author: Bermudez, C. J.

text:
    No. 8329.
    Frances A. Donovan, Wife of A. M. Sullivan, et al. vs. The City of New Orleans.
    A riparian owner expropriated; for purposes of public utility, of land fronting on a street-, is liotdivested of his title to the batture iu formation between the street and the water.
    Batture property not necessary for public uses can he reduced to the private occupancy and absolute ownership of the proprietor.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Thos. J. S&mies and T. G-ilmore <& Sons for Plaintiffs and Appellants:

      t. The question of title as between the City and Donovan’s heirs is settled in Municipality No. % for opening Boflignac street. 7 An. 76. That case is res adjudicata.

    2. That case was one for widening the street; the right to recover the value of the batture then formed in front of Donovan’s lot, with subsequent accretions, in case the City needed it for widening the street-, was recognized and reserved.
    3. Therefore, as said batture, by, the advancing of the levee towards the river, has been ; brought within the dominion oí' private property, it cannot be retained for widening of an, existing street, without compensation. In this respect, this case differs from Sarpy in 13 An., where the batture was originally divided Into streets and squares.

      G> F. Bucle* City Attorney* and Wynne Rogers for Defendant and Appellee:
    1. In a suit by a “riparian owner ” against the City of New Orleans for possession of “batture,” instituted under authority of Section 318, ft. S., the plaintiff must allege and prove that the “ batture15 is not necessary foe “public uso.” The corporation must be presumed to hold for the use and benofit of the public, and this presumption must bo rebutted by positive testimony.
    3. The City of New Orleans has the right to hold and use, permanently, for “ streets and highways,” batture property formed in front of private estates, without compensating the. front proprietor therefor, ft. S., Section 318; Sarpy vs. Municipality, 13 An. 340.
    3. The opening and laying out of a street, running towards the river bank, to tbe limit of property owned and held in private ownership, or, in other words, to the line of the batture along the river bank, which is loom pitblicits, is in itself a dedication of so much of the batture as constitutes the extension of the street and precludes the possibility or right of private possession to, such portion of the batture; especially where, as in the case at bar, the City acquired, by purchase, for consideration paid, private property necessary to carry the street to the line ol the “ batture.”
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

On the averment that they are, through their deceased father, tbe owners of the batture lot described in their petition, and on the allegation that the same is in the possession of the City of New Orleans, but is no longer necessary for public use, the plaintiffs pray that it he reduced to private occupancy.

The suit is brought under the provisions of the Act of 1853, No. 333, now 318 of the Revised Statutes of 1870.

The defense is a denegation of ownership in the plaintiffs and of the uselessness of the lot to the City for public service.

From a judgment adverse to them, the plaintiffs have appealed.

I.

John Donovan, in August, 1845, acquired, at a bankruptcy sale, lot No. 5 of square No. 5, forming tbe corner of Front and Roffignae streets, measuring 47 feet 11 inches and 4 lines on Front street, together with * * the right to all the batture and alluvion which may be formed in front of said lob, so far as the same shall be embraced by extending tbe collateral lines of said lot across Front street into tbe river Mississippi.” '

In 1847, Municipality No. 2 brought proceedings for the widening of Roffignae street, from New Levee to Front street, and for the expropriation of this piece of land. The commissioners considered that the property consisted of two lots, one opposite the other, of equal front and width, between parallel lines, divided by Front street, and valued each, in their report, at six thousand dollars, $12,000 for both.

On appeal, tills Court thought that the use of the batture lot between the levee and the stream was in the public, the property or ownership being in the adjacent owner. In the apprehension that the batture lot might never be increased from what it then was, to any further extent, and might be diminished by some abrasion caused by the currents of the river, the Court refused to allow the six thousand dollars assessed as the value of the batture lot, leaving things, as far as regarded it, in statu quo.

The Court, however, said:

“ If, by the municipal authority, the levee should be advanced towards the river, and the batture brought within the domain of private property, by the extinguishment of the public use, and its subjection, as to possession and use, to the will of the owner, and the space under consideration 'should be required for a street, undoubtedly, the municipality would have to cause the owner to he indemnified for the property. But, until this occurs, the use of the batture is in the public.” 7 An. 76.

It is manifest from those dicta of the Court, that it clearly considered, and correctly, too, that the title of naked ownership to the batture lot was in the plaintiff who, in a contingency, could assert successfully rights of absolute ownership to it. The judgment may not be res judicata, because the question of title to the lot was not at stake. It was neither the judieandum nor the judieatum, but the views then expressed are surely good authority for the determination of the present controversy, which is between the same parties.

The theory apparently advanced, that the acquisition of the other lot by the City divested its owner of a right to the batture eventually to be formed, cannot obtain, for the very obvious reason, which it is unnecessary to develop, but which it suffices to indicate, namely, that Donovan’s right to the batture, which had already formed and which was susceptible of increasing, was not expropriated when, the other lot was.

There was at that time in existence, a considerable portion of the' batture lot, the possession of which is now claimed, and even if there had been none-, the hope, uncertain as it was judicially declared to be, but realized as it has since been, was property of which Donovan could not be and was not divested. The plaintiffs’ title is, therefore, beyond doubt.

II.

After the decision was rendered, Roffignac street was widened from 42 feet 7 inches and 4 lines to 90 feet, from Tehoupitoulas street to Front street, but no further. It continued beyond Front street to the river, in its original width, with the lot in question on its upper side.

The decree was rendered in 1852.- At that time the lot was far from being what it has since become. The apprehensions of the Court respecting a diminution by abrasion have proved unfounded. The batture has increased about six hundred feet. The plaintiffs actually claim only that space which exists between Front and Water streets, measuring 600 feet on Roffignac street, with a uniform width of 47 feet 11 inches and 4 lines.

The evidence clearly shows that this lot is not necessary for the public use. The hypothetical testimony of one of the experts, that the City does not need the piece of property for public purposes, if the City is obliged to pay for it, but the contrary, if the City is not to pay for it, is frivolous and hardly deserves consideration. The witness concludes, however, by saying that the City does not need it for public purposes, but only for the symmetry of the street.

There is no necessity to review and question the rulings in the case of Sarpy, 13 An. 346. It is sufficient to say, that the plaintiffs'there were asking the value of land taken for streets, which had been extended over their batture, where no streets had previously existed. In the present instance no street extends over the land claimed. The original street, more than 42 feet wide, extends alongside of the lot in question, and is ample for all actual public uses.

The ruling of the Court in the Winters case, 26 An. 310, is no foundation for the decision of the present controversy.

The dissimilarity is patent. In that case the plaintiff was not a riparian owner; in the present instance the plaintiffs are such.

In resting his decision on that case, the District Judge inadvertently overlooked the fact that plaintiffs’ author formerly owned the expropriated lot, with the right of batture, and that after the divestiture they continued to own what existed and would exist of the land now claimed.

It is, therefore, ordered and decreed that the judgment appealed from be reversed ; and it is now ordered, adjudged and decreed that “there be judgment in favor of plaintiffs, recognizing them as entitled to private possession, occupancy and enjoyment of the batture lot,in question, according to the prayer of their petition, and to costs in both Courts. ,


source: Caselaw Access Project

author: Todd, J. Manning, J. PoohiS, J.

license: Public Domain

text:
    No. 8369.
    William S. Campbell vs. John P. H. Short.
    Ab a general rule in action of damages, the damages should be estimated and assessed according to the condition of affairs existing before and up to the time of the institution of the suit, and a party is not entitled to recover expenses incurred for fees of counsel and expenses of attending the trial and for loss of time during the pendency of the suit, at least, without an amendment to the pleadings seasonably made, presenting such charges.
    PPEAL from tlie Civil District Court for the Parish of Orleans. Monroe, J.

      Singleton c6 Browne for Plaintiff and Appellant.

      W. S. Benedict and 11. Shaclcelford for Intervener and Appellee.
   The opinion of the Court was delivered by

Todd, J.

William S. Campbell, having a judgment against John P. A. Short for $1,239.75, caused to be seized, under a writ of fi. fa. issued therefrom, several thousand barrels of coal in a coal yard in this city.

F. C. Wilson enjoined the sale of the property, claiming to be owner of it, and prayed that his right thereto be recognized and that he recover $5,000 damages caused by the seizure.

Wilson’s pretensions were opposed by Campbell, the seizing creditor, on the. ground that the coal belonged to his debtor Short, and that plaintiff’s title thereto was a simulation.

There was judgment decreeing Wilson to be the owner of the property, perpetuating his injunction, and condemning Campbell to pay $523.83 as damages; and from this judgment he, Campbell, has appealed, and the appellee, by his answer, seeks to amend the judgment by increasing the damages allowed.

The title of Wilson to the.property seized is established by the positive testimony of himself and Short. It is shown that the coal was bought with money furnished by him, and that he conducted the coal business in this city through Short as his agent. The fact of Short being the son-in-law of Wilson, instead of discrediting Wilson’s claim, really strengthens it, by affording a reasonable explanation why Wilson, a resident of a distant State, should carry on such a business in this city through an agent. ■ The explanation is that he did it, as shown by his testimony, from a desire to assist his daughter.

We cannot give a preponderance over the positive testimony of these witnesses to presumptious invoked against the probability or reasonableness of the transaction from circumstances connected with the relative situations of the parties. We must, as did the District Judge who heard the witnesses, accept their statements as true.

