
    
      FORTIER vs. M'DONOGH.
    Individuals summoned to work on the levee of delinquent planter are to be paid out of the treasury of the parish and have no action against him.
    Appeal from the court of the parish and city of New-Orleans.
    The petition stated, that plaintiff made certain works on the defendants’ levee, who having been notified to make certain repairs thereto, in conformity with the regulations of the police jury, neglected and refused to follow the directions of the syndic, in the delay prescribed by the said regulations, whereby the plaintiff became entitled to demand of the defendant the value of said work.—For this he had obtained judgment in the parish court and the defendant has appealed.
    The original answer denied the plaintiff’s right to an action, pleads the general issue and an amended one sat forth that the sum, claimed by the plaintiff, had been paid him out of the treasury of the parish.
    East'n. District
    May 1817.
    
      Turner for the defendant.
    This case, will be found by the court, to be one of easy decision; but
    It contains many errors, and is attempted to be supported by principles so novel, in the law of actions, that we must consider it under several aspects.
    1. We will consider it as a civil action, for the recovery of a private right. And on so doing, shall shew the action, to be misconceived, and ill founded.
    
      2. We shall consider it as an action ostensibly by an individual, but in reality, one commenced by the police jury, for the recovery of a duty, which is claimed by the parish, of a delinquent. And in so doing we shall find it equally misconceived and ill founded.
    I. By recurring, to the law of actions, we shall find that there must be a right, in the plaintiff, to recover some thing, arising either ex contractu, or ex delicto. 1 Chitty’s Pleadings, 1, 2, 3. Cowp. Inst. 126, 7, § 1.
    Cases arising ex contractu, are those of express contracts, and those of implied contracts, or quasi contracts. Domat, pub. law, lib. 4, tit. 1, § 12.
    
    Cases arising ex delicto, are those which depend on some injury, done to, or sustained by, the plaintiff, in his person, character, or property, arising by some wrong done by the defendant, or by some omission to perform a duty. Causing damages to the plaintiff.
    In every case, the plaintiff must shew, in his petition, such a cause, as will intitle him, to recover of the defendant, if his facts are true. Acts of 1805, pa. 210.
    For unless his case, as by himself stated, be sufficient; he cannot supply it by evidence; by the rule that the proofs, much accord to the allegation.—
    No such cause is here stated by the plaintiff. he founds his right of action, upon some alleged police rules and some labour done by him, in pursuance thereof. Here we are presented with several considerations, as
    1. Are there any such police rules?
    
      2. Has there been the work done?
    3. Was the work necessary, and has it been undertaken according to the laws of police?
    All these things, must not only fully appear, on the petition, but they must appear to be lawful in themselves.
    
      1. The general police rules, as made and promulga ed, under date of the 6th July 1815, give no such prices, ordain the performance of no such duty, nor do they afford any such action as the present.
    What then? Are there are other police rules? There are none shewn.—
    There is indeed an extraordinary proceeding, of some members of the police jury, convened contrary to law, consisting of less than a lawful quorum: and which are not rules of police, but a special decree, affecting a single person, without his being a party thereto, or even having any knowlege of such proceedings; a proceeding wholly illegal.
    By the act of 1813, the jury of police must be composed of a majority of the members elected, who are twelve in number; and at least one third of the justices of the peace, in commission in the parish, and they shall meet on the first Monday in every year, at the seat of justice.
    As a tribunal, created by a special law, for special purposes, and with limited and special powers; those who claim rights, or performance of duties, under the rules or ordinances of such a special tribunal, must shew themselves intitled by the very letter of the law.
    By comparing these police roles, with the acts of the legislature, creating them, and defining their duties and powers, they will be found to be illegal and void. But admitting, for sake of argument, that they are valid, then there is no right given to the plaintiff, to institute this action.
    His claims are against the parish treasury, and that treasury are provided with a certain and special remedy for the reimbursement of such sums as they lawfully pay for the wilful neglect of the proprietor.
    2. This work, could only be done, in consequence of an undertaking by the job, as is provided by the act of assembly of 1807, or by day labour by order of the parish judge, in case of default of the proprietor, after notification.—These are the only legal modes.
    If it was done by contract, at a letting by the job, then the plaintiff should so have stated it; but not having stated it, we cannot presume it, and especially as the contrary is stated by him in his petition.
    If it was done by day’s labour, it should have been so stated, and the price per day is one dollar, affixed by the same law of 1807. But the petition states, not that fact, but the contrary: it goes for work done by the cubic toise, under certain pretended rules.
    
