Olivier v. Cannon

18 La. 474

Opinion

Martin, J.

delivered the opinion of the court.

The defendant is appellant from a judgment by default, on a charge of his having tortiously taken and detained a slave, horse and dray, belonging to the plaintiff. He assigns as error apparent on the face of the record, that the damages claimed were assessed by the court without the intervention of a jury.

In actions of tort, which from the nature of the demand, damages are to be assessed, a jury must be summoned to find the same. The court alone cannot assess damages in such cases.

It appears to us that this assignment 'of error must prevail. The action is instituted for a tort, and the Code of Practice requires, “that whenever from the nature of the demand, damages are to be assessed, the court will -direct a jury to be summoned to find the same, in the sarnie manner as if the defendant had answered.” — ^?’#. 313,

It is therefore ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, so far as relates to the question of damages; — and that the case be remanded for further proceedings according,to law :■— but in all other respects affirmed; — the' plaintiff and appellee paying the costs of the appeal.