This leaves open only the question of damages. We agree with the Judge a quo that no loss was shown to result from the seizure as affecting the value of the property during-its continuance and until released on bond, as during that time, which was less than a month, the price of coal advanced. We also agree with him that there is no ground to inflict punitive or vindictive damages. We, however, differ with him in regard to the amount or extent of damages. In estimating the amount, the Judge allowed for loss of time and expenses incurred during the pendency of the suit'.' We think the plaintiff should have been limited to such damages as he suffered before and up to the time the suit was brought. The complaint in his petition relates only to losses incurred and damage suffered up to that time. Indeed, the general rule is, that the assessment of damages is to be made and governed by the situation or condition of affairs existing at the time the suit is brought, unless some subsequent loss or damage occurring thereafter is presented properly by an amendment to the pleadings seasonably made. Therefore, we cannot.allow for expenses incurred in attending the trial of the cause, and the traveling, expenses of coming to this city for that purpose and returning, even admitting that plaintiff’s presence was necessary, which is not apparent; nor was he entitled to counsel fees incurred in the prosecution of the suit, the right to recover which was reserved to him in the judgment. A plaintiff in a suit, though successful, has no right to saddle his less fortunate adversary with such a charge. And there is no reason why this suit should be considered an exceptional one in this respect.

The only damage we think the plaintiff is entitled to under the evidence, which we have carefully considered, is one hundred and fifty-eight dollars and thirty-three cents, ($138.33,) allowed for the expenses of his trip to this city and loss of time during his stay here after the seizure was made of his property, but prior to the institution of the suit.

It is, therefore, ordered, adjudged and-decreed that the judgment appealed from be amended by reducing the amount of damages therein allowed to $158.33, with legal interest thereon, and striking out the reservation of the right to recover attorney’s fees for the prosecution of the suit, and as thus amended the judgment is affirmed, appellee to pay costs of the appeal.

Dissenting Opinion.

Manning, J.

I have not a doubt that the property seized was Short’s, and is therefore liable to seizure for his debt, and it is not at all necessary to discredit Wilson in order to reach that conclusion. He is father-in-law to Short, and lives far away. Is it credible that a man living in tlie interior of Missouri should engage in a retail coal business in New Orleans, hiring a salaried clerk or agent here to carry it on for him ? No doubt Wilson thought he had fixed the matter so securely that Short’s coal business could not be disturbed. He had furnished the money to carry it on, and had put on record a power of-attorney to Short, so that nothing was wanting to give the arrangement a plausible appearance or waisemblanoe to a bona fide agency. But. underneath all this it is manifest to me that thi,s was nothing more nor less than a device to hide the actual fact. Wilson did not expect or intend to derive a dollar of revenue from this business. He intended that Short and Short’s family should have it all, and that makes it Short’s property.

But even if I thought otherwise, I could not consent to mulct Campbell in damages for seizing property which he had every reason to believe belonged to Short. These two men had had a contract for coal. Campbell sold and Short bought a quantity of it. The very ■judgment Campbell was executing was for coal not paid for by Short. Why should he not believe that his debtor, whom he found pursuing the same business as before, was carrying ,it on as before, and that the property was his own ? The answer is, he was warned it was otherwise. He was told that Wilson, a man in Missouri, had set up the retail coal business here, and Short was only his agent. Why should he not believe that this was only a screen, and a very transparent one, to illegally protect his debtor’s property from his pursuit. I think appearances indicated it, and even if the fact was otherwise, he ought not to be mulcted in damages for acting on a belief that was reasonable.

Concurring Opinion.

PoohiS, J.

I concur in this opinion.


author: Manning, J.

text:
    No. 8576.
    Edward F. Stockmeyer vs. Henry Oertling.
    Solidarity of obligation is not a prerequisite to the possession or exercise of the right of a surety to enforce contribution. Tke necessary .conditions are that the persons must have been sureties for the same debtor, and for the same debt, and the surety who is demanding contribution must have paid in consequence of a lawsuit.
    The terms of the Code do not presuppose a joint liability to a common obligee which has been discharged by one of the'joint obligors, but the presupposed liability may be several as well as joint.
    The party from whom contribution, is demanded must have been under a legal obligation to pay at the time payment was made by him who demands the contribution.
    APPEAL from the Civil District Court for the Parish of Orleans. Mightoi'j J.

      W. Huntington and H, L. Dnfour for Plaintiff and Appellant.
    Brangim, Buolc é Hinlcelsigiel for Defendant and Appellee:
    1. A dooision of Ibis Court, settling the nature and extent of liability of persons as sureties on a bond sued on, is conclusive as between tbe parties to tbe auit. Ledoux vs Durrive, 10 An. p. 7.
    2. In a subsequent suit between alleged oo-sureties for “contribution,” such decision, though, not technically Laving the force of ros judicata, determines tbe rights of tbe parties and is oonoluslvo as to all matters decided therein.
    3. On an exooption of no cause of action, all documents annexed to the petition form part of it»
    4. A bond whioh, as between tbe sureties, expresses no joint or solidary obligations as among themselves is a several obligation, with no greater foroo than if eaob undertaking were evidenced. by a separate and distinct writing. The obligation to “ contribute,” as between tbe different persons or sureties, does not therefore exist, and tbe exception of no oanse of action disclosed should ho sustained in a suit by one of them against another, Teutonia Bank vs. Wagner et alM 33 An. 732.
   The opinion of the Court was delivered by

Manning, J.

This suit is a pendant to Teutonia Bank vs. Wagner, 33 Ann. 732, where it was held that the sureties of Wagner, though bound solidarity with him, were several obligors inter sose, because solidarity between them was not expressed.

The plaintiff was one of those sureties, Bogel was another. These two paid the judgment against themselves as sureties upon that bond'. The plaintiff then acquired Bogel’s rights against others and brought this suit against Oertling, another surety, to recover of him his proportionate share, (one-third thereof) of the sum paid in extinguishment of the judgment.

The defendant excepted that the petition disclosed no cause of action, whioh was maintained aud the suit dismissed.

The obligations of the sureties to that bond have been judicially declared to be several, as much so as if each had separately bound himself by an independent contract.

The textual provision of our Code is that when several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt has his remedy against the other sureties in proportion to the share of each. Rev. Civ. Code, Art. 3058, (3027.)

Solidarity of obligation is not a prerequisite to the possession or exercise of the right to enforce contribution. The three necessary conditions are that the surety who is demanding contribution, and the surety from whom it is demanded, must each have been surety for the same debtor, and for the same debt, and satisfaction of the debt must have been enforced against the surety demanding contribution by a lawsuit.

These requisites unite, and are disclosed in the'petition of the plaintiff.

The cause and source of the error of the defendant is an incorrect dictum in Ledoux vs. Durrive, 10 Ann. 8, where the Court say, the, terms of this Article of the Code presuppose a joint liability to a common obligee which has been discharged by one of the joint obligors. It is manifest that the liability presupposed is not necessarily joint,, but may be joint or several, and the expression is not only incorrect but was unnecessary, the Court in that ease immediately proceeding to a concise statement of the two opinions which divided the French, legists as to the foundation of the recourse which the paying surety' has, and summing up with the conclusion that according to either view, the party from whom contribution is demanded must have been himself under a legal obligation to pay at the time payment was made by him who demands the contribution.

The judgment of the lower court is therefore reversed, and the cause is remanded to be proceeded with in due course, the defendant paying costs of appeal.


text:
    No. 8275.
    Mary Taylor, Wife of T. P. May, vs. Archibald Boulware.
    Where the owner of two lots, with buildings on them, sells one of them, and between them an apparent sign of servitude, such as windows, exists, and the deed of sale is silent respecting the servitude, it shall continue to exist in favor of the lot which has been sold.
    !3Che circumstance that the blinds to the windows were closed and boards nailed across them at the time of sale, and had been continuously for many’years, will not change the apparent servitude, or extinguish it. In order to constitute an extinguishment of it, the works erected to present an obstacle to the exercise of the servitude must be of a permá- . nenfc and solid kind, and the obstacle thus presented must he absolute. Non-user of a window, or inability to use it, because of obstructions apparently temporary, will not be a release or extinguishment of the servitude.
    Water pipes, gutters, iron staples driven into a wall, and such like, will constitute a servitude upon one lot in favor of another lot, when erected by the owner of both and used during his ownership, and this apparent servitude will continue upon the lot owing it after it has been sold.
    Screens erected on a lot, which obstruct the view over it from the house on an adjoining lot, hut do not impede or prevent the opening of the window shutters in such house for the enjoyment of so much light and air as can be had by the opening of the shutters merely, are not an obstruction to the enjoyment of the servitude of the windows, which can be successfully complained of.
    APPEAL from the Civil District Court for the Parish of Orleans.- , . Tissot, J.