      Therefore no work has been done for the defendant by the plaintiff, in pursuance of any contract by the job, or by day labour, by order of the judge, nor in the obedience of any law of the state.
    3. The works must be necessary ones, to wit, such as the defendant was legally bound to perform, and which he had neglected.
    It appears not that the works were necessary, it is not even so alleged; what right therefore has the plaintiff to work on the defendant’s land; and then to come for pay, if he does not shew he has done a necessary work for him, and one he was bound to do for himself? It is not only not shewn to be a work, the defendant was bound to make, but by the proof, it is fully shewn, that it was not necessary, nor was the defendant bound by any law to make it.
    II. There is nothing more certain, in the law of actions, than this; that he who claims as plaintiff, must have the legal title or the equitable right to enjoy the thing sued for. Hardin’s Rep. 561 to 564.
    
    Nor can any person, or body corporate, authorise another to sue in a different name without transferring the title by legal form to such person, or by his having an equitable right to the enjoyment of the thing, the naked title where of is in another. 2. Bay’s Rep. 519, Civ. Co. 88, art. 6.
    Let us therefore examine if the parish have either the legal title to recover of the defendant the sum sued for, or
    Have they the equitable right to the enjoyment of the thing, the legal title whereof is in the plaintiff?
    1st. If the work done, or pretended to have been done by the plaintiff, and thirty others, was a work done for the parish, and by virtue of any legal authority, then their claim was upon the parish, for payment. And the legal right and title was vested by law in the parish to sue in the most summary way for the reimbursement. 1807, pa, 132, 15.
    
    The planter ordered to do a work under the police laws, and failing to comply, necessarily submits himself to the rigour of the law.
    In such case the work which he has neglected to perform, must be done by the parish and at the costs of the parish equally portioned among the inhabitants. 1807, pa. 132, §. 2.
    
    Those employed by the parish trust not to the credit of any single person. They trust only the parish with whom the contract is made.
    They cannot be compelled by the existing laws to resort to the private fortune of any one, for the price of the work, and it would be unjust to compel them to do so.
    There is no privity of contract, nor any privity of interest between the defaulting planter, and the undertakers for the parish.
    We must never forget that the duty devolves on the parish, to do the work, upon the default of the planter. And they may cause it to be done by the job, or by day’s labour. 1807, pa. 134, § 4.
    And whether in the one mode or in the other, the workmen have their demand for payment, only on the parish—They have no right to sue the defaulting planter.—Because another remedy is given.
    In this case, it is contended for the parish, that they have paid the plaintiff, and have not any right to sue but in his name. But
    According to my interpretation of the law, his name cannot be used for divers reasons, as
    1. Because a special remedy is given to the parish by the act of assembly to make by laws, and to enforce obedience from them, to make contracts, in certain subjects and to enforce the performance of them. 1807, pa. 132. 1813, pa. 156. Abr. of corporation police rules of 1815.
    
