. She avers the legality of her judgment against the husband, and pleads the prescription of one, two, three, four and five years.

The decree of the lower court annulled the judgment of separation of property and the notarial act of sale subsequently made by the husband, which purported to transfer property to the wife in satisfaction of her paraphernal claims, and recognized in favor of tho plaintiff a legal tacit mortgage on certain lands enumerated in the judgment, and ordered the same to be seized and sold in satisfaction of the judgment. The defendant, Mrs. Vernon, prosecutes this appeal.

There are five bills of exceptions in the record. It is important that two of them should be examined at the outset. These relate to the introduction of evidence on the part of the wife to sustain the validity -of her claims against her husband. When she presented herself to testify, the objection was raised that the wife can not be a witness for or against her husband. Tho objection, we think, was improperly sustained by the judge a quo. In this case,-the contest is between the wife and a creditor who is attacking and seeking to annul her judgment of separation of property previously obtained against her husband. The husband and tho wife were joined as defendants, and would seem to have separate interests. We think that, in the case presented, the wife should have been permitted to testify. In the secon-4 instance, she offered two witnesses to prove the receipt by her husband of a sum of money constituting paraphernal funds of hors, derived by succession from the estate of one of her deceased relatives. This was objected to on tbe ground that the judgment of separation of property was a consent judgment, and therefore null; that if the wife’s claims were well founded, she could not prove them to give vitality and force to-the judgment.

It has long been settled that, while the law accords to the creditors» of the husband ample scope for contesting the claims of the wife which stand • in their way when seeking to enforce their rights against the property of the husband, it also extends to her the equitable right of establishing all Iona fide claims and privileges awarded to her by law against the estate of her husband. And in cases where, through defective proceedings, her judgment of separation of property proves inoperative, she has the right, when unable to use it as a shield to protect herself, to prove her claims aliunde. 14 An. 684; 15 An. 33; 15 An. 81; 17 An. 113.

We think the testimony should have been admitted, and on this ground the case must be remanded.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance to be proceeded with according to law, the plaintiff and appellee paying costs of this appeal.


text:
    No. 2197.
    G. J Mortimer v. N. H. Thomas and Benjamin M. Harrell.
    In an action in damages for falso imprisonment malice will "be inferred, if the record shows-a want of probable cause for making the arrest. The inexperience of the attorney who-advised and instituted the proceedings, while it can not justify the arrest, may properly : be invoked in mitigation of the damages to which his client has been subjected.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J.. Randolph, Singleton & Brown, for plaintiff and appellee.

      Race,. Foster and J3. T. Merrielc, for defendants and appellants.
   Wyly, J.

The defendants have appealed from a judgment against, them for $1000 damages for the arrest of the plaintiff as a debt duo by him to the defendant N. II. Thomas.

There is no doubt that Thomas had a good cause of action against the plaintiff, but there was an utter want of probable cause for theariSSst of the latter, a citizen of Mississippi, who was not shown by the-oath of his complaining creditor to have absconded from his place of residence. Acts of 1847, pages 63 and 64; Revised Statutes of 1870,. sec. 87. We have no doubt that Thomas, the creditor, merely desired to collect the claim due him by the plaintiff; but the utter want of probable cause for the arrest, shown in Ms petition for arrest, is a-sufficient ground for inferring malice. 9 R. 418; 6 An. 577 ; 9 An. 219.

He acted under the advice, however, of a young lawyer who instituted the proceedings, whose ignorance of the law, although not justifying the arrest, might to some extent mitigate the damages to which his client should be subjected.

After a careful consideration of the evidence and the circumstances of this case, we have concluded that $500 dollars will be adequate for the three and a half hours during which the plaintiff was under arrest before he gave-bail, and for the detention thereafter of six days at tlie expiration of which time the writ of arrest was set aside.

It is therefore ordered that the judgment of the court below be reduced to five hundred dollars, and, as thus amended, that it be affirmed.

It is further ordered that the appellee pay costs of the appeal.


text:
    No. 3129.
    Succession of Antoine Decuir, deceased—On Rule by Creditors against the Administratrix.

      To enable a creditor to bare an administratrix of a succession removed from office, it must be alleged and shown, that the creditor has been injured by the misappropriation or maladministration (by the administratrix) of the jiroperfcy or funds of the succession.
    APPEAL from the Parish Court, parish of Pointe Coupée.

      Bouanchaucl, Parish Judge.

      Thomas J. Cooley and F. H. Farrar, for plaintiffs and appellants.