      Titos. J. Cooley, for Plaintiff aiul Appellant:
    Plaintiff claims to have certain windows, shutters, etc., in the house she purchased from defendant, and which defendant had caused to bo closed and nailed up after the sale, opened, and her right to the use of the same decreed; and also that certain scrceus erected "by defendant opposite to said windows "be removed, and for damages, and for the removal of certain fixtures over the dividing line, etc.
    1. Plaintiff claims that the windows and shutters, etc., were not closed at the time of the Biffe—one certainly was not, as is clearly proved and not contested in the court below*. See Breard vs. Ins. Co., 29 An. 764, and Mathilde ve. Levy and Scheuir, 24 An. 401, as to reliability of testimony of witnesses.
    2. Even if the window abutters were clpaed at the time of the sale, it is contended that they were continuous apparent servitudes, established by defendant himself as owner of two estates, and as no mention is made of them in the act of sale, they must remain in favor of plaintiff. C. C. 769 (765); Alexander va. Boghel, 4 L. 312; Barton ve. Kirkman, 5 It. 16; Laviliebeuvre vs. Cosgrove, 13 An. 323; Cleris vs. Tieman, 15 An. 3JG; Durel vs. Boisblanc, 1 An. 407; Gottachalk va. De Santos, 12 An. 473.
    3. “ Servitudes are either apparent or non*apparent Apparent servitudes are such as are to be perceivable by exterior work, such as a door, a window, an aqueduct." C. 0. Art. 728 (724).
    4. Servitudes can only be extinguished in the mode and in the contingencies provided by law. C. C. 783 et seq.j Duranton, vol 5, No. 654; Toullier, 1. II, o. iv, § 7, No. 684; De» molombe des Servitudes, v. 2, pp. 488 et seq.j Laviliebeuvre vs. Cosgrove, 13 An. 324; C. C. Art. 820; Mourlon Hep. Eorites, v. 1, p. 870, sec. 4, and p. 873, sec. 3.
    5. The line dividing the two properties is six inches outside of the wall of plaintiff’s house, and she bought from defendant the property “with the buildings and improve* ments thereon, and appurtenances thereunto belonging or in anywise appertaining"- and there being no qualification in the act of sale, plaintiff became owner of everything within that line, as “ the ownership of the soil carries with it the ownership of all that is directly above it and under it,” and therefore all apparent servitudes. O. O. 505 (497).
    6. If there were strips nailed across the shutters, they could not be seen either from the . outside or from' the inside—so that plaintiff is not bound by this pretended extinguishment of a clearly apparent servitude even if such a work could have the effeot of extinguishing ' an apparent servitude. C. C. 2520, 2496, 2541, 2542.
    7. “ The seller who knows the vice of the thing he sells, and omits to declare it, * * is amenable to the buyer in damages." C. C. 854-5.
    8. “ The discovery of the vice is not to be presumed—it must be proved by tho seller." C. C. 2546 (2524).
    9. If the property was burthened with a non*apparent servitude, and no declaration made of it by the vendor, the sale may he rescinded or the price reduced, according to the gravity of the case. C. C. 2515 (2491); Troplong, Vente, Nos. 534 et seq., 525 and 52(1; ’Duranton, vol. 16, No.310.

      Singleton & Browne for Defendant and Appellee :
   The opinion of the Court was delivered by

Manning, J.

The defendant was the owner for several years of the two adjoining lots on Camp street numbered 469 and 471. He built a brick building of two stories and an attic, with a two-story wing, on No. 471 in 1855, and a cottage of one story and attic on No. 469 in 1865. The houses were two and a half or three feet apart.

The brick house was built with windows in the side towards lot No. 469, in which were the usual sashes, and these were covered by Venetian blinds with movable or revolving slats. When the defendant built the cottage, he nailed boards across these windows on the outside, thus preventing the opening the Venetian shutters, and shutting out the view over the cottage lot, and excluding light and ventilation from that side of the brick house. These boards had remained foi; about fifteen years, viz., from 1865, when the cottage was built, to 1880, when he sold the brick house and lot to the plaintiff. They were there when the plaintiff took possession in the same condition as when first put there.

Mrs. May bought in April, 1880, for' five thousand two hundred and fifty dollars cash, but Boulware was to remain in possession until first of September following. A few’ days after she went into the occupancy of the brick house, she gave Boulware notice to remove the strips of board from across the window blinds, so that the shutters might be opened and closed at her pleasure, and if it was not done in forty-eight hours, that she would have them removed. He refused to remove them, and she had it done. Thereupon he had screens erected on his own lot, No. 469, opposite the windows of No. 471, to protect the adjoining cottage from view. The tenant of his cottage had promptly complained as soon as the windows were opened, and notified the defendant that he would be compelled to move if the windows were not closed as before. These windows were in the upper story and gable end of the attic, and overlooked the cottage and the lot No. 469.

The object of the present suit is to compel the defendant to remove these screens, and for the recovery of fifteen hundred dollars as damages, suffered and to be suffered, from deprivation of light and air, and twelve hundred dollars additional for depreciation in the value of the brick house, from the assertion by the defendant of his pretended right to shut out light and air from that side of the house; and in the event the Court should hold that the defendant rightfully closed the windows and erected the screens, then the plaintiff claims such right was a non-apparent vice and defect in the property, for.which a reduction in the price of twelve hundred dollars should be allowed, for which sum judgment is prayed.

The plaintiff also complains of a water pipe fastened to the wall of ti®f house, leading from the cottage; and of two sheds on the cottage lot that overlap the dividing line one inch or more, which sheds are fastened to the weather boards of the rear of her building; anda gutter runs across the line a foot or more; and the front gate-bell is fastened to her property; and two iron staples for supporting a clothes-line are driven into her wall; all these things being for the convenience of the cottage lot, and cause her five hundred dollars damage. She prays the removal of all of them.

The defendant justifies the erection of screens for the protection of Ills cottage, charges the plaintiff with a trespass in illegally and tortfously opening the windows which had been closed for fifteen years continuously, and demands two thousand dollars as damages therefor, .and prays that the windows be closed as before. The answer passes by the complaints of the two iron staples, and id genus omne, in contemptuous silence.

| The provisions of the Code on the matter are! If the owner of two estates, between which there exists an apparent sign of servitude, sell .one ,of those estates, and if the deed of sale be sileut respecting the .servitude, the same shall continue to exist actively or passively in favor of or upon the estate which has been sold. Rev. Civ. Code, Art. 769.

Servitudes are either visible and apparent, or non-apparent. Apparent servitudes are such as are perceivable by exterior works, such as a door, a window, an aqueduct. Non-appareut servitudes are such as have no exterior sign of their existence, such for instance as the prohibition of building on an estate, or of building above a particular height. Ibid,' Art. 728.

The destination made by the owner is equivalent to title with respect to continuous apparent servitudes. By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to two different owners. Ibid, Art. 767.

There does not seem to be room for doubt that there existed an apparent sign of servitude in the windows when the defendant sold to . the plaintiff, and the deed is splent respecting it. Not only is the deed silent, but the defendant was reticent to all to whom he should have spoken of the barred windows, if barring them was supposed by him to have the significance he now claims for it. No one, examining a house with a view to purchase or occupancy, and seeing the Venetian blinds with a board nailed across them on the outside, would think, or have reason to think, that this obtruction to opening them was permanent. It does not alter the case that these windows had been thus closed fifteen years or other considerable time. The defendant had the right to close them when he did, for he was owner of both lots, and he could have taken them, away, and made that side of his houses an unbroken surface of-,brick, and had he done so before Mrs. May’s purchase, !she could not have complained. But instead of doing that, he left the windows and blinds, perceptible on the exterior and from the interior, .with all appearance of destination to use, save only that immediate present use was prevented by an obstruction that in appearance was temporary. Yery great stress is laid, both by defendant and by the Judge below, on the circumstance of the slats of the Venetian blinds having been “reversed,” by which they seem tornean the slats • were turned up.

Venetian blinds are turned up or down every day as occasion requires. Tlie object in having the slats rolling or movable is to turn them either way, and. the way in which they are turned depends upon the object to be accomplished. ' These windows cannot be seen from the street, but of course the plaintiff saw them from within when she examined the house, and it is urged that as the “ blinds were reversed” and a board nailed across the 'outside, she was bound to notice that condition. We take for granted she did notice it, and that is precisely why we think she had a right to believe she would have light and air through the windows, for she could not see, from within, the board nailed across the outside, and if she did see it while outside most likely regarded it as a precaution of safety. The real estate agent who negotiated the sale for Boulware examined the house, passed all the openings inside, and did not notice the boards, nor did Boulware mention to him that the windows were closed permanently, and not in-* tended to be reopened. The servitude was visible and palpable as in Durel vs. Boisblanc, 1 Ann. 407; see also Alexander vs. Boghel, 4 La. 312; Barton vs. Kirkman, 5 Rob. 16.

The identical question here presented came before the Court in Lavillebeuvre vs. Cosgrove, 13 Ann. 323. Six months before Cosgrove bought, the plaintiff Lavillebeuvre closed a window which had existed in the partition wall from the time when the wall was built, by nailing heavy planks across the Venetian blinds of the window on the outside. The planks were there when Cosgrove bought, and he took them away and reopened the-window. Lavillebeuvre brought the action to have the window closéd, and sounding in damages for a trespass, and contended that Cosgrove acquired the property as it was at the time of his purchase, and because the window was then closed by boards, it must remain boarded up in perpetuity, and the removal of the boards was a trespass. The Court held otherwise saying, it is pretended the servitude was lost by barring up the window, but it was not. The Code expressly provides, in order that the tacit release of a servitude may be inferred from the permission' given, by the owner of an estate to which it is due, for the erection of works which prevent the exercise of it, it is necessary that the works thus constructed be of a permanent and solid kind, such as an edifice or walls, and that they present an absolute obstacle to every kind of exercise of the servitude. Rev. Civ. Code, Art. 820. There can be no question of prescription in the case at bar since Boulware owned both lots up to the sale to Mrs. May, and he cannot prescribe against himself.

Nor can the servitude be claimed to have been extinguished. Among other means of extinguishing servitudes is such a change taking place that the thing subject to the servitude cannot be used. - Rev. Civ. Code, Art. 783. And as an example of a change which does not extinguish the servitude the French writers say, thus a window, an aqueduct, preserves the right of servitude, although it is not used. Toullier, L. 31, T. 4, c. 3, No. 709; 2 Demolombe des Servitudes, p. 488 et seq.

But it does not follow as a corollary, if Mrs. May has a right to open the windows for light and air that the defendant’s screens cannot remain to obstruct the view into his lot. She has a right to such light and ventilation as may be obtained by the removal of the boards from the outside of the windows, but the screens are equally necessary to protect his cottage property from intrusive eyes. There can be no doubt that the defendant could build another story to his cottage, which would obstruct the view from the brick house as much as the screens.