    
      2. But to deny them the right of proceeding in the manner pointed out by law, for the reimbursement of the expenses, in such cases, would be to deny the power of providing for the redress of evils by the police, in cases of disobedience of individuals, and of making contracts for public works.—A principle inadmissible.
    3. Because they have only a special power to do certain things, and in a certain way, and as such, they cannot do more, nor in a different manner : they have power neither to make, nor to receive assignments of obligations; they have no power to make contracts but in relation to the subjects of police. 1807, 1809, and 1813.—before quoted.—Civ. Co. 4. art. 13, 2 Bay 180 to 182, Cowper 29. Hardin 94. 4 Bac. Abr. 661. ca. 6.—1 Cranch 71, the whole case. 2 Cranch 127.
    Therefore the supposed agreement by them, made with the plaintiff, and all other of the planters, whom they say worked on the defendant's levee, to institute and prosecute separate suits against the defendants for the use and benefit of the parish, is one not authorised by law.
    Neither could the plaintiff maintain such an action without authority of the parish, nor with it. He had it not and they could not give it.
    As well might the corporation of the bank, attempt to maintain a suit in the name of its cashier, for a corporate right. 1 Bac. Ab. 504, 5, 6, 7, letter D. and E.—2 Cranch 127.—
    As well might the corporation of the city use the name of its treasurer, or of any one of the parishioners, in suits for corporate rights, as for the parish to make use of the name of the plaintiff to enforce obedience to a parish duty. 1 Bl. Com. 475.
    2dly. The parish have not only the equitable right to enjoy, but also the legal title to enforce the reimbursement of the sum expended on contracts legally made, to meet the public exigency in case of default on the part of the individual bound by law to make a work prescribed.
    When therefore the legal title and equitable right meet in the same person, there is nothing in any one else to found an action upon. Hardin 561, &c. Bay 519.—
    “An action” says Justinian, “is nothing more than the right of suing in a court of justice for our lawful demands.” lib. 4. tit. 6. Co. Lit. 285. a.
    
    By this rule the plaintiff, Fortier, not having originally the right to demand of the defendant the payment of the work by him done in pursuance of orders from the parish judge, could not maintain any action in court for it.
    
      But it is contended his name is used by the parish to sue for their use, and the common case of an action in the name of the payee of a note, for the use and benefit of a purchaser of the note, is introduced as an authority for this.
    Before any example can be received as an authority, its similitude in fact and in principle must be admitted, let this be examined.
    In the case of the note, the payee had the legal title to the action, and might exercise it for whose benefit he pleased, or he might transfer it to whom he pleased, in full right.
    But if he had not the legal title to the thing, I should be obliged to my adversary to inform me by what law he maintains an action in his own name, for the use and benefit of another? See the cases before quoted.
    
    Here the parish endeavour to derive title to the proceeds, from the plaintiff, whereas the defendant is a creditor of the parish, and sues to recover a debt due to the parish, if due to any one, that he may enable the parish to pay him the sum they owe him!!
    Thus to maintain this action, in the name of Fortier, are the parish driven to the miserable shift and pretence of placing him in their own stead, to sue for a right due to themselves, under the false pretext, that it was due to him, and that they have acquired a derivative right from him.
    And this is done too in the face of a law, giving to them a specific and summary remedy to reimburse themselves, not for the part of the sum by them laid out, but for the whole expenditure occasioned by the defendant’s delinquency.
    It is deemed sufficient to defeat this action that we shew, there never was or could be any privity between the plaintiff and defendant, for the rights by him demanded, without resorting to the inconveniency and burden, as well to the parish as to the defendant, of deviating from the rule prescribed in the special laws, in relation to this subject.
    But as the defendant deems it extremely vexatious to be obliged to defend himself in court against twelve suits, instituted against him, in this manner, it is my duty to lay the whole matter fully before the court.
    If we admit, for the sake of argument, that the defendant is indebted to the parish, for disbursements made by his delinquency, in a sum of several thousand dollars, it is but a sum in gross, and is the ground of one action only.
    How therefore is it to be maintained, on what principle of law, equity or justice, that this one demand shall be split and divided into twelve suits, or as many move as there were persons called to the work?
    In the common case of an account made up of several items, created at several times, there can be but one action for the whole.—No man would be allowed to proceed in a separate action, for each separate item in his account: such an attempt would be viewed with indignation by the court. In such a case, as the one supposed, the court would order the actions to be consolidated: the court would order the plaintiff to pay costs in all but one of them.
    But what would be done with a man who, having such an account, should set forth as many different plaintiffs, to sue as many different suits, as there were different items in the account? The court would be struck with amazement at such an abuse of the judicial process. The actions would all be dismissed. The plaintiff condemned in the costs, and subjected to a prosecution for baratry.
    Such therefore has been the conduct of those who have the management of the police of this parish, under the pretence of having disbursed in payments to twelve inhabitants the sum of $3438,50, which the defendant should reimburse to the parish treasury, if the payments had been justly made for his delinquency.
    
