E. Imbeaux Co. v. Severt

9 La. Ann. 124

• Court: Supreme Court of Louisiana
• Decided: February 15, 1854
• Status: Published

Opinion

Vookuies, J.

The defendant is appellant from a judgment rendered against him, in favor of the plaintiffs, on the verdict of a jury, for damages resulting from a quasi-offence.

Tho facts are briefly these : The plaintiffs were owners of a certain number of beeves, in possession of an agent in the parish of Iberville, to be shipped to New Orleans. Fifteen of tho beeves having escaped from the enclosure, in which they were kept, were taken up as strays by the appellant under an ordinance of the police jury of said parish; and while in his possession, were claimed by the plaintiffs, whose title to the same was undisputed. But the appellant refused to give up said beeves, unless the plaintiffs paid him the remuneration which he claimed under the said ordinance. On the refusal of the plaintiffs to do so, the appellant delivered said beeves to a justice of the peace, to be sold as strays, at auction, for cash, which was accordingly done, and the net proceeds of sale placed in the parish treasury, subject to the order of the proprietors, for the period of one year.

The only point submitted to us by the appellants, arises out of the charge of the Judge to the jury, as to the construction put on said parish ordinance. The appellant excepted to the charge so far as it related to, or might come under the 17th Article of said ordinance. In order to understand the objection fully, it is proper to state that the ordinance contains two Articles on the same subject; the 17th obviously applies to cases where the proprietors are absent or unknown, and is as follows, to wit:

“Art. 17 th. Every person shall have the light to arrest and take up all cattle or animals running at large, without mark or brand of any person residing in the parish, and to take saidanimals to a Justice of the Peace, who shall have them sold at auction for cash, after thirty days’ advertisements for horses, and fifteen days for horned cattle. The taker shall have the right to one dollar for the prize of a horse, and fifty cents for the prize of a horned animal, and also twelve .and a half cents per day for feeding and keeping, for each head of said animals; all costs deducted ; the remainder of the amount of such sale shall be placed in the treasury of the parish, there to remain at the disposal of the proprietor, during one year and one day.”

The other Article is in these words: “Every inhabitant, proprietor of land in the parish, is authorized to arrest all wild and mischievous animals, branded or not branded, and to give notice of the same to the proprietor (if known), who shall pay one dollar for the prize; and if the proprietor neglects to pay the said dollar, and to take away said animals in the twenty-four hours after being notified, said animals shall then be sold by a Justice of the Peace, after notice in writing during three days: said notice to be posted up in two public places in the parish, at the expense of the proprietor. If the proprietor is not known, the person who shall have taken up such animals, shall keep them for himself.”

The averment in the appellant’s answer, is, that he arrested and took up fifteen stray and wild, and mischievous animals, and is evidently framed on this Article. We do not think the Judge a quo erred in charging the jury, that the appellant had a right to demand the remuneration prize only on proving to their satisfaction that the animals were wild and mischievous. But it appears that the appellant shifted his position, and relied on the other Article on this branch of the case; the Judge instructed the jury, and, we think, correctly, “ that a stray is an animal found in an unusual place for such an animal; or an animal that has roved for some time in a certain place, whose owner is unknown “ that the defendant had no right to retain possession of the property .until the damages and charges were paid, no person having a right to take the law in his own hands; that if the appellant was entitled to the ‘ prize’ for taking up the beeves, or so much per head for taking them up, and to damages committed by them, ho had a direct action for the amount; and that the possession of the defendant, from the time he became aware of the real owner, was ¡ilegal, and he became responsible for any damages accruing from such possession.” Moreover, if the appellant had the right to retain the beeves until the payment of the privilege asserted by him, why did he cause them to be sold as strays at public auction, for cash ? A privilege giving a creditor the right to retain the property of his debtor, is more properly a right of pledge. The inn-keeper’s privilege is so considered, and yet he has not the right to sell the property retained by him, of his own authority, but must apply to a tribunal to have his debt ascertained, and the property seized and sold for the payment of it. C. 0. 3200, 3203. It is likewise so in relation to pledge. C. 0. 3133. We are not aware that the present case forms an exception to that rule.

On the whole, we are of opinion that the verdict of the jury is not so mani-festlyr erroneous, as to require its reversal. It is proper to add that the defendant, in his answer, has set up no claim of quantum meruit for what trouble and expense he may have incurred in taking care of the beeves until they were called for.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.