in the proper state court a proceeding by quo waN'anto, in which the court decreed, as the answer alleges, that the city of De Soto has never existed. This decree is set up as an absolute defense and bar to the plaintiff's recovery; as showing there was never any corporate authority to issue these bonds. But it does not show this: (1) Because the decree dissolving the city organization has no tendency to show that the town of De Soto, which was organized and issued its bonds 10 years before,·was not a valid organization; (2) because these bondholders were no party to this proceedinz; (3) because, if the city organization of 1877 was absolutely void, the town of De Sotoremained, and the city organization now sued, which was created by order of the county court after the dissolution of the first city organization by the decree in quo warranto, is the legitimate successor of the town of De Soto which issued the bonds, being composed of the same trustees and the same people, and is only a change in the name of the corporation and in its mode of government. Broughton v. Pensacola, 93 U. S.266. As this was the only defense made by the plea, the motion for a new trial is overruled, and judgment is to be entered for plaintiff.
(Oircuit Oourt, E. D. Loui8iana.
LBAslil IN LoUISIANA LAW.
The lessee of a sugar plantation, which. without any fault on the part of such lessee, was overtlowed by the 1t1ississippi river to the depth of several feet, entirely destroying the sugar-cane, filling the ditches, and otherwise rendering it unfit for use as a sugar plantation, brought suit to annul the lease. Held that, under article 2699 of the Civil Code of Louisiana, the action would lie.
On Exception of No Cause of Action. (General demurrer.) Oharles Louque, for plaintiff. Geo. H. Braughn, Ohas. F. Buck, and Max Dinklespeil, for defend. ant. PARDEE, J. The petitioner alleges that in October, 1883, he leased from the defendant, for a term of five years, a certain sugar plantation, with the growing cane then standing, at a yearly rent of $5,000 per. annum, for which he gave five promissory notes, due, respectively, in 1883, 1884, 1885, 1886, and 1887, the first one of which has been paid; that during the high water of 1884, the levees in the neighborhood of the said leased plantation, protecting the same from overflow, gave way, and, without any fault of petitioner, the water of,
Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
the Mississippi river completely covered said plantation to the depth of several feet, and entirely destroyed thEl sugat-cane, filll;ldthe draining ditches, and did other damage to said plantatioJl,which it is unnecessary to enumerate, so that it ceased to be fit for the purpose for which it was leased; that petitioner's only motIva in. leasing said sugar plantation and growing crop of sugar-cane was to raise and produce sugar; that petitioner is not bound to replace the property with its growing crop· of sugar-cane; that he ha,s demanded of the defendant to replace the sugar-cane leased, which has. ·been refused; and that refusal of the lessor "to maintain the thing. in a condition such as to serve for the use forwbich it is hired" annulled the lease; and that the property leased has been totally destroyed as a sugar plantation. The prayer of the petitioner is for the annullment of the lease and the return of the unpaid rent notes. The exception of the defendant raises the question whether, on the facts so stated and pleaded, the petitioner is entitled to relief. If during the lease the thing be totally destroyed by a.n unforeseen event, or if it betaken for a purpose of public utility, the lease is at an end. If it be only de-. stroyed in part, the lessee may either demand a diminution of the price or a revocation of the lease. In neither case has he claim for. damages. Rev. Civil Code La. art. 2697. If, without any fault of the lessor, the thing cease to be .fit forthe purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls, shall interdept the light of a house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity. rd. art. 2699. The lease ceases, of course, at the expiration of the time agreed on. It is also dissolved by the loss of the thing leased. rd. arts. 2727,2728. Under these articles of the Civil Code, the plaintiff contends, as he leased a sugar plantation, to be carried on and maintained as such, that when, without his fault, the growing cane destroyed, the draining ditches are filled up, and the plantation ceases to be fit for, and is totally destroyed as, a sugar plantation, he is entitled to the annulment of the lease. To defeat this view, the defendant relies upon article 2743 of the Revised Civil Code, which provides for the abatement of rent of predial estates when a crop bas been destroyed by unforeseen and extraordinary accidents. Under this article of the Code, the supreme court of the state has decided that the overflow of the Mississippi river is of such frequent occurrence that it cannot be considered an unforeseen event, and that a crevasse itself cannot be considered as an extraordinary accident. See Vinson v. Graves. 16 La. Ann. 162, and Jackson v. Michie, 33 La. Ann. 728. These decisions may cut off petitioner from relief under article 2697; but r do not think they ought to affect his right under article 2699, which says nothing of onforeseen events or extraordinary accidents, but gives the right to a lessee to an annulment. of the lease, if the leased thing ceases to be fit for the purpose for which it was leased,
and under article 2728, which provides for the dissolution of the lease when the leased thing is lost. The petition, on certain grounds, sets forth that the leased property has ceased to be fit for the purpose intended by the parties, and that it is totally destroyed as a sugar plantation. It is contended that the filling of draining ditches, and the total loss of the growing and seed cane, does not necessarily destroy the place as a sugar plancarried on as a sugar tation;nor render it unfit for the purpose of plantation. The court has no judicial knowledge on these points, but will have to rely upon proof to be made. The averments of the petition are taken to be true, and they seem to be full and positive enough to put the defendant on his defense. Auother view of this case has been presented by counsel for petitioner, based upon articles 2046, 2047, 2695, and 2729 of the Revised Civil Code, to the effect that the petitioner, as lessee, is without fault, and that the defendant, as lessor, has neglected to fulfill his engagements, and is in default, whereby the petitioner has the right to sue for a dissolution of the lease. The correctness of this view depends upon what obligations uuder the lease devolved upon the defendant, and this can better be determined when the lease and the facts of the case are brought before the court. At present we have only the allegations of the petition, the lease not being a part thereof, although a copy is among the papers on file. With the distinct understanding that the court is passing upon the sole question whether the petition states a cause of action, the exception herein is ordered overruled.
for the use, etc., v.
(Circuit Court, D. Nf/IJ) Jersey. November 7,1884.)
NEW TRIAL-ExCESSIVE DAMAGES-PERSONAL INJURY.
In an action for a personal illjury caused by negligence, the damages cannot be measured by any fixed standard, but rest in the sound discretion of the jury; and that discretion cannot be interfered with by 'the court unless the damages allowed are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have bllen misled bv some mistaken view of the case.
On Motion for New Trial. Gilbert CoLUns, for the motion.
J. Three grounds are alleged why the verd.ict in the above case should be set aside and a new trial granted: (1) Because the evidence for the plaintiff did not disclose a right of action; (2) beNIXON,
Salomon et Randolph, contra.