State ex rel. Mrs. Sarah Richardson v. Judge of the Fourteenth Judicial District Court. court dissolved the injunction without damages, and the relator sought to take a suspensive appeal from the judgment, tendering a bond sufficient for costs and for damages for frivolous appeal. The court, however, refused to allow a suspensive appeal, unless the relator would furnish bond for one-half over and above the amount of the mortgage debt for which the order of seizure and sale issued.

The question is, was the relator bound to furnish the bond required by the judge?

As no appeal was sought from the order of seizure and sale, no bond was necessary to stay the execution thereof-that had already been suspended by the injunction. The question is what bond is necessary to suspend the judgment dissolving the injunction ?

That was the precise question presented in the case of State, ex rel. Stackhouse, v. Judge of Fifth District Court (21 An. 152). And there, after examining the authorities, this court held that a bond for one-half over and above the amount of the judgment dissolving the injunction will be sufficient for a suspensive appeal. This is all that is required by article 575 Code of Practice.

The bond tendered by the relator, in my opinion, was ample; and the judge had no right to require a bond for one-half over and above the amount of the order of seizure and sale. But, it is urged, that the injunction was obtained under articles 739 and 740 Code of Practice, without bond, and that if the relator gets a suspensive appeal there will be no security for the amount of the executory process injoined. To this the reply is, the injunction issued according to law, there being no question that the relator complied with the requirement of articles 739, 740. If the law permits an injunction of executory process in certain cases without bond, the judge has no right to defeat the law, because, in his opinion, there should be some security for the mortgage creditor pending the litigation of the injunction suit.

If the law-giver had intended additional security to be given to maintain the injunction granted under articles 739, 740, during a protracted litigation arising from an appeal having been taken from the judgment dissolving the injunction, or arising from any other cause, a provision to that effect would have been inserted in the law.

In the absence of any such provision limiting the right conferred by articles 739 and 740 C. P., I am of the opinion that the suspensive appeal sought by the relator must be granted pursuant to article 575 C. P., which only requires bond for one-half over and above the amount of the judgment dissolving the injunction. Such a bond has been tendered by the relator. But the judge a quo says: no, the amount of the bond is not to be measured, in this case, by the amount of the judgment in the injunction suit which you seek to appeal from, but the amount of the bond must be measured by the amount of another judgment or order of seizure and sale staid by the injunction.

State ex rel. Mrs. Sarah Richardson v. Judge of the Fourteenth Judicial District Court.

Now, I maintain that this ruling violates the express provisions of article 575 and the well settled adjudications of this Court, to the effect that, in determining the amount of a bond for a suspensive appeal, the amount of the judgment sought to be appealed from alone must be considered.

The effect of a suspensive appeal from the judgment dissolving the injunction in this case, would be to leave the writ granted under articles 739 and 740 in full force until the final disposition of the case in this Court. Now, whether such an appeal will subject the mortgage creditor to loss unless a bond be given to secure the debt, or whatever hardship may occur to him on account thereof, is a question not to be considered by the Court. The only proper view of the subject is, the law allows the injunction without bond, and the law allows a suspensive appeal with a bond for one-half over and above the amount of the judgment dissolving the injunction. If the enforcement of the law, in the case under consideration, produces hardship or loss to the mortgage creditor, the court must, nevertheless, enforce the law. We have no right to deny the relator a suspensive appeal, in view of the bond which she tenders conformably to article 575 C. P.

The right to an injunction and the right to an appeal are given by the law upon the conditions therein required. The relator in this case has complied with the law, and, in my judgment, is entitled to a suspensive appeal. I therefore dissent in this case.

No. 4773.

W. J. W. WOODRUFF v. WILLIAM S. LOBDELL.

The exceptions to the proceedings in this case are substantially similar to those set up in the case of Morgan v. Kennard. 25 An. p. 238, and which this court held to be untenable. See also Bonner v. Lynch, 25 An. p.

A

PPEAL from the Fifth Judicial District Court, parish of West Baton Rouge. Cole, J. G. A. Griffith, R. W. Knickerbocker and Stafford, Belden & Foley, for plaintiff and appellee. H. M. Favrot, Barrow &Pope, for defendant and appellant.

LUDELING C. J. This is a suit for the office of Parish Judge of West Baton Rouge, under act No. 39, of the General Assembly of 1873. The defendant urged several exceptions to the proceedings, which were overruled by the judge a quo. They were substantially similar to those set up in the case of Morgan v. Kennard, and which this court held to be untenable.

The defendant then filed a lengthy and verbose answer, whereupon the plaintiff moved to strike out portions of the answer which referred to and were based upon an election said to have been holden in No

Woodruff v. Lobdell.

vember, 1872, on the ground that in a suit like this no inquiry could be had concerning the election. Without deciding whether it be the better practice to move to strike out any irrelevant matter in an answer, or to object to evidence on the subject when offered, about which no question was made in this case, it is now well settled that the judge a quo ruled correctly in refusing an inquiry in regard to the election. See Bonner v. Lynch. He also ruled correctly in refusing a jury trial. Morgan v. Kennard. 25 An. 238.

It appears that the plaintiff has been duly commissioned by Governor W. Pitt Kellogg, and that he has qualified according to law. The defendant has offered no commission to the office whatever. The judgment of the District Judge in favor of the plaintiff is manifestly correct.

It is therefore ordered that the judgment be affirmed with costs of appeal.

WYLY, J., dissenting. This is a proceeding by rule, under act No. 39, of the statutes of 1873, for the office of parish judge.

I think the suit should be dismissed, because the law under which it is brought is unconstitutional. My reasons for this conclusion were expressed in my dissenting opinions in Morgan v. Kennard, 25 An. 238, and Hughes v. Pitkin, 25 An. 127.

