
    No. 6548.
    Mary D. Cooper et al. vs. Samuel C. Cappel et al.
    C'o-trcspassers are liable in solido.
    
    The husband may and should sue in his own name, to enforce any right of his wife, except when-the wife exclusively administers her own property, or when tho ownership of some dotal.or paraphernal effect, or real right of hers is involved. A joinder of the wife will be treated as mere surplusage.
    
      In a suit for damages on account ot a trespass the trouble and expense the plaintiff has been illegally put to are to be considered in estimating the damages. Attorney’s fees are a part of such expense, and may be proved, even when they have not been specifically alleged.
    The attempt of a lessee, or his vendee, to forcibly remove from the leased premises, property subject to the lessor’s privilege, is a trespass, sounding in damages.
    An irregularity in the method of returning a verdict by a jury, which does not injure any of the parlies, will not vitiate the verdict.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J. Trial by jury.
    
      H. J. Bowman, for plaintiffs.
    
      Hobart P. Hunter, for defendants.
   The opinion of the court was delivered by

Makr, J.

This is an action by husband and wife to recover damages for alleged wrongs to person and to property.

The petition charges substantially, that on the sixteenth of February,, 1876, the defendants came to the gin on the premises of petitioners and forcibly .and violently took and carried away seven bales of cotton, belonging to the wifo and in her possession at the timo. That this cotton was raised on the plantation of the wife by one of the defendants, Joseph D. Bass, who was indebted to lior in the sum of six hundred and twenty dollars for rent, and loft with her this cotton, on which she had the lessor’s lien and privilege.

That defendants came to the gin with two wagons, and one of tho number threatened to kill Silas H. Cooper, the husband, who resisted the taking of the cotton by them; that one of thorn shot at and assaulted him, and two others of them held him while the others took possession by force and violence, placed the cotton on the wagons, and carried away and converted it to their own uso.

That the cotton was worth fifty dollars a bale; and that petitioners, by the violent invasion of the premises, and tho disturbance of their peace and security, as well as by the assaulting of the husband and the lawless deprivation of their property, have been damaged in the sum of six thousand dollars, for which they pray judgment against defendants in solido.

Defendants excepted on tho grounds — that the petition discloses no cause of action; that it is too vague and indefinite; that there is a misjoinder of parties; and that defendants can be brought into court only by separate suits against each individually.

These exceptions aro simply frivolous. The petitioner charges with sufficient distinctness and clearness such wrongs, both to person and property, as form the basis of civil actions for reparation in damages,, and of public prosecutions for the insult and injury to tho peace and dignity of the State under all civilized governments.

The word “jointly” was used improperly in the English text of article-2301 ol the Civil Code by mistranslation of the corresponding word, “soUdairement,” in the French text. This article was amended by the act of 1811, page fourteen, so as to make the English text agree with the French text, and since the passage of that act there has been no room for question that co-trespassers are liable in solido. Article 2324 of the Revised Code, which takes the place of article 2301 of former editions, uses the words “ in solido” instead of “jointly,” in accordance with the act of 1844.

These exceptions were properly overruled, and defendants immediately filed o-hers, which should have been disposed of in the same way:

First — That there is a misjoinder of plaintiffs; that the wife sues for the value of seven bales of cotton, and vindictive damages, while the husband sues exclusively for vindictive damages for the attack upon his person and the injury to his feelings.

Second — That an action for vindictive damages must bo based upon or grow out of actual damages.

Third — That the district court was without jurisdiction, because the action is based upon the wrongful taking- of seven bales of cotton, alleged to be of value less than five hundred dollars.

First — It may be true that the plantation leased to Bass belonged to the wife as alleged, but it is not alleged that the wife was separate in property, nor that she administered her paraphernal property separately and alone. We can not assume that to be true which is not necessarily so, and which is neither alleged nor proven. Most wives re y upon their husbands to manage their affairs, and this is so consonant with the trust and confidence which should ever exist between husband and wife that we would presume it to be true in every case ia the absence of allegation and proof to the contrary. C. 0., article 2385 (2862).

The fruits of paraphernal property administered by the husband or by husband and wife indifferently belong to the conjugal partnership if there be a community of gains. C. C., article 2386 (2363). And rents are civil fruits. C. C., article 545 (537).

Community is a consequence of marriage where theio is no stipulation to the contrary. ' C. C., article 2399 (2 369). And this community consists of the profits of all the effects of which, the husband has the administration and enjoyment, either of right or in fact. C. C., article 2102 (2371).