      The parish officers, instead of proceeding by the means prescribed to them, in the law, for the reimbursement of that sum, have caused twelve suits to be instituted by the persons, to whom the money has been paid, or was payable, for the recovery thereof, for the use of the parish and the reimbursement to the treasury of the said sum.
    Can such a proceeding be sanctioned by any impartial tribunal? Are there any principles of law or equity to support such a measure? Shall we not therefore resent it with indignation as vexatious and oppressive to the defendant? But again. The defendant may have a just cause to resist the claim of the parish.
    We have no means to prevent the parish officers from employing what workmen and paying them what prices they please. But, when we are called upon for the reimbursement, we have a right to resist the demand, unless it is such as is sanctioned by law.
    Nothing is more evident than this principle, that no man nor set of men, whether corporate or incorporate, can take from me with impunity my property, but by the law of the land, or the judgment of ihe courts.
    Therefore when the parish, as well as when an individual, shall make a demand on me, for the performance of some labour, or for the payment of a sum of money, I have the right of saying to him your demand is not a lawful one, and I will not pay, nor perform until I am heard in a due course of justice. And shall I be deprived of this right, by any evasion or artifice of the demandant? or shall I be so burdened with the multiplication of suits, by a third person, as to be compelled to submission, without the power of resistence, or shall I be compelled to make my defence twelve times over, and under all the disadvantages of meeting a masked enemy? Shall I be compelled to meet my adversary, not directly and face to face, where my defensive arms would strike home upon him, but through one put in advance, acting the puppet’s part of an ostensible person, but in reality only as a shield or mask to cover, and conceal the juggler behind the scene.
    
      Moreau, for the plaintiff.
    The regulation of the police jury could not destroy the right of action, which the plaintiff had against the defendant, for the payment of the work done to the defendant’s levee, nor compel him to wait for this payment out of the parish treasury.
    The legislature itself could not have enacted a similar law, and if it had been enacted, it would have been unconstitutional.
    
      No one can be compelled to yield his property even for the public use, without a just and previous compensation. Const. U. S. art. 7 of the amendments. Civil code 103, art. 1.
    Can it be said that the compensation would be just and previous, if the parish could force a planter to perform the work of another and wait for his payment, till it could be obtained out of the parish treasury; which is often for several months empty. It is clear that such a disposition would be as unconstitutional, as one by which my slaves should be taken from me to work for another, to be paid on a particular day, or when he could have funds to pay for their work. The police jury ordering that planters who might work on the levees of others, should be paid out of the parish treasury, has only given them an additional surety, without intending to destroy the direct right of action against him whose work they might be ordered to do. Thus every day a man binds himself to pay the debt of another, and his obligation is only an accessary to the principal one, which it strengthens, but does not impair or destroy, unless on account of a special stipulation. 2 Pothier on obligations, 559.
    
    II. The plaintiff indeed cites the regulation of the 6th of July 1815, in his petition—but with the only view to shew that planters are bound by it to send their slaves, on the demand of the judge, to work on the levees of their delinquent neighbours. Having then been required to work on that of the defendant, and having worked accordingly, there results from this very work an action for compensation against the plaintiff. The present one is not grounded on this regulation which allows two dollars per day for each slave; for he claims three dollars per cubic toise, under that of the 3d of September following.
    III. The act of April 6, 1804, §. 4, provides indeed that the judge shall compel delinquents to pay the works done to their levees, even by the seizure of their property: but it would be absurd to pretend, that on such a case he could proceed ex officio, without a previous demand of the party interested.
    The law requires in every action three distinct persons, actor, reus et judex. Every action is to begin by a petition containing the names and residences of the parties, the ground of action and certain detail of time and place, 1805, c. 26.
    This is admitted, but it is pretended that the rigour of these forms may have been dispensed with by the legislature in certain cases, and it has been dispensed with in this, by ordering the judge to compel payment—a form of proceeding said to be not more extraordinary than the recovery of certain fines, which is obtained on a rule to shew cause.
    The act of the 6th of April 1817, provides simply that the judge shall compel payment, but not that he will prosecute: which would be absurd. The legislature had it in view, in this act to give exclusive cognizance to the parish court, and the judge could only compel payment in the ordinary way by judgment and execution. This is the construction which the supreme court put on this act, in the case of Syndics &c. vs. Mayhew, ante 175, in which the parish judge had granted an order of seizure de plano. Yet in that case a petition had been presented, and there were actor, reus et judex.
    