But laying out of view the unconstitutionality of the act, I still think this demand should be rejected, because the suit is not authorized by the statute under which it was brought. Act No. 39 is not a general law, or a law providing a remedy generally for cases where there is a controversy for office. It is a statute authorizing a summary proceeding by rule in the particular cases mentioned in the act, and none others. It authorizes a proceeding by rule where there is a dispute or controversy for a judicial office only, in the following cases: First-Where the plaintiff was appointed judge by the Governor, confirmed by the Senate, and commissioned.

Second-Where he has been elected, and commissioned in pursuance of said election.

In these two cases only the statute declares that the "commission shall be prima facie proof of the right of such person to hold and exercise such office and such person, so commissioned, shall have the right to proceed by rule before any court of competent jurisdiction to have himself declared to be entitled to such office, and to be inducted therein." Sections 1 and 2, of act No. 39, acts 1873.

Woodruff does not pretend to have been commissioned in pursuance of an election. On the contrary, he alleges that he was appointed and commissioned by the Governor. He was not, however, confirmed by the Senate, the Legislature having adjourned before he was appointed.

Woodruff v. Lobdell.

Without legislating, this court can not declare the plaintiff entitled to the benefit of the act under which he sues, because it does not embrace his case. The law requires an appointment, a commission, and a confirmation of the appointment by the Senate. The plaintiff does not pretend that the Senate ever confirmed his appointment. He therefore has no more right to proceed under act No. 39 than any other contestant for office. His remedy is under the intrusion law. I dissent.

No. 3556.

Q. A. THOMAS v. THE CITY OF NEW ORLEANS.

The plaintiff in this case is bound by the modified contract to which he gave his assent, and by his own interpretation of it.

The city is not in default, and consequently not liable in damages.

PPEAL from the Fifth District Court, parish of Orleans. Cooley, J. Jury trial. Hornor & Benedict, for plaintiff and appellee. George S. Lacey, City Attorney, for defendant and appellant.

TALIAFERRO, J. The plaintiff's demand against the city is made up of alleged losses incurred by him in the nature of damages arising, as he avers, from the failure on the part of the defendant to comply, on its part, with a contract entered into with him to furnish a large quantity of shells to be used on the public streets of the city. He avers loss to a large amount in the discount of certain certificates of indebtedness received by him in part payment of portions of the quantity of shells delivered by him, the defendant, as he avers, being bound to make payment in money, which it failed to do. He alleges loss to the amount of $1120 on seven thousand barrels of shells brought to New Orleans in pursuance of his contract with the city, which it refused to take, compelling the plaintiff thereby to sell them at private sale. He claims, besides, $4100 for loss sustained from various sums expended in the purchase of suitable boats in which to transport the shells through Harvey's Canal, and for divers other appliances, which he alleges were necessary for him to obtain in order to enable him to comply with his contract to furnish one hundred and fifty thousand barrels of shells. The boats and the various implements necessary for the works, houses built at the shell banks for the accommodation of his laborers, a large supply of ropes, and many other necessary things in the prosecution of so large an engagement, he alleges, became valueless by the default of the city to comply with its contract; and, in addition, he estimates a large loss in profits he would have realized had he gone on to complete his undertaking, which he alleges he was willing and able to perform.

The case was tried before a jury. A verdict was rendered in the

Thomas v. The City of New Orleans.

plaintiff's favor for $14,298 04, with interest at five per cent. from the twelfth June, 1871.

Judgment being entered for that sum, the defendant has appealed. Proposals were made, in the usual manner, to persons inclined to enter into a contract for furnishing the city with one hundred and fifty thousand barrels of shells, and bids were invited. The plaintiff's bid turned out to be the lowest. By the proposals, it was stated that the city reserved the right to reject any and all bids. On the twenty-sixth of July, 1870, West, Administrator of Improvements, in his report, suggested that Thomas' bid be accepted for fifty thousand barrels of shells, with reservation on the part of the city to accept or reject, within sixty days, the remaining one hundred thousand barrels. The city, through its proper agents, on the twentyeighth July, accepted the bid in conformity with the Administrator's report. In conformity with this report and acceptance, the contract was entered into on the twenty-ninth of July, by the Mayor and Thomas, by notarial act.

It does not appear that any formal acceptance or rejection of the remaining one hundred thousand barrels was ever made. We are not prepared to infer from this fact that the city was bound to extend the contract beyond the fifty thousand barrels. The fact that the city, having first proposed for one hundred and fifty thousand barrels and accepting a contract for only fifty thousand barrels, the inference, we think, is reasonable that the city, by its silence, intended to reject the contract as to the surplus. At all events, the conclusion seems as strong as would be the opposite one, that the failure to reject implied an intention to accept. If it were merely a matter of doubt, te construction should be in favor of the city.

There is a large amount of oral testimony offered to show the damages alleged to have been sustained by the plaintiff. An impression, it seems, is aimed to be made, both by the tenor of the plaintiff's own testimony and by his counsel's brief, that the plaintiff was compelled by the rigid course alleged to have been pursued against the plaintiff by a powerful corporation, to accept, through his personal necessities, the paper of the city instead of money, as the plaintiff says, the contract calls for. The evidence does not induce us to think there was any failure to comply with the contract on the part of the city. We think it is fairly to be inferred that the plaintiff was informed that cash in hand was not to be expected. The plaintiff on the nineteenth of July, 1870, ten days before the contract was signed before the notary, wrote to the Administrator of Improvements as follows:

"To J. R. West, Administrator of Improvements-Sir: I hereby agree to accept in payment for one hundred and fifty thousand barrels of shells to be delivered to the city of New Orleans, as per acceptance