Husbands may proceed in their own names to enforce the possessory and personal rights of their wives. It is only where the wife administers her paraphernal property separately and alone, or where the ownership of the dotal or paraphernal property or some real right belonging to her is involved that suit must be brought in her name, with assistance of her husband or the authorization of the judge. C. P., article 107.

Actions for personal wrongs to the wife or for injury to her paraphernal .property not administered separately and alone by her should be brought in the name of the husband alone, because the damages recovered would fall into the community, of which he is head and master and solo administrator. C. C. 2404 (2373). But as this eoxirt said, in Barton vs. Cavanaugh, which was a suit by husband and wife for the malicious 'arrest of the wife, “ the joinder of the wife does not destroy the action, and it may be regarded as surplusage.” 12 An. 333.

If it had been alleged in this case that plaintiffs wore not in community, or that the wife administered her paraphernal property separately and alone, and that trespassers entered upon her promises and assaulted and beat or otherwise maltreated the husband while he was endeavoring to protect her rights and her property, we see no good reason why they might not unite in a single action against the wrong-doers and recover tlie aggregate of the damages proven by them respectively. The-'lawless invasion of the rights and property of the wife would be aggravated by the violence clone to the husband while endeavoring to protect and defend them, as his duty required; and the assaulting and maltreatment of the husband would be aggravated by the injury done simultaneously to tlio rights and property of the wife.

We have no doubt the allegations of the petition would authorize an action by the husband in his name alone; but the joinder of the wife, where she is not a necessary party, may be treated as surplusage, and it can not in any respect prejudice the right of recovery.

' Second — If by actual damaged pecuniary loss is meant, and the intention is to assert that an action can not be maintained for violence done to a man while endéavoring to protect property lawfully and peaceably in his possession, because it does not belong to him, and he does not allege loss to himself of money or of property, the proposition is not true in law, and the tendency and consequences of such a doctrine would be most mischievous.

Third — It is certainly a new idea, and one which wo can not sanction, that, in an action for assaulting and shooting at a man, and for taking forcibly and violently and carrying away property which was lawfully in his possession, whether in his own right or in right of another, the measure of damages is the value of the property.

These exceptions were referred to the merits. They have no foundation in law, and they should have been overruled absolutely.

Three of the defendants, Matthews, Amos, and Pierre, pleaded a general denial, the two others, Cappel and Bass, answered separately. Cappel, after the general issue, avers that he bought the cotton from Bass in good faith for a valuable consideration. That Bass represented to him that he had paid the rent. That Bass had leased the premises and the gin-house from Mrs. Cooper, and was holding over, in his posses-«ion as lessee, until he could gin ancl remove the crop made by him; and that he entered the premises after the purchase of the cotton, bona ficle, and in company with Bass, for the sole .purpose of accepting the delivery of the cotton from Bass, at his request, and in pursuance of the sale. He denies that the cotton was over delivered to or in the actual possession of Mrs. Cooper or-of her husband and agent, Silas H. Cooper. 'He denies that she ever had jus in re, and alleges that her claim on the cotton ivas only jus ad rem, which was imperfect, and gave her a right of action only.

He denies that lie ever disturbed the peace or security of Mrs. Cooper; he denies that the loss of seven bales of cotton can bo made the basis of an action for damages for six thousand dollars, so as to give the court jurisdiction, and he expressly reserves his peremptory exception to the jurisdiction.

ÍBass pleads the general issue; and he specially avers that ho leased the premises for the year 1875 from plaintiffs, and was, at the time sot forth, holding over in his possession of the land and the gin-house; that he never delivered the seven bales of cotton to either of the plaintiffs in payment of rent or other claim; that he sold the seven bales to Cappel for a price agreed upon, and that he -went with Cappel arid wagoners for the purpose of delivering the same to Cappel upon the premises, of 'which he was still in possession; and that he did then and there deliver the same to Cappel.

The case was submitted to a jury on these pleadings; and a verdict rendered against defendants, in solido, for one thousand dollars in damages. From the judgment rendered on this verdict both parties appealed; and the plaintiffs have answered the appeal taken by defendants, and pray that the judgment be so amended as to allow them six thousand dollars.

Five bills of exception were taken by defendants, which we shall dispose of before entering upon the merits:

First — Defendants objected to the admission of testimony to prove injury to the feelings of plaintiffs, and attorney’s fees as part of the damages, on the ground that the only specific sum claimed as damages was the value of the seven bales of cotton; that defendants having excepted to the jurisdiction plaintiffs could not prove any amount of damages to give the court jurisdiction. They also objected that plaintiffs had not claimed attorney’s fees, and they could not bo permitted to prove more than they claimed.