      Haralson <& Claiborne, for administratrix and appellee. ■
   Taliaferro, J.

This is a proceeding taken by sundry creditors to procure from the Parish Court of Pointe Coupée au order removing from office the administratrix of the succession of Antoine Decuir on the alleged ground of failure to file annual accounts of her administration, and that the sureties on her bond for the administration of the estate are insolvent. In answer to the rule taken the administratrix avers the solvency and sufficiency of her sureties to cover any liabilities that may arise on account of her administration. She admits that she has not filed an account of her administration, but is prepared to do so if allowed a reasonable time. She alleges that the inventory under which she gave bond, is composed principally of landed estate appraised much higher than the present market value thereof; prays that, a new inventory and appraisement maybe made, and avers her readiness and ability, if required, to furnish satisfactory security for her administration.

The parish judge after hearing the parties and considering the ■evidence adduced, refused an order destituting her from office, but retained her in office on condition that she; furnish sufficient security on her bond and file an account of her administration on or before the fifteenth of December, 1870, the decree being rendered on the third of that month.

From this judgment the creditors have appealed. There is a mass of evidence showing the insolvency of certain parties, who, it seems, are her bondsmen. The evidence shows, however, that some of them -own smaU amounts of property, and it is not shown that they are insolvent. But we find no sufficient data in the record to enable us to arrive at a satisfactory conclusion that the plaintiffs have made out such a case as entitles them to the stringent order they pray for. They ■do not allege, much less show that they have been injured by the failure of the defendant to file an account; no mal-administration nor misappropriation of the property or funds of the estate is shown or ■alleged. There is nothing in the record showing the value of the estate, no copy of the inventory or appraisement is given, and the ■amount of the bond of the administratrix is not shown. We are not prepared to say the decree of the parish court should be changed.

It is therefore ordered that the judgment of the parish court be ■affirmed with costs.


text:
    No. 3171.
    John Osburn, Under-Tutor v. Henry M. Rogers, Tutor of the Minor, Mary C. Osburn.
    '.Tbe absence of the Tinder-tutor at a family meeting, convoked for the purpose of recommending the appointment of a tutor, if the evidence shows that he was duly summoned . to attend, furnishes no ground for the under-tutor to annul the judgment appointing a tutor under the recommendation, of the family meeting.
    APPEAL from the Parish Court, parish of Rapides.

      Barlow, Parish Judge. William A. 8eay, for under-tutor, appellant.

      B. 8. Losee, for tutor, appellee.
   Wyly, J.

The plaintiff seeks to annul the judgment appointing the defendant tutor of the minor, Mary C. Osburn, on the ground that he, the under-tutor, was not present at the deliberations of the family meeting which advised the appointment.

The court gave judgment for the defendant and the plaintiff has .appealed.

The evidence shows that the under-tutor, after neglecting to have a tutor appointed for the minor for fifteen months, refused to attend the family meeting, provoked by the mother of the minor, for the appointment of a tutor, although he was duly summoned to attend the said family meeting.

It is evident from the record that he now seeks to make his own •dereliction of duty the ground for annulling the judgment appointing as tutor the defendant, who is the stepfather of the minor. There is no merit in his demand.

Let the judgment of the court below be affirmed with costs.


author: Wyxy, J.

text:
    No. 3157.
    John H. Kennard et al. v. A. D. Lafargue, President of the Police Jury of the Parish of Avoyelles.
    ' A contract made with a levee inspector of a parish, to construct a levee, under an ordinance * of the police jury, is not affected hy the subsequent repeal of the ordinance.
    The act ütfo. 312 of 1855, conferring authority on the police juries of all the parishes of the \ • State to pass all such ordinances as they may deem necessary relativo to roads, levees, ' bridges and ditches, is not repealed by the act of the seventeenth of February, 18GG, entitled “An Act to ratify the appointment of levee commissioners previously made by the G-ovemor of the State, and to continue their functions.” This act only repealed such parts of the act of 1855 as conflicts with.'its provisions. Therefore the police jury of the parish of Avoyelles was authorized by the act of 1855, notwithstanding the act of I860, to pass an ordinance authorizing certain levees within the parish to be built and to bind the parish for the payment of the cost of building the same.
    APPEAL from, the Seventh District Court, parish of Avoyelles.

      Miller, J. Irion & Thorpe, for plaintiffs and appellees.