    Further, the 7th article of the amendments to the constitution of the U. States, requires that in every civil suit, above twenty dollars, the facts should be tried by a jury. How could then a jury have passed on a case in which no issue was joined?
    In prosecutions for a fine, no petition in general is required, the question being merely whether the law had been contravened. Yet, in such a case, there is always a party plaintiff, at whose instance the judge grants the rule to shew cause. Fines are decreed to the state, the city or an informer, who may stand in court, and it is on their application, that proceedings are had. The judge never proceeds ex officio. In the present case, as the parish is not incorporated, if the judge acts, he must be plaintiff himself.
    The object of this suit, is not a fine, but a claim grounded on several distinct facts, which ought to be alleged in a petition and tried by a jury, if either of the parties desire it. The plaintiff had to prove that he had been called upon, that he had wrought on the defendant’s levee, the extent and value of the work he had performed.
    IV. The payment, received from the parish treasury since the inception of the present suit, has not destroyed his claim against the plaintiff, if as has been shewn it really existed. He brought his suit on the 12th of June last and on the 27th of the following month he received his payment. Till then, he had proceeded regularly and is entitled to his costs.
    He has at all events a right to proceed to judgment for the benefit of the parish. There is no inconveniency that when a third party pays the sum due to the plaintiff, he should use his name to obtain his reimbursement, especially when the payment was not made, with the view of discharging the debtor, and was accompanied by a subrogation of the rights of the creditor.
    One, says the law, may pay the debt of another without authority from him, and even without his knowledge, Code Civil 287, art. 136. 2 Pothier on obligations, n. 463.
    In order that the payment may operate the extinction of the debt, and consequently of the action, it is necessary that he who makes it, should pay in the name, and for the discharge of the debtor. Ib.
    
    But when the payment is made by a third person, in his own name, and with subrogation of the rights of the creditor, neither the debt nor the action are thereby extinguished, and both continue in the person of the payor and assignee. For this payment is reputed to be less an act of liberation than a purchase of the rights of the creditor for the sum paid him. Ib. 522.
    
    It is true the parish has paid the plaintiff, but not with a view of discharging the defendant, as appears by the receipt taken by its treasurer. The debt continues to exist in favour of the parish, who has succeeded to the rights of the plaintiff.
    The parish is subrogated to the rights of the plaintiff.
    
      Subrogation is conventional or legal. When it is conventional, it must be express and made at the time of payment; but when it is legal, it operates tacitly and by the sole effect of the law. Code civil 288, 290. art. 149, 150.
    The parish, being bound by the regulation of the police jury, to pay for delinquent planters, is of right subrogated to the rights of those who performed the works neglected by the delinquents; as soon as it pays them. Code civil 190, art. 51, n. 3.—Being thus subrogated to the plaintiff's rights, it may lawfully continue in his name, the suit which he had commenced.
    A subrogation is rightly assimilated to a cession of rights and actions and produces the same effects. And it is in every day’s practice, in the cession of litigious rights, where the assignor has already instituted a suit, that the assignee uses the assignors name to obtain the recovery of the debt till judgment. It is not easy to see how this can be disadvantageous to the debtor: the law has however provided that, if he can shew that the transfer of the claim has been made for a less sum than the nominal one, he may obtain his discharge by the payment of the sum paid by the assignee 2 Pothier, contrat de vente, n. 596.
    I conclude that the parish can legally prosecute the suit, in one name of its assignor.
    