The court admitted the testimony on the ground that the cause of action is an offense against the person and property of plaintiffs; and the fees of attorneys, the value of the property, and the injury to the feelings of the plaintiffs might all be the subject of inquiry in the assessment of damages.

la a caso like this thoro is no basis upon which the damages can bo fixed with absolute certainty; and the jury may well consider the trouble- and expense to which tho plaintiffs have been subjected by the wrongful act of defendants; and it is proper for them to take into the account, as part of tho expense, the reasonable fees of attorneys. See Dyke vs. Walker, 5 An. 521, 522. The suit is for damages, and not for attorney’s fees; and it was not necessary to claim the attorney’s fees specifically in order to let in the proof as an element of damages.

The objection on the ground of want of jurisdiction is altogether unfounded. Where tho jurisdiction depends on tho amount in controversy tho sum demanded determines the question; and tho amount sued for in this case is six thousand dollars.

Second — Under an agreement, counsel for plaintiffs introduced tho testimony of two witnesses, who were not present, taken in writing on the preliminary trial of the case of tho State vs. Cappel and others; to which defendants objected on the ground that it was res inter alian; and that the agreement only related to such witnesses as wore present and subject to cross-examination.

The court correctly ruled that the admission of tho testimony was in accordance with the agreement between tho parties, as. entered on the minutes.

Third — Counsel for defendants read to the jury and commented on the case of Black vs. Carrollton Railroad Company, 10 An. 33, and asked the court to charge the jury in the language used by Chief Justice Slidell in that case, p. 44. The bill of exceptions states that the court refused to give the charge. The judge says he did not so refuse. That ho told the jury all the law read by defendant’s counsel was good law, but that tho case was different from that at bar, and tho decision read was not applicable. He told the jury, however, that they were the judges of tho law and the facts.

It is most remarkable that the judge did not tell the jury that the language which the counsel for defendants desired him to tell them -was the law, and applicable to the case, was that used by one’member of the court in his dissenting opinion; that it was not tho language of the court; that the majority of tho court decided that it was rot law in that case, and that it had no application whatever to the case they were trying. '

Fourth — Tne court charged the jury that tho lessor may take the effects upon tho leased premises, and keep them until he is paid; that his lien is as valuable to him as if he were the owner of the property itself; and not even a sheriff or marshal can take away the property before paying the lessor his rent.

This charge is almost in the very words of the Civil Code, article 3185, and of this court in Robb vs. Wagner, 5 An. 112, and Arick vs. Walsh, 23 An. 605, 606. As there was no seizure by sheriff or marshal, the judge had no special occasion to refer to them, but what he says might well be stated to tho jury, arguendo, to show the wrong done by the defendants in depriving the plaintiffs of property by force which even the sheriff or the marshal could not take away under legal process without paying the rent.

Fifth — The case was submitted to the jury Saturday evening about five o’clock, and tho court adjourned until Monday morning. On Sunday morning at ten they notified the judge, through the sheriff, that they had agreed upon a verdict, and they came into tho court-room, accompanied by the sheriff, and handed their verdict to the judge, which was read aloud to them, and which they, each and every one, stated was their verdict. Tho judge told them they might he discharged from the confinement of tho jury-room, but that they must return Monday morning and render their verdict, which they did in open court, and which they again declared was their verdict.

All these proceedings were in the presence of the counsel for defendants, and the verdict which was handed to the judge and which was read on Sunday is the same which -was rendered on Monday in open court.

When the court adjourned Saturday evening the judge might have told the jury, in case they agreed, to return a sealed verdict. It seems ne did not do this. Where tho jury return a sealed verdict it is handed to the clerk, but it is not easy to perceive any good reason why, in a civil case, if tho judge should bo willing to repair to the court-room, the jury might not, in presence of tho parties or their counsel, hand to the judge their verdict in writing, on Sunday, and be discharged from the confinement of tho jury-room. The publicity given to the verdict, the signature by the foreman, tho reading it aloud, and having the declaration of each and every juror that that was tho verdict, afforded ample-security against any subsequent alteration, and this seems to us equally as safe as tho delivery of a scaled verdict to the clerk. If the proceeding in tho case was irregular, it certainly -was nothing worse, and it in no manner prejudices either party to tho cause, nor can it vitiate the verdict.

Joseph D. Bass leased tho plantation of Mrs. Cooper for one year, ending January, 1876,'for §700. He remained on the place for the purpose of gathering the crop, good part of which he shipped to market. On tho twenty-fifth of January he and Cooper made a settlement, and Bass made out, in his own writing, and signed a statement showing- balance due by him for the rent, §620 40, “ for which my entire crop is bound until satisfied.”