As to the other branch of the case, it seems certain from the proof that the water pipe, and iron staples, et cestera, are servitudes upon the plaintiff’s property due to or in favor of the defendant’s lot, established by the latter when owner of both, and existing at the time of the plaintiff’s purchase. The Judge below so found, and he also rejected the money demands of both parties.

It is therefore ordered and decreed that the judgment of the lower court is affirmed in this respect, viz : rejecting the demands of both parties for damages, and disallowing the plaintiff’s demand for the removal of the staples, and sheds, and gutter, etc.,.and in this respect that it be amended, so that the plaintiff have judgment recognising her absolute right of servitude in all the windows as claimed, and in this other respect that it be reversed, wherein the removal of the screens is ordered and the defendant’s claim to have certain of the window's re-closed and the boards again nailed across the blinds is recognised, which claim is now rejected, the costs of appeal to be paid by the parties in equal parts.

On Rehearing.

The plaintiff claims that so much of the judgment of the lower court as was in her favor cannot be disturbed because the appellee did not pray any amendment. No prayer for amendment had then been filed, but the defendant acted on that suggestion and filed an answ'er praying the amendment he desires. This answer was not. filed until nearly two months after the plaintifffs petition for rehearing. Of course it comes too late.

It is also claimed by the plaintiff that she cannot exercise the right of servitude in the windows unless she is permitted to open the shutters fully and entirely, but we held, while the defendant could not again reclose the windows and nail boards across the shutters, she was entitled only to such light and ventilation from the windows as may be obtained by the removal of the boards from across the shutters, which does not imply that she may fully open them. If she may fully open the shutters, the defendant could not erect a second story upon his cottage which would obstruct her view, but we held that he could, and we said it to illustrate the extent of that servitude in the windows which she had. ’

The removal of the boards from across the shutters enables the plaintiff to' move the slats up or down at pleasure, and to open the shutters even partially, but not to spread them “ wide open,” and thus obtain an unrestricted view upon and over the defendant’s lot and cottage.

It is therefore ordered and decreed that the judgment of the lower court, ordering the screen opposite the window marked B to be removed, remain unaltered, and that plaintiff’s right of servitude in the windows does not extend to opening the shutters fully and entirely, but only so far as was prevented by the boards nailed across them, and that so much of our former decree as is inconsistent herewith is set aside, and that the defendant pay the costs of appeal.


author: Bermudez, C. J. Fenner, J. Bermudez, C. J.

text:
    No. 8513.
    S. G. Laycock vs. The City of Baton Rouge. The Same vs. The Same. The Same vs. The Same. Consolidated.
    The debt sued for in this case being for the current expenses of the Municipal Corporation, and payable out of the current revenues of the several years in which it was contracted, does not fall within the restrictive operation of Section 2448 of the .Revised Statutes.
    ' * PPE AL from the Seventeenth District Court, Parish of East Baton il Rouge. Sherburne, J.

      Herron <6 Beale for Plaintiff and Appellee.

      David JSf. Barrow on the same side. ■

      Bead & Goodale for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff seeks to hold the City' of Baton Rouge liable for a supply of gas during stated periods. .

To this end he instituted three suits: one in the name of the stockholders of the Gas Co., (of whom he was one) as holders of warrants issued by the City.for the gas supplied, and two others, in his own ñamó, also as warrant holder.

After an exception to the first suit, requiring the disclosure of the, names of the stockholders which he claimed to represent, the plaintiff, filed a supplemental petition, alleging himself the owner of the war-, rants sued upon. . .

Subsequently, the defendant asked that the eases be cumulated, and upon it being thus ordered, the City filed a general denial, specially charging absence of ownership in plaintiff and of liability on the part, of the corporation. The further defense of prescription was set up. , • From an adverse judgment the City appeals. We deem it unnecessary to pass upon the preliminary defenses, and will determine the, controversy from a different standpoint on the merits of the suit.

It is clear that the plaintiff seeks payment of a debt averred to have been created by the City of Baton Rouge.. As it is not a claim ex delioto, it is necessarily one ex eontraetn. Under the features presented, a contract and a quasi contract would have to stand on .the same bottom.

The question involved and to be decided is purely one of power on the part of the corporation to contract and to incur an obligation on the one hand, and of the cancellation of a right claimed to have been acquired by plaintiff’s assignors-and transmitted to him.

Dillon, in his work on Municipal Corporation, expressive of the essence of the jurisprudence on the principles by which the liability of those juridical persons are to be tested, tersely sáys :

“ In determining the extent of the power of a municipal corporation to make contracts and in ascertaining the mode in which the power is to be exercised, the importance of a careful study of the charter or incorporating act and the general legislation of the State on the subject, if there be any, cannot be too strongly emphasized. Where there are special provisions on the subject, these will, of course, measure, as far as they extend, the authority of the corporation. * * *

“ It is a general and fundamental principle of law, that all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation or its officers, and a contract, beyond the scope of the corporate power is void, although it be under the seal of the corporation.

“Respecting the mode in which contracts by corporations should be made, it is important to observe that, when the mode of contracting is specially and plainly prescribed and limited, that mode is exclusive and must be pursued, or the contract will not bind the corporation.” $$371, 372, 373, and authorities cited.

Speaking on this subject of corporations, C. J. Marshall said: “ Tlie' act of incorporation is to them an enabling act. It gives them all t(ie powers they possess. It enables them to contract, and when it prescribes to them a mode of contracting they must observe' that mode, or the instrument no more creates a contract than if the body had never . been incorporated.” 2 Cranch U. S. 127.

Cooley on Const. Lim., Sec. 196, p. 237, 4th ed.; says: “It must follow that if, in any case, a party assumes to deal with a corporation on the supposition that it possesses power which it does not, or to contract in any other manner than is permitted by the charter, he will' not be allowed, notwithstanding he may have complied with the' undertaking on his part, to maintain a suit against the corporation, based upon its unauthorized action.” Vide Green’s Ultra Vires, p. 42. ‘

“ It results from this doctrine, that unauthorized contracts are Void,' and in actions thereon the corporation may successfully interpose the plea of ultra vires, setting up as a defense its own want of power under its charter or constituent statute to enter into the contract.” Dillon, $ 381.

“ The doctrine of implied municipal liability,” says Mr. Chief Justice Field, in a case where the .subject underwent thorough examination, “ applies to ©ases where money or other property of a party is'received under such circumstances, that the general law, independent of express contract, imposes the obligation upon the city to do justice with' respect to the same. * * * As a general rule, a city corporation is only liable upon express contracts, authorized by ordinance (or other due corporate proceedings). The exceptions relate to liabilities from the use of money or other property which does not’belong to her, or to liabilities springing from the neglect of- duties imposed by her charter, from which injuries to parties are produced.” Argenti vs. San Francisco, 16 Cal., 255, 282.

It may well be, however, that sometimes an ordinance may not be indispensable. For instance, it has been held that a city is liable for gas furnished to it with knowledge of the council, though no ordinance or resolution was passed authorizing it to'be furnished. 8 Cal. 453, 466; but in this State the law prohibits, in negative terms, municipal organizations, police juries and the constituted authorities of incorporated towns and cities from contracting any debt or pecuniary liability, without adopting an ordinance to create the debt, and providing in it the means of paying the principal and interest of the debt so contracted. Act 263 of 1855; R. S. 2448; Charter of Baton Rouge, 114, 1874, Sec. 26.

In a number of instances, in which parties claiming to be creditors of municipal corporations, in the absence of a compliance with the requirements of this prohibitory and mandatory law, the Courts have uniformly exonerated the corporations. 12 An. 496; 15 An. 667; 23 An. 192, 232, 251; 24 An. 457; 26 An. 59; 27 An. 319; 28 An. 343; 29 An. 590, 673; 30 An. 40, 152, 461; 32 An. 180; 33 An. 386.

In the case of Talbot vs. Parish of Iberville, 24 An. 135', the Court; however recognized the liability of an involved corporation for the payment of the fees of attorneys employed to relieve it from embarrassment, for which an appropriation appears to have been subsequently made in the budget of receipts and expenditures. The Court thought such to be contingent, expenses, which did not fall within the prohibition of the law, and which had to be incurred ex necessitate.

The case also relied upon in 13 An. 430, was a writ against the City of Shreveport for damages said to. have been sustained in consequence of work done under an ordinance for the grading of a street, which ordinance, it was cláimed, the city had no right to pass and execute, because it was violative of the Act of 1855, in not observing its requirements., It was an action ex delicto for a quasi offense, not one, therefore, to draw money in satisfaction of a debt contracted, .without adopting an ordinance and- providing for payment. It was in order to repel a charge of trespass against the city, that the language referred. to, which is argumentative and obiter, was used. The Court was, nevertheless, careful in distinctly stating that the ordinance created no specific debt, thus differentiating the action under consideration from one ex contractu.

The principles recognized in the authorities to, which plaintiff’s learned counsel have invited our attention are indisputable, but they have no application to a case where a prohibitory law lias been violated. Some of them expressly recognize the distinction, those in 15 Wall. 570 and 96 U. S. 258, particularly.

In the present instance, no ordinance was passed and no provision was made for the payment of the gas to be supplied.

