
    No. 4529.
    Lucien D. Coco v. James Hardie. J. V. & M. Rabalais, Warrantors.
    Damages for a suit, unless malice is shown, can not be recovered.
    There is no ground for a call in warranty in a case of trespass, and lienee there is no right of action against warrantors.
    from the Seventh Judicial District Court, parish of Avoyelles. Sutler, J.
    
      Overton, Waddill & Safbin, for plaintiff and appellee. Irion & Thorpe, for defendant and appellant. GuUum <& Joffrion, for warrantors.
    Justices concurring: Ludelling, Taliaferro, Howell, Morgan.
   Howell, J.

Plaintiff sues defendant for the value of a large number of cypress trees at ten dollars each, cut on his land by the defendant, who calls in warranty J. Y. & M. Rabalais from whom he obtained permission to cut cypress trees on their lands, and by whom the lines of their said lauds were pointed out to him, and he was authorized to cut within such lines, which he did. The warrantors deny that there is any cause of action against them; aver that they pointed out to defendant the limits of their own lands and did not authorize him to trespass on plaintiff’s land, and they pray for damages against him. Judgment was rendered in favor of plaintiff for $1350, just half of what he claimed, and in favor of warrantors; also against defendant, for one hundred and fifty dollars special damages; the defendant to pay all costs, and he has appealed.

The judgment in favor of the warrantors is erroneous. Damages for a suit, unless malice is shown, can not be recovered. Sedgwick, Measure of Damages, p. 38. There is no ground for a call in warranty in a case of trespass. 8 N. S. 549; 2 An. 219. And hence there is no right of action against these warrantors.

As to the plaintiff and defendant the only question is in regard to the value of the trees. Some witnesses say they are worth ten dollars, others five dollars, and others four dollars each, while it is shown that the two parties called in warranty sold theirs to the defendant at one dollar each ; but it is also shown that the trees cut by the defendant ■on plaintiff’s land were of better quality, never having been culled, and w'ere in better position than those on the lands of the said warrantors. Under the circumstances we see no good reason for adopting ■ a different law from that fixed by the district judge, whose opinion ■ upon this point is entitled to great weight.

It is therefore ordered that the judgment for $150 against the defendant in favor of the warrantors be reversed, and that in other respects the judgment appealed from be affirmed; the warrantors to .pay costs of appeal.  