      A. S. Bordelon, for defendant and appellant.
   Wyxy, J.

The police jury of the parish of Avoyelles is sued by the plaintiffs on three drafts, drawn by the levee inspector of said parish on the collector of the levee fund, for the amount alleged to be due them on a contract for building a levee in 1867, on the right bank of Bayou de Glaises, containing 7863 cubic yards, at thirty cents per yard.-

The defense is, besides the general issue, a denial that J. J. B. Kirk, who secured’the services of the plaintiffs, ever was levee inspector and had authority to hind the parish of Avoyelles in said capacity; that he had no authority to draw the drafts, and that the lands upon which said levee was pretended to he built, wore never previously assessed as required by tlio levee law. The respondent also averred that even if the said Kirk had authority to contract with the plaintiffs for the construction of the levee alleged to have been built, before entering into the performance of said work they were required to furnish a bond for the faithful performance of the contract, and that the document purporting to he a bond given hy them is not such, because there were no internal revenue stamps affixed to it, as required hy law.

On the issues stated the parties went to trial, which resulted in a judgment for the plaintiffs, as prayed for. The defendant has appealed.

What the parties term the levee law is an ordinance of the police jury, at the May term of 1867, dividing- the parish of Avoyelles into road and levee districts, authorizing the appointment of levee inspectors and providing for the repairs and construction of roads and levees in said parish.

The ninth section thereof provides that “it shall he the duty of the levee inspector to cause the levees in their respective districts to be rebuilt in accordance with the provisions of this ordinance; that he shall cause to he let out to the lowest bidder hy the cubic yard the levee on every proprietor’s front, after an advertisement of fifteen days, by posting up in three conspicuous places in each district, of the time and place of selling the building of said levee; that the purchaser shall enter into a contract with the inspector and execute a bond with approved security in favor of the president of the police jury, or Ms successors in office, for one-third above the amount of Ms bid, to commence and proceed with the work without delay, and to complete it within the time specified in the contract, and on failure of the purchaser to comply witli his contract in any particulars, the bond shall be forfeited, and it shall be the duty ‘of the inspector to report the same to the president of the police jury, who shall proceed immediately to take the necessary steps to enforce the payment of the bond.”

The ordinance further authorizes the inspector to receive the work when completed and to draw his drafts on the collector for the amount due the contractor.

The evidence in the record shows that the plaintiffs entered into the contract with the inspector and constructed the levee which was received by Mm, and that the drafts were given for the price thereof in pursuance of the ordinance of the police jury to which we have referred.

The subsequent repeal of this ordinance or levee law, as the parties call it, did not affect the plaintiffs, who contracted with the inspector while it was in operation.

Whether the bond given for the faithful performance of the contract was stamped or not is immaterial. It was accepted by the defendant; it is not the basis of this action; the plaintiffs are merely claiming the fruits of the faithful execution of the contract, and are suing on the drafts which the inspector gave them in settlement of the price of the levee at the time he received it.

There is no force in the bill of exceptions taken to the ruling of the court in permitting the drafts sued on to be received in evidence; and the reasons of the judge in the other bill to which our attention has been directed, are'sufficient to justify Ms ruling.

As to the want of authority in the police jury to authorize the construction of this levee, we will remark that act No. 312 of the acts of 1855, “ An Act relative to roads and levees,” declares “that the police juries of all the parishes of this State are authorized to pass all such ordinances as they may deem necessary relative to roads and levees, bridges and ditches.” * * * * * * * *

But the defendant insists that all authority of parishes to construct levees is repealed by the act of the seventeenth of February, 1866, act No. 20 of that year, and entitled “An Act to confirm and ratify the appointment of levee commissioners provisionally made bv the Governor of the State, and to continue their functions.”

This act gave the Levee Commissioners “full power to let out the ■contracts for the building and repairs of all levees in the State, which, in their judgment, are necessary to protect the alluvial lands from being overflowed,” and it gave the said board the “entire control and management of the levees let out by them,” * * * and it repealed all laws contrary to the provisions of the act.

We do not think this law repealed entirely the act of 1855 to which we have referred, giving authority to police juries to construct or provide for the construction of levees. It merely did so only so far as the exercise of the power heretofore delegated to the parishes conflicted with the provisions of the statute of 1866.

In adopting the ordinance under which the plaintiffs contracted to build the levee which gave rise to their cause of action, we do not see that the police jury of Avoyelles in the least conflicted with the act of 1866, conferring certain powers upon the Levee Commissioners of the State j and we think they had the right to pass the ordinance under the act of 1855 to which we have referred.

The evidence in the record fully sustains the judgment of the court below.

Judgment affirmed.