It was beyond the power of the corporation to have incurred obli-. gations and conferred rights otherwise than by a rigid observance of the mods requiring the fulfilment of essential conditions precedent, Whatever may have been subsequently done cannot have the effect of infusing life .into that which was lifeless in embryo. An act ultra vires is not susceptible of ratification by the disabled corporation,

If subsequent acts, however formal they might be, could be success? fully opposed and urged as supplying original fatal deficiencies, the prohibition would be a dead letter on the statute book, and corporations, which have only jura minorum, could validly do indirectly that which they cannot legally do directly»

The jurisprudence of this State, based on recognized principles and in accord with that of our sister States, has invariably proclaimed that the restraints plaeed upon municipal corporations, for the public good, were legitimate and had to be respected»

The view which we have taken of this case dispenses us from passing expressly on the plea of prescription» '

The judgment of the lower court is erroneous. It is, therefore, ordered and decreed that the judgment appealed from be reversed, and that there be judgment in favor of defendant, rejecting plaintiff's demand with cost of both Courts.

On Rehearing»

Fenner, J.

We granted this rehearing because satisfied, on are-consideration of the case, that the debt herein sued for, being for ordinary current expenses of the corporation, and payable out of the current revenues of the several years in which it was contracted, does not fall within the operation of Section 2448 Revised Statutes.

Judge Dillon, in treating of this precise question, says : w An Act of the legislature prohibiting counties and cities from thereafter contracting any debt or pecuniary liability without fully providing, in the ordinance creating the debt, the means of paying'the principal and interest of the debt so contracted,5 does not extend to ordinary street work, which forms part of the current expenses of the corporation, and which may be paid out of its current revenues.55 1 Dillon, Mun. Corp», Sec. 88.

This Court, referring to the very statute now under consideration, long sinee held, that ordinances directing work to be done upon streets and not involving the giving out of obligations beyond what the current revenues of the town may meet, do not seem'to us to be within the meaning of the prohibitory law relied upon. Reynolds vs. Shreveport, 13 An. 430.

Consideration of the methods and necessities of municipal administration must enforce the correctness of these views.

The very language of the prohibition, requiring provision for paying the principal and interest of the debt so contracted,” obviously Suggests reference to debts not covered by the ordinary annual appropriation of current revenues and expected to be paid out of the same, but which are to be paid in the future, or which, at least, from their iiature would not, in ordinary course of financial administration, be paid without special provision therefor. Inasmuch as special provision must, at sometime, be made, the law requires that to be done at the moment of creation of the debt. As we said in 'a former casé, “ its motive was to restrain municipal extravagance by requiring corporate officials, at the moment of contracting debt, to contemplate the necessity of providing for its payment, and, by requiring such actual provision, to keep the taxpayers advised of the burdens to which they were being subjected by their official agents, so that they might hold them responsible therefor.” Oubre vs. Donaldsonville, 33 An. 389.

These considerations have no application to ordiuary and necessary administrative expenses, payable, and expected to be paid, out of the ordinary current revenues.

Municipal corporations ordinarily adopt an annual estimate of receipts and expenditures. The estimate of expenditures usually appropriates tlie anticipated revenues to the various branches of administrative expenses in'certain proportions or fixed amounts. There are officers to whom are entrusted these several branches of administration and who conduct the same, subject to the general supervision of the corporate council.

Take, for example, the ordinary appropriation for streets and landings.” One of the obvious purposes would be to keep the streets and landings in order and repair. This requires the employment of laborers. Every employment of a laborer necessarily involves the obligation to pay him, and thus the creation of a debt. Would any one suppose that, in every such case, an ordinance would be required making provision for its payment? Naturally; these laborers look for their payment to the current revenues raised for and devoted to the general administrative purpose.

Now, in the case at bar, the record establishes that, in every year except one, the council of defendant adopted a general estimate of receipts and expenditures. In the latter was included a large item for “ streets and landings.” The evidence is clear that tliis was intended to include, and did include, the expense of lighting the streets, landings and public places generally. The Gaslight Company, the assignor of plaintiff, was regularly employed to do such lighting, and actually did the same. Its accounts were presented, at brief intervals, during the several years, and were duly audited and approved, and warrants were drawn by the auditing officer upon the proper’disbursing officer, for the amounts of the. various bills specially drawn against the “streets and landings” appropriation. Many of these warrants were paid, but, in eacli of the several years some of them remained unpaid, owing to the deficiencies of receipts,, and the latter form the basis of , the present suits. These warrants have been repeatedly recognized by the city authorities in various ways, and several funding ordinances have been passed for their liquidation, and they have been admitted to registry under the provisions thereof, and suudry payments on account have been made in order of registry.

There is no dispute about the rendition of the service and the correctness and propriety of the charges therefor. The only dispute, on the .merits,, is as to the validity of the debt, on the ground of noncompliance with the prohibitory law .referred to. , The authorities quoted and the views hereinbefore expressed satisfy us that the law does not apply to a debt of this character.

- We attach no importance to the absence of proof of adoption of any estimate of receipts and expenditures for the year 1872. The evidence does not affirmatively establish that no such estimate was adopted; but, if it were otherwise, it is shown that the revenues were, in fact, collected and appropriated to administrative purposes, as in other years, and the warrants drawn for payment of the Gas Company were, as usual* drawn on the “ Streets and Landings ” fund.

They were ordinary administrative expenses payable out of current revenues.

The case of Taxpayers vs. New Orleans, 33 An. 568, has no application. Thei’e existed no provision of law or Constitution applicable to defendant, striking with nullity indebtedness- otherwise validly contracted, because the revenues out of which it was expected to be paid proved insufficient or was otherwise used.

The warrants herein sued on as evidence of the debt are proper and legal, vouchers for the debts represented thereby, which the municipal corporation was competent to issue, and the issuance of which was, indeed, the lawful and customary mode of auditing and liquidating municipal indebtedness. They do not fall within the principle of: various cases quoted annulling warrants issued by police juries for purposes of circulation, or to raise money, etc.

We discover no force in the objection that the plaintiff, as assignee of the warrants, does not thereby become owner of the indebtedness represented thereby.

. The exception to the amended petition filed by plaintiff in the first of these suits, wherein lie alleged that, since the filing of his original petition in which he sued for the use of certain third persons, he had acquired the ownership of the claim, and, therefore, asked thatdie he individually substituted as plaintiff, is disposed of by the authority of Payne vs. Furlong, 29 An. 160.

This amendment, being legal, eviscerated the entire substance of tbe exceptions which defendant had filed to the original petition, and left him nothing to complain of.

The various funding acts of the city heretofore referred to, the admissiou fco registry thereunder of these warrants, as valid obligations, and the payments made on them at various times, conclusively rebut the defense of prescription.

It is, therefore, ordered that our former decree herein be annulled and set aside. And it is now ordered that the judgment appealed from be affirmed at appellant’s cost.

Dissenting Opinion.

Bermudez, C. J.

Supplying the City of Baton Rouge with light was a matter which should have formed the object of a contract. The record shows that, anterior to the date of the first supply, there had been such contract with the City. The charter is to the effect that all contracts for public works or for materials or supplies, when the same exceeds two hundred dollars, shall be given after certain formalities, which were not observed in this case. It is notorious, that the City of New Orleans enters into contracts for the lighting of her streets, whether by gas or oil.

The quotation from Judge Dillon rests upon a solitary decision, which is from this State, and which is referred to in supra in the opinion just read, to reinforce the text-writer. That decision was rendered in a case in which the claim made for work done on the streets was allowed, because.it formed part of the current expenses of the town and did not involve the necessity of giving out obligations beyond what the current expenses of the town may meet. 13 An. 430. No one disputes the correctness of this authority.

That which is denied, is that the lighting for which payment is now asked, was a current expense, which the current revenues of the City of Baton Rouge could meet. ■

In the absence of evidence showing that a contract had been entered into and provision made, as required by the charter, for payment of the supply, it was incumbent upon plaintiff as a condition precedent, sine qua non, to have shown that the current revenues of the town could have met that and its other expenditures likewise incurred. This has not been shown.

Emancipate municipal corporations from the legal exigencies and restraints which require that, before they can become liable for a debt, they must conform with certain formalities and provide for its payment, and all the barriers raised by law to prevent them from running into extravagance, spoliation and ruin, are at once destroyed.

I, therefore, dissent from the opinion of the majority and adhere to that originally pronounced.

Manning, J. I concur with the Chief Justice.


text:
    No. 8641.
    The State of Louisiana vs. Horace G. Blackman.
    The minutes of court do not contain proporiy the recital of service of the list of jurors on the prisoner, and therefore an objection, not that there was no service, but that the minutes do not shew it, is untenable. The sheriff’s return i« the place where such service is shown.
    All persons present aiding and abetting in the commission of a felony are principals, and. must he indicted as such. Any testimony therefore to shew guilt of the prisoner, whether that guilt consisted in shooting, or in being present aiding and abetting the shooting, is admissible.
    A mistrial and consequent discharge of the jury is not a bar to a second trial on the-same indictment. The prisoner was not legally put in jeopardy on the first trial. The discharge of the jury on the first trial was within the sound discretion of the court.
    APPEAL from the Eighth District Court, Parish of East Carroll. Delong, J.

      J. C. JSgan, Attorney General, for the State, Appellee:
    1» In felonies, those who are present, aiding, abetting and assisting in their commission, are principals, and liable to punishment as such. 34 An. 525.
    S. The discharge of the jury on failing to agree rests largely in the discretion of the Court. 7 An. 520.

      Chas. If. Pilcher for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for shooting one Beaman with a shotgun with intent to murder, was convicted and sentenced to five years hard labor.

He assigns as error, failure of the minutes of court to shew the presence of the Judge at the opening of court, and to shew that the defendant was served with the list of jurors.