Bass left the place on that day, twenty-fifth of January, 1876, and Cooper permitted him to take away his personal effects, including two mules and a horse, leaving, to pay the rent, tho cotton that was in the field, which Cooper had picked by hands hired and paid by him.

On tho sixteenth February, when this cotton was passing through the gin and being put into bales, Bass returned and superintended the work. About five o’clock in the evening ho left and went to the store of Cappel, about one mile from the gin, and there, in the presence of persons who seemed to have been called to witness the transaction, he sold to Cappel the seven bales, the entire remainder of his crop, at eight cents a pound, city weights, which means simply that Cappel was to ship the cotton to New Orleans and to allow Bass for so many pounds as tho cotton might be found to weigh at New Orleans.

There was no money paid, and none was to be paid. Bass owed Cappel, and was to be credited with tho amount in account.

Immediately on the closing of this transaction, Cappel, his clerk, Matthews, Ralph Amos, and Zeddo Pierre got on the two wagons which belonged to Curry, tho uncle of Cappel, and which had arrived from Evergreen at an early hour in the day, and sot out for tho gin on the Cooper placo, accompanied by Gilhnore Cuiry and Bass on horseback, to receive delivery of the cotton, and to remove it from tho premises. On the way, between Cappel’s store and the gin, they passed tho shop of Odom, about sunset. Matthews and Cappel callod to Odom to got his pistol and go with thorn, which Odom, did and his brother accompanied them.

After tho Odoms got on tho wagon, Cappel told one of them, who testified on the trial, that they were going to have some fun. They were going to Cooper’s to get some cotton. That Joe Bass was to do the fighting, as he had his pistol and his brass knuckles on; that Cooper had some eight or nine armed negroes at the gin and “says wo shan’t have that cotton.” He then drew his pistol, and said with an oath, “ If I get among them I’ll make them scatter,” and he handed his pistol to Odom to look at, which he did, pronounced it all right, and returned it to Cappel.

About this time, and as they were approaching the gin-house, Odom jumped off the wagon and Gillmoro fell behind. Cappel and Bass headed the party and led the wagons into the gin-lot or inclosure in which the gin-liouse stood, and turned them round near the gin-house.

Cooper inquired of Cappel what his business was. Cappel said he had come for two bales of cotton belonging to one Griffin, also a tenant of Mrs. Cooper, and he offered to pay the rent due by Griffin. Cooper asked Cappel why he had brought two five-mule teams to take away two bales of cotton, and Cappel then informed him that he intended to have all the cotton there. Cooper said he could not do that, that the cotton belonged to his wife; if he took it he must take it by force, and that he would be robbing an innocent woman. Cappel, addressing Bass, said: “ Joe, Mr, Cooper, says this is his cotton.” Bass answered, “It is no such thing, for I made the cotton, and I turn it over to you.” Cappel then said, “ If that’s the way it is, put it in the wagon, boys.”

About this time Cooper and Cappel wore, near together, and there is some proof that Cooper took Cappel by the shoulders and.sh.ook him. Cooper drew, or had in his hand, a small derringer. Cappel drew his revolver, aimed it directly at Cooper, and threatened to kill Cooper if he did not put up his derringer. Curry, who up to this time had remained on his horse, jumped off and struck down Cappel’s arm, so that his pistol was lowered and the ball missed Cooper. Cappel struck at Cooper with his pistol, and either the blow knocked him down, or he stumbled and fell. Curry, the uncle, and Matthews, the clerk of Cappel, immediately laid hands on Cooper, and took him off and held and detained him in spite of his resistance and struggles, while the cotton was put upon the wagons, and until Cappel left, followed by the loaded wagons.

Curry and Matthews say they held Cooper to prevent his shooting Cappel or Cappel shooting him, but no one held Cappel. Cooper insisted on their releasing him, and Curry said he would if Cooper would give up his pistol. Cooper said he wanted to go where Cappel was. Curry said he might if he would surrender his pistol. About this time Odom came up and interposed, and told Curry he ought to let Cooper have his pistol, -to which Curry answered, “ If you have any business to attend to you had better ylo it.”

Cappel corroborates Odom fully with respect to the preparation he had made for a fight. He says:

“ AVhen we were on the wagons I heard that there were some seven or eight negroes at the gin-house, and I showed my p:stol to Mr. Odom, and said if I got after them with it I would make them scatter if they interfered with me.”

