New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-12-07
COURT RECORD.
Supreme Court.

| clet.-The tran scrlpl OF tno oPPooA ~
case was filed this day Inc case - sar
nitted on the following agreed s'a'0"0 ..
of facts .,,o Az
That all the warrants Issued by. the Az
ditor of Public Accounts on the pa.
Treasurer. alleged by plaintiff in his petl'io
in tbis case. we're offered in evidence, an
that they were of the character alleged II
nlaiptiffs petition. and that payment OF w
same had been demanded Of the defendant
State Treasurer, as alleged IN the pe'i'i'
in this case.
Counsel have agreed to submit withou
First District Court.
| q DEPgTY SHERIFF.
M. A. Mcdowell was presented to tn
court by Sheriff l. w. Patton and sworH
in as deputy sheriff.
State VS.. George Dams, assault and oat
tery. one dav in Parish Prison.
State VS.. Andrew Dowle, assault anu Dat
terry, one day in Parish Prison. ,
| State VS.. Joseph Anderson, assault ant
battery, one day in Parish PRISON.
| State VS.. Thomas +. Taylor. assault ano
battery, one day in Parish Prison.
State VS.. Joe May, alias Neil, murder
! pleaded guilty of manslaughter; sentenced
| to five years in Pententiary.
| state VS.. Al6Aduuti w AitoA'
ter, eighteen months in Penitentiary.
| NEW TRIAL GRANTED.
| State VS.. Patrick McGuin, assault and
| battery.
| VERDICT.
State VS.. Rosetta alias Mrs. Etienne, as
| sault and battery. Not guilty.
on TRIAL.
State VS.. Thomas and Mrs. Malloy, know.
ingly receiving ste len goods.
second District Court.
SUGGESTIONS OF Bridget Reeves, Prosper
Rdeau and Mrs. Eugman were opened.
Fourth District Court.
The following important decision was
rendered yesterday:
Thomas Mulligan vs.. Antoine Giraud.-
Madam Avet, who owns store on Peters
street, employed the plaintiff to remove an
old awning from the front Of her store and
erect new awning in its stead. The store
adioins two other stores, owned respectively
by one Blanchard and the defendant Giraud.
The old awning covered alike the front OF
the three stores referred to. Mulligan, be-
leving the three stores to be the property of
his employer, and the awning in front OF
them to be the work he engaged to perform,
and being about to leave the city on bust.
ness, directed his journeymen carpenters to
take down the whole of the old awning and
replace it by a new one. When Mulligan's
employees began to tear down the awning
they we're confronted by Giraud, who in
formed them that the awning was on his
property, and he forbade them to tear it
down or NEEDLE with it in any manner.
The carpenters having disregarded his in
structions, his son repeated to them the
prohibition given by his father, but without
effect. They took away the old awning and
constructed a new one in it's place.
The evidence for the plaintiff shows that
the old awning was worthless, being rotten
an d dangerous to persons passing under it.
Mulligan afterward addressed a letter to
Giraud, in which he asked that he be per-
United to take down the tin and wood work
OF the new awning, put on Giraud's store
through mistake. and offering to put the
same in better condition than it was in be-
fore the old awning was taken away. The
request of Mulligan was refused; whereupon
he made an amicabie dem and for the value
of the new awning This demand was also
refused. and plaintiff thereafter instituted
this action. The work is shown to be worth
the amount claimed be- plaintiff.
The defendant testifes that the old avn.
ing answered all the purposes of new one,
and that the new awning Was neither neces-
sary nor useful. and its construction has
not enhanced the value of the property at
all. On this point no proof was offered by
the plaintiff
Article sos, Revised Civil Code, identical
with article 555, Code Napoleon, provides
that when plantations, constructions and
works have been made by third
person, and with such persons own
materials, the owner of the soil
has right to keep them, or compel the
person to take them away, or demolish the
same. 1t the owner requires the demol-
ton of such works, they shall be demol-
ished at tie expense of the person who
erected them, without any compensation:
such person may even be sentenced to pay
damages, II the case require it, for the in
jury which the owner OF the soil may have
sustained. II the owner keeps the works,
he owes to the owner of the materials moth
ing but the reimbursement of their value
aud OF the price OF workmanship, without
any regard to the greater or less value
which the soil may have acquired thereby.
Il was urged by defendants counsel, that
the above article does not apply to this case,
because that article applies only to ae,y
'corhs erected on the soil; not merely to i'm
provements or changes such as this, which
can not be easily removed, and which are
fastened to those pre-existing, and erected
by the pOssessor upon the immovable; that
IL applies only to cases where constructions
are put on the soil by one IN actual posses
sion, whether in good or bad faith, |
and made for himself in the land |
of another; that the case is governed by |
the Law relative TO quasi contracts; that the |
equitable rule, that no one can be allowed |
to enrich himself at the expense of another. |
has never been applied to a case like this, |
where the plaintiff committed an illegal act, |
and executed the work, and incurred the |
expense, Notwithstanding the formal pro-
hibition of the proprietor. 1t is true that |
the text OF article 500 appears to contem-
plate cases in which the works have been |
constructed by party in actual possession,
and with materials belonging to him. but |
by an identity Of motives. it must be equal
~ applied to case in which the work
might have been constructed by the person
IN possession, with materials not belonging
to himself. The relations between the
proprietor of the soil and the constructor of
the works remain, thon, the same, provided
The latter has satisfied the personal demands
Of tn. owner OF the materials In the case IN
which Inc land Is IN possession of a person
who is not the owner, and the works are
constructed by another person not IN pos
session, as, III effect, the possessor remains |
/ stranger to those constructions; it is |
between the proprietor of the soil and
he constructor that the issue must take
place. The foregoing hypothesis is very
are, as it seldom happens that an outsider
constructs improvements prOprio n0ntine on |
property which he does Dot possess.
On the question whether the 7aegoti0,,tm
festo1 could recover his expense of services
Ind his advances, when he has rendered
hose services and made those advances
fter and in spite OF formal prohibition
made to him by tbs proprietor of the soil.
here was a diversity of opinion among the
toman and early French jurisconsults.
'ome of them held that the action neqotioy..
IN gestorun., or, at least, an equitable &C.
ION based on the utility Of the work done,
ction of any kind. The opinion of the