The minutes shew the presence of the Judge, and are not expected to shew that the defendant was or was not served with the list of jurors. That would be shewn from the service itself if it was made'. If it was not made, it would appear from the defendant’s objection to go to trial until it was done, and if he went to trial without objection to the want of service, it would be too late to object for the first, time in this Court. His objection, however, is not that there was no service, but that the minutes do not shew it. The minutes of court do not eontain recitals of the services made by its executive officer.

There are three bills reserved to the admission of testimony of as many witnesses to shew that the prisoner was present aiding and abetting the shooting. All who are present aiding or abetting in the commission of a felony are principals, that'is, are considered in legal contemplation as doing the deed. State vs. White, 7 Ann. 531; State vs. Ellis, 12 Ann. 390. Therefore, if a statute makes the doing of a thing criminal, it includes persons present lending tlieir countenance and aid,. Bishop’s Stat. Crimes, § 135. A person present aiding or abetting, cannot be indicted as an accessory, but must be charged as principal. State vs. Desmond, 5 Ann. 398. The indictment of the defendant was as principal. Any testimony, therefore, was admissible to sliew the guilt of the accused, whether that guilt consisted in the shooting,, or in being present aiding and abetting.

* There were two trials, and on the first there was a motion to set aside the panel. The defendant calls our attention to this motion, but obviously it lias nothing to do with the present appeal. None of the incidents of the first trial are before us. There was also an application previous to that trial for a change of venue which was refused, but for the same reason we do not consider it. It was not renewed at the second trial.

The jury failed to agree on the first trial and were discharged. The prisoner pleads that trial as a bar to the second. The plea of once in jeopardy is not sustained by aformermistrial, the settled doctrine being that the-prisoner can avail himself of that plea only under such circumstances as would enable him to sustain the plea of autrefois acquit or convict. State vs. Brown, 9 Rob. 566; State vs. Hornsby, Ibid, 583; State vs. Ritchie, 3 Ann. 715.

But the prisoner alleges that the discharge of the jury was unnecessary and-arbitrary, because they had been out only half an hour. The statement in the record is that the jury, after, an absence of two or three hours, failed to agree, and were discharged,

• There has been prolonged controversy, and there is yet diversity of ruling upon the effect of. a discharge of the jury by direction of the Judge sitting at a criminal assise, and the courts are ranged in two classes: -1, where the discharge is held a. bar to all subsequent proceed - ings, unless it was because of some violent necessity, such as the death of a juror, or his insanity or illness, and the like; 2, where it is held that the discharge is a matter of. sound discretion of the court, and when exercised, that it presents no impediment to a second trial. 1 Whart. Crim. Law, §§ 574, 575, 580-6..

: This Court has consistently followed the latter ruling, which is that of the Supreme Court of the United States. U. S. vs. Perez, Wheaton, 579.

' It is impossible to define what is.a sound discretion. It varies .with and depends upon the circumstances of each particular case-. Certainly the power to discharge ought not to be lightly.used.. But the fight exists, and the chief security, for its faithful and conscientious exercise is the judicial character, atid the responsibilities-of. the judicial office. • 11 . I ¡' . , i '

We are not prepared to say it was not properly exercised in the present instance. The liaste is not at all commendable, and should not invite repetition. By some courts a discharge far more necessary than this would be held a release of the prisoner as complete as an acquittal. 1 Wliart. Crim. Law, 576-8. Although this ruling has never been followed in this State, and our jurisprudence was early settled in the contrary way, it does not follow that the inferior courts should not use the power to discharge with the greatest caution and circumspection.

Judgment affirmed.

Rehearing refused.


author: Todd, J.

text:
    No. 8241.
    Louisiana C. Ferguson vs. Dr. Alcée Chastant.
    ■■ Prescription does not run against an action to annul á judgment uofc signed; Nor can such judgment be the foundation for a plea of res'adjudicata. '
    ■ Where the executor of an estate and tutor of the-minor heir thereto files one account, as executor and tutor combined, and secures its approval by the minor emancipated on the day of, or day before its homologation, without affording the legal time and'oppdrtunity for aii examination of the vouchers, the homologation of the. account will be annulled. Where the Judge a quo, after decreeing the nullity of the order of homologation, declines to pass on the various alleged errors in the account, this Court cannot consider the same and proceed to fix the amount of the liability of the accountant. The District Judge should, however, have passed on all the issues raised by the pleadings, and relegated the plaintiff to a new proceeding. Judgment amended and case remanded. " . 1
    APPEAL from the Civil District Court for the' Parish of Orleans. Monroe, J.

      J. Q. A. Fellows for Plaintiff and Appellee.'

      Jerome Meunicr and Olías. F. Olaiborne for Defendant, and Appellant,
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 8821.
    Edgar Davenport et al. vs. N. King Knox et als.
    Where the nullity of a tax sale ie decreed and cnee remanded to ascertain amount of taxed paid by the evioted purchaser and value of improvements made by him, for which reimbursement is claimed by reconventlonal demand, and the case is again tried on this remaining issue, and a second appeal tulten, held, that this Court is without jurisdiction where the amount of ouch reconventlonal demand does not exceed 81,000.
    On the merits ¡ same as in preceding caso 8830.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Herron <§ Beale and (7. B. Katorot for Plaintiffs and Appellants.

      Knox <& haycock and Burgess & Burgess for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

This suit was instituted to annul a tax sale. The land sold at such sale was purchased by the defendants separately and in separate quantities.

The defendants filed separate answers, and in the event that the sale was annulled, claimed each the taxes paid and the value of the improvements respectively made on the land.

On appeal to this Court from a judgment in favor of the defendants, the judgment was reversed, the sale annulled, and the case remanded for the purpose, as expressed in the decree, “ of ascertaining the amount of taxes (not including costs and penalties) paid by each of the defendants respectively on the lots or parcels by' them purchased, due at the time of sale and subsequently, and the value of the improvements by them respectively made, the right to recover which said taxes and improvements is reserved to defendants.” 34 An. 409.

The case on being remanded on this issue resulted in a judgment awarding to the several defendants separately specific amounts for taxes paid and improvements, from which the plaintiffs have appealed.

There is a motion on the part of the appellees, Willis and Blnin, Bertrand and Scott, to dismiss the appeal, ou the ground that tho matter in dispute is less than $1,000.

By referring to the answers' of these parties, in which they separately demanded in recouvention, in the event of eviction, to be reimbursed for taxes and improvements as above stated, it appears that not one of them claimed as much as one thousand dollars. Such demand furnishes the test of our jurisdiction; and it is clear that that jurisdiction is wanting ratione material; and the appeal as to these parties must be dismissed. 33 An. 806; 28 An. 172; 18 An. 136.

This leaves the case before us standing only as to N. King Knox, whose reconventional demand exceeded the jurisdictional amount. The court a qua awarded him, besides the taxes paid, $415 for improvements. The appellants deny his right to either.

Although the sale was annulled for defects and irregularities in the proceedings relating thereto, yet inasmuch as it was ordered and made by competent authority, the purchase was, doubtless, bona fide on the part of this defendant, and he must be regarded as a possessor in good faith and entitled to the rights of such. He is, therefore, entitled to demand reimbursement for the amount of taxes to which the land was legally subject, and the payment of which enured to the benefit of the owner. Stafford vs. Twitchell, 33 An. 531. On this point the case of Shannon vs. Lane, 33 An. 489, is not authority. That was a case where the tax sale had not been annulled, but where a creditor of the owner had redeemed the land and sued him to recover the taxes he was compelled to pay. He is also entitled to value of useful improvements to the extent that the land is enhanced thereby. Ib.

The whole amount of taxes to which the portion of the land purchased by Knox was subject, both before and after the tax sale, estimated in accordance with the revenue laws in force during that time and upon the assessments shown in the record, was $71.22, instead of the amount ($131.80) allowed by the District Judge.

In regard to the improvements, ib is shown that during defendant’s possession of the land he caused to be built four or five houses, and to be cleared and fenced twenty-eight acres of land. Both the buildings and clearing and fencing enhanced the value of the land, and as useful improvements present equal claims for reimbursement, and there is no reason wliy a distinction should be made between the two, as was done by the Judge a quo. The Judge allowed too much for the building, and nothing for the other improvements. We have reviewed the testimony on this point, and reached the conclusion that the allowance made in the lower court for the buildings affords substantially a fair compensation for improvements of all kinds, and we will not disturb the judgment in this respect, nor allow the amendment asked for.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court, as between the plaintiffs and this defendant N. King Knox be amended, by reducing the amount allowed therein for taxes to seventy-one 22-100 dollars, ($71.22) and as thus amended it be affirmed, costs of appeal to be paid by defendant and appellee.

, By Manning, J. I think the defendant is entitled to be reimbursed the full amount of the taxes paid by him upon the property, and I know of no good reason why the ruling in Shannon vs. Lane shall not he extended to the facts here. Every owner of property owes taxes; and knows that he owes them, and if be neglects or refuses to pay them, and another does pay the government what its officers have assessed'and demanded, when the correctness of the amount has not been contested or looked into even by the tax-ower, he who has paid the treasury is entitled to be paid back in full, and I think the judgment is error in that particular.


author: ' Bermudez, C. J.

text:
    No. 8832.

      Alex Kuhn & Co. vs. Embry & Pilcher.
    The ajidavit taken in the alternative language of the law by a creditor claiming a privilege to obtain a sequestration, is good and sufficient. It is not always possible for a creditor to swear positively as to his debtor’s positive intentions, which may be changed at any moment, as his interest may suggest, for the accomplishment of liis purposes.
    Where the apprehensions or fears sworn to are shown to have been verified, the issuing and executing of the writ being lawful, can cause no'injury. The defendant in writ is then ■ 'without foundation to claim damages.
    Under the present Constitution, Art. 117, registry to preserve a privilege on movable prop* erty is unnecessary in the absence of legislation requiring it.
    Exceptions filed in the lower court, but not passed upon, are deemed abandoned and will 4not be considered on appeal.
    A judgment rendered in tolido against the members of a planting partnership is erroneous; They are liable jointly only.
    APPEAL from the Eighth District Court, Parish of East Carroll. * Felony, J.