He says, on cross-examination: “The cause of the row was because Mr. Cooper would not let me take the cotton, and pulled a pistol on me. The cause of the row was because Mr. Cooper resisted me in my attempt to take the cotton, which he said belonged to his wife, and because he pulled a pistol on me.”

It is sufficiently proven that Cappel knew from Cooper’s statements to him, on the Saturday before the sixteenth of February, that Bass had not paid the rent, for Cooper told Cappel he would give one hundred dollars to any one who would take the cotton and pay the rent due by Bass.

The pretense that Bass was holding over and was in possession under the lease, .and that he could give authority to enter the inclosure and take away the cotton, is idle. Bass should have gathered the cotton and have ginned it, so as to have made it available. to Cooper for the rent, and his presence at the gin-house on the sixteenth, for the purpose of baling the cotton, was not unlawful, because it was with Cooper’s consent. But in no sense was ho a lessee holding over on the sixteenth of February, after halting left the premises, moved off, on the twenty-fifth of January. The entire party, all the defendants, were simply trespassers and violators of the rights of possession and of property when they left the road with their wagons and drove into the gin-house inclosure.

Cappel paid no money for this cotton. He and Bass and Matthews testify that Bass owed him more than the value of the cotton, as they say, for advances and supplies to make the crop, and Bass wanted Cappel. to have the cotton, because Cappel promised to advance to enable him to make another crop. Cappel had not recorded any privilege for the debt due by Bass ; and the property, the cotton, was on the leased promises, in possession of the lessor. There is no room to question the right of the lessor to keep and retain this property until the rent was paid; and this right was superior to any right which Cappel liad or could liavo acquired.

Cappel know that Cooper would not give up the cotton willingly. He know that before he loft the store. It was not necessary to go with eight others, armed, to receive delivery of seven bales of cotton from the owner. But Cappel told Odom that Cooper “ says we shan’t have this cotton and there was apparent necessity for him to go in force when ho knew that Cooper either had or professed to have superior rights and claims to it, and had also the courage and manhood to assert his rights, and to attempt to maintain them.

What Cooper did after Cappel had, with his co-trespassers, entered the promises and Cappel had ordered the boys to put the cotton on the wagons, notwithstanding the remonstrances of Cooper, and his repeated declarations that Cappel would have to take it by force, and that ho would be robbing an innocent woman, it is not material to inquire. Far bo it from us to encourage or sanction by any word of ours violence or a resort to force to vindicate rights which may be enforced through the machinery of the law, but we deem it not improper to say under all the circumstances of this case, if Cooper had killed Cappel he would have incurred no criminal responsibility; while if Curry had not at the critical moment struck down Cappel’s arm he would in all probability have been guilty of one of the highest crimes known to the law — murder—while engaged in a lawless violation of the right of property.

There was, beyond doubt or question, a lawless combination, a conspiracy, a pre-arrangement by the defendants, to go to the gin-house at a late hour — it was after sunset when they left the store, getting dusk when they reached the gin-liouse — to take and carry away the cotton by force, by the use of deadly weapons, firearms, provided in advance, if Cooper could not be overawed and the anticipated resistance repressed by numbers and by bluster.

Such lawlessness must be repressed, must be put .down by the strong harid of the law, and wrong-doers must bo taught that “ the way of the transgressor is hard.” It is only when the laws are enforced and obeyed, when rights are observed and respected, and when the citizen can feel that ho is secure in his person and property so long as he does no wrong to others, that there can be peace, good order, and prosperity in the land.

We have searched the record in vain for one single mitigating circumstance. An old grey-headed man, as Odom describes him in his testimony, a “ functionary of the Methodist Church,” as Cappel calls him in his answer, an itinerant preacher of the gospel, while peaceably engaged at work on the premises of his wife, is assaulted, shot at, held forcibly by two men while others of the same party take and carry away property which he claims in behalf of his wife, and which two of the chief trespassers knew was subject to her right of pledge as lessor. Comment would but weaken the force of the simple statement of the facts.

. We consider the case one which eminently requires exemplary damages, and it affords a fit occasion to give warning to the lawless and the violent that they are not to expect leniency at the hands of the judicial tribunals. If the jury had given the full amount of damages sued for, we should not have disturbed the verdict; but the amount -awarded is wholly inadequate. We gather from the record that the grand jury of Rapides parish have dealt with this matter, and that fact may have influenced the jury in their assessment. It shall have all the effect with us to which we think it entitled.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, and that plaintiffs recover of defendants, in aoUilo, the sum .of three thousand dollars with costs in both courts.  