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

l meddlof IN the DuSiACoo oAu upOA tuo PROP
,erfv. md. aGninDt tie will ard romonstfsnsa
If Giraud, the latter can not be permitted
70 hold the awning in dispute without
;ndamnifvinQ the constructor for thu
coat of his materials and the price of his
lahors. Mulligan was either q trespasser.
nosaessor in good faith or pOssessor IN
had faiti. l have already shown that "A
| mere trepasser without shadow Of claim
| to possesion,. and even though he con,
| stucted the awning against the will Of the
nronrietor, he can not lose his materials.
ppnd ; ia sntitled to payment for his labor.
Snnnose he was pOssessOr in bad faith
he would certainly be Unidentified undsr
the law. -. we
1Notre code ecarte Reimbursement cetta
ancienne ct unique fiction, d'apres laquele
Ia droit Roman dams Porigine pIesumait
nue le possesseur de mauvaise fol await
1onlu faire donation de ses trataux au pro.
prietaire du SOL Demolombe de la Distinc.
ton des Biens, Tome l. p. 63S
Thus, then, ia the possessor even in bad
faith. entitled to indemnity, and a forioyi
also the possesscr in good faith.
Rut the defendant invokes the certain
nrinciple of equity that private person can
not beNpermitted to impose on the owner
of the soil, without his act and against bis
will. any burdens or expenses which such
owner would not desire to incur. TIE court
mnst find solution of this case in combin.
ing and harmOnizing the two principles CT
rules of equity relied upon respectively by
the plaintiff and the defendant. Assuming
for the present that MullIgan had sponta-
neOusly and without authority acted for the
defendant, and even in spite of him. it is
necessary to inquire if the act of Mulligan
had been useful to Giraud; it the latter has
profited by that act: if his resources would
hermit hi i'm to construct the shed in aues-
fion: if il is probable that he himself would
have caused the work to be done; if the
awning was useful to him In bis business or
condition, does the expense incurred consti-
tute a necessary or useful expense. If
these questions be answered ahirmatively
they would so modify the rule invoked by
the defendant as to remove its apparent or
ostensible antagOnisn to the equitable rule
invoked by the plaintiff
L But the evidence warrants me IN saying
that Mr. Mulligan was neither negotiOrum
1estOr. an intermeddler nor an actor in bad
faith. He is responsible, to be sure, for the
acts of the workmen who acted for him,
but his motives were not their motives He
designed to carry out in good faith his con-
tract with Nine. Avet, but he was mistaken
as to the true extent OF that contract, and
he certainly never intended to trespass on
the property of defendant, or to NEEDLE in
his affairs. The employees of Mnlligan had
no other motive than to obey his orders,
and this obedience entailed disobedienee
of the prohibition OF Giraud to tear down
the old awning.
am Of opinion that the awning is useful
to the defendant; that he has profited by
it's construction; that it was such an ina.
provement as was proper for his business
condition and resources; that, in all prob.
ability, he himself would soon be compelled
to put up an awning Of this kind, to replace
the old and decayed one heretofore exist
ing; that the cost of construction and of
materials herein claimed are reasonable;
that the attempt of the defendant to hold the
awning, without indemnifcation, is an at
tempt to enrich himself at Mulligan's ex.
pense, contrary TO law and equity.
l am OF opinion that Mulligan unwittingly
caused his mechanics to commit trespass
on the defendant, when the old awning was
torn down, and the present one was built in
lieu thereof; that the redress of tort of
that kind is provided for by article sos,
Civil Code; that under no law of this State,
Or under any principle of equity can the
action of the defendant therein be justified;
ne can not be permitted virtually to confs-
cate the property of fellow citizen, and
avail himself OF the unreQuited labor of
another.
For these reasons let there be Judgment
for plaintiff with costs of suit.
Fifth District Court.
State ex. rel. Mary Coddy VS.. Matthew
Jacobs ct ux.-Writ Of habeas corpus made
absolute.
Sixth District Court.
The following petition has been fled:
George G. Wolf & Levi VS. McKiliop &
alleges the establish
nent OF a lucrative and solvent businessin
New orleans, with large sales and hand
hot
,redit in the United States and Europe;
hat in November, 1873, they discovered
umOrs affecting their credit; that in con-
equence OF these IumOrs they received
many letters OF inquiry; meetings of their
reditors We're held and suits were instituted
galnst them :; that they have met all their
Dilgauons and have large surplus of
Issets; that they discovered that dispatches
lau Deen sent to some of their creditors in
We" 1ork OF the most alarming character
Is TO petitioners solvency, signed James
ones-a mere sobriquet-as NO such person
vas known TO them or in this business COM
1unlty; that in their November report de-
endants published the following:
George u. Wolf q Levi, New Orleans,
4ou,slana;- Wolf has imported one or two
'rothers; mas endeavOred to establish other
torres With purpose of stocking them
rom his own store. They are living in an
ng credit IN st. Louis and other cities.
lnlngs are not looking right. and would
ot recommend credit.
Deiendants are alleged to have branches
cues where plaintiffs buy goods; that
ne III furious rumors circulated concerning
etloioners nave been strengthened and con-
= Heu oy said report, which is false and
belOus. and published maliciousiv To in.
lre their credit and business, and DESTROY
az the confidence of their creditors; where
ore petitioners claim damages OF 500, 900.
ma pray for judgment against John Nc,
Illlop d Co.. the resident representatives
defendants in this city.
Judge Saucier delivered the following
plnion on Thursday:
Marie Louise Remv va. John D.vsor
LIS l.. T. Commagere, Gative testamentarv
xecutrlx, VS.. same.-The plaintiffs in the
oove cases caused to be seized and sold
nder execution certain pieces of real estate
e!onglng to the defendant, John Dawson.
Mis-. Dawson, wife of the defendant
ierefore obtained from this court an order
cne snerif to retain in his hands. subject
!, lurthef orders, the proceeds of sale. she
isgihg That "her general hypothecation"
!. .ne properly Sold resulting from the reg
Try OF the marriage contract between her.
~ and her husband, is of a higher class
aaa anterior rank than those of the plain.
Ise proof Of the registry is contained in
le following certificate:
me undersigned, deputy recorder of
ortgages tor this parish and city of New
rleahs, DO hereby certify that the forego.
: marriage contract was duly recorded in
Us nna once on the fifth March, 1885, in book
2Hatloa No. a, page 6.
New Orleans. April "a, 1873.
T,o Z. DARCANTEL, Notary.
ne question presented is vhathar tb;s
ird persons. '' 'no piaintin''
: me constitution provides, article Is8. for