      F. F. Farrar for Plaintiffs and Appellees.

      Chas. M. Flicker for Defendants and Appellants.
   The opinion of the Court was delivered by

' Bermudez, C. J.

The plaintiffs sue on a note of defendants given in settlement of part of the price of sale of fifteen mules. On claiming vendor’s privilege and making the oath that they fear and believe that the defendants will conceal, part with, or dispose of the mules during the pendency of the suit, they obtained a sequestration of the mules and prayed for judgment for the amount of the note with vendor’s privilege.

The defendants endeavored to have the seizure reduced, opposed the sequestration, alleging the untruth and insufficiency of the affidavit.

They subsequently answered and admitted their signature to the note. They charged unsoundness of the mules, the wrongful issue and execution of the sequestration, alleged damage to their reputation to the extent'of $2,000, and claimed attorney’s fees for $100. ¡ -

The plaintiffs have offered satisfactory evidence to show that their fears were well grounded. They established the sale of the identical mules by the defendants to third parties. The plaintiffs were authorized to take the oatli they did, in the very words of the law. A creditor, in such circumstances, is not always able to swear positively to facts, unless they have actually occurred to his knowledge. Where he lias occasion to apprehend harm and injury from his debtor, it is legitimate for him to swear in the alternative, for it is impossible for him to make oath as to what his debtor positively intends to do. 9 An. 119; 15 An. 462; 8 An. 366, 374, 381; 1 An. 230. Such intention may at any moment be changed and carried out in a different way, as interest may suggest.

The evidence clearly establishes that the note has for its consideration the mules sequestered and that it is secured by privilege. The registry made was unnecessary under the present Constitution, in the absence of any legislation requiring it. Art. 177.

The fact that the defendants sold the mules cannot be controverted. It is no doubt true that by the sale they did not intend to defraud the plaintiffs, but the fact of the sale of the mules, the existence of the privilege and the justified apprehensions, authorized the sequestration, which, having lawfully issued, could cause no damage.

There is no evidence of the unsoundness of the mules.

The case was tried by a jury, who rendered a verdict for the plaintiffs, which was carried out by a judgment under the prayer of the petition.

We see no error in the proceedings below and do not feel authorized' to grant damages for a frivolous appeal.

Judgment affirmed with costs.

On Rehearing.

The defendants complain that exceptions filed by them were not passed upon by this Court, and that, as they are planting partners, the judgment was erroneously rendered against them in solido.

The exceptions were not considered because they were not passed upon by the lower court. By not insisting upon action on them, and going to trial on the merits, the defendants are deemed as having abandoned them.

The error in the judgment had not been specially called to our attention, but it is so glaring, that the defendants are entitled to the relief sought.

It is, therefore, ordered and decreed that our previous decree be amended, so as to strike from the judgment appealed from the words in solido, and substitute thereto the word “jointly,” and appellees to pay costs of appeal; and that so amended it remain undisturbed.


author: Poché, J.

text:
    No. 8770.
    Henry Groebel & Co. vs. Lucien Ristroph et als.
    The alleged value of the property in dispute, oontained in a supplemental petition filed by plaintiff, will be the teat of the amount in disputo in the controversy, even when a larger amount had been alleged in tbe original petition.
    In oases arising sinoe tbe organization of the present Courts of Appeals, the Supreme Court has no authority to transfer to such tribunals oases which are not of a sulfioieut amount to vest jurisdiction in this Court.
    APPEAL from the Twenty-fourth District Court, Parish of St. Bernard. Livaudais, J.

      Geo. L. Bright and Beauregard <& Ohiapella for Plaintiffs and Appellants.

      Bayne & Denigre and W. D. Denigre for Defendants and Appellees.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiffs claimed the ownership of twenty-three mules and of some farming implements alleged to be in tbe illegal possession of the defendants, Ristropii and Denégre & Villeré, and prayed for the sequestration of the same, alleged to he worth $2,000. The sheriff returned that he had sequestered twelve mules and the implements.

In his answer, Ristroph recognized the legality of plaintiffs’ claim and title, and judgment was rendered against him, recognizing the title of plaintiffs to the property sequestered.

In their answer, Denégre & Villeré specially claimed the ownership of the twelve mules sequestered, and prayed accordingly.

Plaintiffs then filed a supplemental petition, reiterating the allegations of their original petition, and concluding with a prayer to be recognized as the lawful owners of the twelve mules in question, and in default of due delivery thereof, for judgment against Ristropii and Denegre & Villeré in the sum of one thousaud dollars, the value of the twelve mules in question, and this appeal is taken by them from a judgment against them.

Among other grounds of dismissal the defendants urge that, under the pleadings, it appears that the amount iu disputo does not exceed one thousand dollars; and from the foregoing statement of the pleadings and of the proceedings contained in the record, it is clear that the ground is well taken.

There is no appeal from the judgment in favor of plaintiffs against Ristroph, by which the title of plaintiffs to all the other property sequestered was recognized and finally settled.

The only issue thus left for adjudication was the ownership of the twelve mules sequestered, and claimed in their answer by Denegre & Yilleré. By plaintiffs’ own allegations it is shown that the value of the mules did not exceed one thousand dollars. Hence, it follows, that under the pleadings, the pecuniary amount involved in the controversy, as between the parties thereto, does not exceed one thousand dollars, and that we have no jurisdiction of the cause.

We note plaintiffs’ suggestion in their brief, that in case we should reach the foregoing conclusion, this appeal should not be dismissed, but that this case should be transferred to the Court of Appeals.

Such an order could be granted only in cases where the appeal had been taken previous to the organisation of the Circuit Courts of Appeals. But this appeal was taken as late as the 23d of December, .1882. And in such a case our power is restricted to maintaining or dismissing the appeal.

In this proceeding we can express no opinion as to the right of plaintiffs to bring an appeal to the Circuit Court of Appeals.

Let this appeal be dismissed at appellants’ costs.

Rehearing refused.


author: Fenner, J.

text:
    No. 8628.
    Wilkie & Turnbull vs. Albert Schultz.
    In absence of special authority, which did not exist in this case, it is not in the power of the master, in a foreign port, to release the charterer from the stipulations of his contract with the owner as evidenced by the charter party.
    The refusal of the charterer to comply with his contract, except on. condition of enforcement of a verbal alteration of the terms thereof, alleged to have been assented to by the master, dispenses with default. Under such state of facts, the master is not bound to hold tine vessel until the last day7 stipulated for demurrage, but may seek his load elsewhere, without forfeiting his right to damages under the contract.
    Judgment affirmed.
    APPEAL from the Fifth District; Court for the Parish of Orleans. Sogers, J,

      E. W. Huntington and 77. L. Eg four for Plaintiff and Appellee.

      8'mghton & Brmvtu: for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.


text:
    No. 8769.
    Henrietta Davidson vs. J. D. Houston, Tax Collector.
    Tlie power granted by Art. 154 of tbe Constitution to the legislature, to prescribe that judicial advertisements in certain designated cities and parishes shall be made “ in the French as well as in the English language,” passed to the legislature untrammelled by the restrictions contained in Art. 48, relative to local or special laws.
    Act 38 of 1880 is, therefore, not unconstitutional beoause of non-oompliance with the require* ments of Art. 48 of the Constitution.
    The decision of the District Court, as to the extent to which warrants, baby bonds and school certificates may be used in the payment of State taxes due prior to 1879, is strictly correot.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    ■ B. B. Forman for Plaintiff and Appellee.

      Blanc & Butler for Defendant and Appellant.

      BE. It. JDufour and Carleton Hunt for the “New Orleans Bee,” Interven or.

      Albert Voorhies, as Amicus curim.

   Tlie opinion of the Court was delivered by

Fenner, J.

The plaintiff sues to enjoin the sale of her property for State taxes of 1878 on two grounds, which will be considered separately.

I.

Tbe first ground is, that the sale is advertised in English only, and not in French, as required by Act No. 38 of 1880.

The defendant maintains the right to advertise in English only, and asserts the unconstitutionality of Act No.-38 of 1880, on the ground that it is a “ local or special law,” not passed in conformity with the requirements of Art. 48 of the Constitution of 1879.

The constitutionality of the Act is maintained on two grounds, viz : 1st, that the Act, even if local or special, is removed from the operation of Art. 48 by the express authority granted in Art. 154 of the Constitution ; 2d, that it is not a local or special law, within the intendment of the Constitution.

Art. 46 of the Constitution prohibited absolutely the passage of local or special laws upon certain enumerated subjects.

Art. 48 provided, that “ no local or special law shall be passed ou any subject not enumerated in Art. 46, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to tile introduction into the General Assembly of such bill, and in the same manner required by law for the advertisement of judicial sales.”

Art. 154 declares: The laws, public records, and the judicial and legislative written proceedings of the State shall be promulgated, preserved and conducted in the English language; but the General Assembly may provide for the publication of the laws in the French language and prescribe that judicial advertisements in certain designated cities and parishes shall also be made in that language.”

At the first session of the legislature, called under the Constitution, the Governor of the State, who had been the president of the constitutional convention, called attention to Art. 154 in his message, saying : “ Art. 154 provides that the General Assembly may determine whether the laws are to be published in the French language and may prescribe! the manner of such publication. The same Article enables the General Assembly to direct the publication of judicial advertisements in that language in certain designated cities and parishes. In portions of the State the French language is employed to so great an extent as to render the publication of laws and judicial advertisements in English only a constant and annoying inconvenience.”

Upon these suggestions, the Assembly passed Act 38, which is entitled : An Act to regulate the judicial advertisements in the French language, in the parish of Orleans, under the provisions of Article 154 of the Constitution.’1'1

Obviously, the executive and legislative departments were of opinion that the power expressly granted by Art, 154 passed to the legislature, untrammelled by the restrictive requirements of Art. 48.

We may not reverse this conclusion unless, in the language of Chief Justice Marshall, “ the opposition between the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher vs. Peck, 6 Cr. 87.

The language of another eminent Judge is also aptly quoted by counsel: “Before the Court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt.” Ex parte Colburn, 1 Cowen, 574.

. We have bestowed the greater reflection on this question, from the respect which we entertain for the learned District Judge who, in a characteristically able opinion, has pronounced the Act unconstitutional. We have not been able to reach the same conclusion.

It seems to us that the power expressly conferred by Art. 154, “ to prescribe that judicial advertisements in certain designated cities and parishes shall be made in the French language,” had effect to take that subject out of the operation of Article 48. The power was granted in evident appreciation of the fact, suggested in the subsequent message of the Governor, that in some portious of the State the French language is employed to so great an extent, that publication in English only might operate inconvenience and injustice. To enable the legis» lature to take cognizance of these exceptional cases and to obviate such inconvenience or injustice, this power was conferred. It was a legitimate subject of legislative consideration to determine whether legislation of this character was required in the public interest; and having reached the conclusion that it was so required, the exercise of the power became as much a duty as if it had been positively commanded by the Constitution. It. is impossible to suppose that the power to perform such duty should remain paralyzed until some private person at his own expense, should see fit to prepare and publish for thirty days a notice stating “ the substance of the contemplated law.” Even if some individual should conclude to act in the premises, non constat that the substance of the law contemplated by him would meet the legislative idea of the proper law required; and thus a power expressly granted, on motives of public policy, and without express subjection to the provisions of Art. 48, might be indefinitely held in suspense, however essential to the public weal the legislature might consider its exercise.

As before stated, we consider that when the legislature concluded that the public interest required the exercise of the power so expressly granted, its exercise became as much a duty as if it had beeu expressly commanded by the Constitution; and the language employed by us in a former case becomes strictly applicable: It was the duty of the General Assembly to adopt such legislation, and it could find no excuse for the non-performance of this duty iu the fact that nobody had seen fit to give the notice required by Article 48.” Taxpayers vs. City, 33 An. 568.

These views are powerfully fortified by the consideration that, had the mandate of the first phrase of Art. 154 stood alone, without the succeeding ones, the power of the legislature to prescribe the publication of judicial advertisements iu French, in designated cities and parishes, on compliance (conceding such legislation to be local or special,) with the requirements of Art. 48, would hardly be questionable. To hold, therefore, that the subsequent express grant of such power was subject to the same restriction, would stamp that grant as pure surplusage, a result which sound principles of interpretation always forbid.

These views are sufficient to sustain the constitutionality of Act 38, and render it unnecessary to determine whether it is a local or special law within the intendment of the Constitution.

II.

So far as the second ground is concerned, we cannot dispose of it more satisfactorily than, in the language (slightly condensed) of the District Judge:

“The next question to be determined is, what obligations are receivable for the taxes of 1878, and are such obligations receivable for the interest due on such taxes ?

“ The constitutional ordinance for the relief of delinquent taxpayers contains the following provisions:

“ 1. It remits all interest, costs and penalties, fees and charges upon taxes due prior to January 1st, 1879, on condition that said taxes should be paid before January 1, 1881, with 8 per cent, interest from January 1,1880 ; and further provides that, in case of the non-payment of such taxes before January 1st,-1881, the said interest, costs, penalties, etc., should be revived.

“2. That the taxes in question, with exception of the portion due to the interest and levee funds, should be payable in warrants of a certain character, or in certain baby bonds or certificates into which the warrants mentioned were convertible.

3. That proportion of the taxes due to the interest and levee funds is made payable in matured interest coupons of State bonds and warrants of the Levee Company respectively.

“ 4. Certain provisions of the ordinance apparently contemplate the retirement of the baby bonds and certificates above referred to.

“ Act 126 of 1880 provided, that certain certificates therein described and known as school certificates,’ shall be received for the taxes of 1879; and that when the baby bonds and certificates provided for by constitutional ordinance shall have been retired or provided for, the said school certificates should be receivable for all taxes and licenses due the State prior to 1879, and for all interest, penalties, costs, fees and charges thereon, except taxes due the interest and levee funds.’

“By Act 98 of 1882, (Sec. 15) all penalties attached to the taxes due prior to 1879 are remitted, and, in lieu thereof, the taxpayer is required to pay 8 per cent, interest upon such taxes from the date when they fell due. 1

“ This Act requires the tax collector to proceed with the seizure and sale of property, and provides that it may be sold for any of the warrants, bonds, or other obligations which, under the Constitution and laws, are made receivable for taxes, provided, however, that the cost for making the sales and the commission of the collector are required to be paid in cash. (Sec. 5.)

“ Under this legislation the taxes due by plaintiff have attached to them, as penalties, interest at 8 per cent, from the date when they became due, and sucli costs ns may have been legally incurred in seizing and advertising the property for sale.

“These costs are payable in cash. City vs. Jackson, 33 An, 1038.

“ The whole interest on all the taxes, as well as all the principal, except the interest and levee tax, are payable, either in the warrants or bonds pi’ovided for by the constitutional ordinance, or, (since it is admitted that the baby bonds and certificates referred to in that ordinance have been retired or provided for) in the certificates contemplated by Act 126 of 1882.”

These views of the District Judge seem to us irrefutable, and the objections of the defendant thereto untenable. They are:

1st. That the taxes of 1878 were not due prior to January 1st, 1879, a.nd, therefore, that the constitutional ordinance and Act 98 of 1882 have no application to them. In view of Sections 52 and 97 of Act 96 of 1877, we do not see how this contention can be supported.

2d. That the interest is payable in the same manner as the tax on which it accrues, and, therefore, that the interest on levee and interest taxes must be paid in cash. However forcible this claim might be on general principles, it must yield to the express terms, heretofore quoted, of the Act 126 of 1880.

The prayer of appellee for amendment of the judgment must, in some respects, be allowed.

It is, therefore, ordered, adjudged and decreed that so much of the judgment appealed from as condemns plaintiff to pay the costs of ad-' vertising in English only, and decides that advertisement in French is not legally necessary, be avoided and reversed} and that, as so' amended, said judgment be affirmed at costs of appellant in both Courts.

Manning,'J., concurs in the decree.

Rehearing refused.


author: Manning, J.. Poché, J.

text:
    No. 8053.
    Conrad Gross vs. Peter Herman.
    Where the allegations of neither party disclose that the sum in dispute exceeds one thousand dollars exclusive of interest, the Court "will dismiss the appeal ex propria motu.

    APPEAL from the Sixth District Court for the Parish of Orleans. Bightor, J.

      JB. H, McCaleb for Plaintiff and Appellee.

      John 8. Tully and F. Michinard for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Manning, J..

The plaintiff sues for the possession of four mules and harness, three floats, three tarpaulins and five skids, and for the annulment of his promise to sell them, aud for forty-two dollars and fifty cents as rent. The property was sequestered, and was afterwards delivered to the plaintiff on a bond of eight hundred dollars.

The highest value placed upon the property is three hundred and fifty-five dollars. After the institution of the suit, the defendant tendered the plaintiff three hundred dollars as the full value, and forty dollars for costs.

The promise to sell was on payment of thirteen hundred dollars, and the petition admits the payment of nine hundred aud seventy-five, so the amount due at the institution of the suit was much less than the sum warranting an appeal to this Court.

The answer alleges that credit was not given the defendant for twelve hundred dollars paid on account, and that the plaintiff cannot claim the property and the price paid on account. He made no exception to the action for want of tender of the price paid, nor does he pray that the sum paid be decreed to be due him, nor make any demand in reconvention.

Under none of the allegations of either party have we jurisdiction. The plaintiff notices that feature, but does not move to dismiss. We take cognisance of it exproprio motil, and accordingly

The appeal is dismissed.

On Rehearing.

Poché, J.

G-uided by the wise principle that the benefit of a doubt, in a question involving our jurisdiction over a cause should be given to the right of appeal, we reopened this case with a view to hear the appellant on the question of jurisdiction which he had not argued in his original brief.

A second examination of the pleadings has served to confirm our previous conclusion, that under the issues presented in this case, the real amount in dispute does not exceed one thousand dollars.

Appellant’s argument, that the object of the plaintiff in his suit was to cancel and rescind a promise to sell for a consideration of thirteen hundred dollars, is not sustained by the record.

Plaintiff distinctly avers, that of the movable effects which he placed in the possession of defendant under a promise to sell, all had been sold or otherwise disposed of by defendant, with the exception of four' mules and harness, three floats, etc., of the alleged value of three hundred and fifty-five dollars, and hence, he prayed to be restored to the possession of these enumerated movable effects, and his prayer for the cancellation of his original contract could and did refer only to those effects.

This issue was met by the defendant in a general denial, followed by an averment that he had not been credited with the full amount paid on account of the original agreement.

Hence, no judgment could be rendered under the pleadings which could affect either party in a sum exceeding three hundred and fifty-, five dollars, and the additional sum of forty-two dollars claimed for rent.

Our previous decree must, therefore, remain undisturbed.