      On the merits, it is contended, that the police jury could not alter by a special regulation on the 30th of September 1815, what had been generally provided by that of the 15th of July.
    It is true that generally equal laws must be made for every part of the community. There are, however, special cases in which this principle must be deviated from. When a short time ago the waters of the Mississippi made their way through a huge crevasse in the levee, a few miles above New-Orleans, and threatened the city with destruction, no one complained that immediate regulations were resorted to; because those that had been provided were insufficient to avert the impending evil. Sueh was the case when the police jury passed the special regulation complained of. During the preceding summer, a crevasse in the plaintiff’s levee had inundated the land around his plantation and destroyed the crops of his neighbors. His levee has a length of thirty arpens, and was to be made entirely anew. He had been ordered, as early as the 9th of August, to put two hundred negroes on his levee, as a less number could not have completed the work required, before the month of November, the period at which the regulations required it to be completed: and in the latter part of September the work was so little advanced, that a requisition of every working hand in the district became necessary to the completion of the work, while every planter had need of all his hands either to repair his own levee, or attend his crop.
    In these circumstances, the police jury, on the 30th of September, 1815, desirous, as the preamble to their resolution expresses it, “ to facilitate the planters whose slaves were to be put in requisition for this levee, and render it less burthensome to the owners” and the present defendant, ordered that three dollars per cubit toise should be paid, instead of two dollars per day as fixed by the 15th article of the resolution of the 15th of July. This alteration, in the mode of payment, far from being detrimental, was advantageous to the defendant. The police jury had considered, that if any negroes were put in requisition, at the usual price of two dollars per day, women or old men would have been sent, and that the completion of the work would be furthered, and the interest of the defendant promoted by this alteration of the mode of payment. Tanesse, a surveyor, and one of the witnesses who have been examined, deposes that a stout negro can complete a cubit toise of levee per day, only when the levee is but three feet high, and the dirt is at hand; and only two-thirds of a toise when it is higher and the dirt distant, which was generally the fact in the present case.
    The plaintiff contends that this regulation of the police jury is not legal, or obligatory on him, because the proceedings do not shew that two-thirds of the justices of the peace of the parish were present, as required by the act of the 25th of March, 1813.
    The minute books of the police jury shew, that the title of justice of the peace is only given at the first meeting of the jury, in 1815, and not repeated afterwards; but it is apparent there were three justices present out of the five in the-parish: as to the justices for the city, as they are exclusively appointed for it, it is clear that their presence cannot be expected.
    Lastly, the plaintiff contends that the work which he was ordered to perform was unnecessary; and in support of this assertion, he has produced the testimony of three gentlemen.
    But, who are the competent judges of the necessity of the work, on levees? The police jury, and not the courts of justice. In what confusion would we not be in, if this was not the case? The legislature has given to police juries the right of making regulations in this respect, which have the force of a law. The 8th and 9th articles of the regulations of the 8th of July, 1815, have determined the dimensions of levees, and leave the annual repairs which they may require to be ascertained by the syndic of the district, assisted by two planters of the neighborhood; and the 10th article authorises the syndic to determine the number of hands which the planter is to set at work on his levee.
    All these formalities have been performed, in regard to the plaintiff, in the present case. His representations to the police jury have been listened to with patience, they have insisted on the work directed by the syndic being peformed. What weight has against this the opinion of his three witnesses, one of them his overseer, in opposition to the result of the deliberations of the jury?
   Martin, J.

delivered the opinion of the court. The 15th article of the regulations of the police jury provides that where a planter shall neglect to make the requisite repairs to his levee, on notice from the syndic, that officer will cause them to be done by slaves, put in requisition by the officer in his district, whom the judge will order to be paid out of the parish treasury, on the syndic's detailed account, and will condemn the delinquent to refund the amount.

The defendant contends that his obligation to pay for the work done, does not arise ex contractd but has for its origin the law, and the same law which imposes the obligation (if any) has fixed the particular mode in which he is to become liable: not on the claim of the owners of any number of slaves employed by the syndics, without any knowlege in the plaintiff of their respective rights, which would subject him to a multitude of vexatious suits, but has postponed his liability, till an account made up by the officer who superintended the labour, shall have been presented to the investigation of the parish judge and received his approbation. and protects the delinquent till after his refusal to pay, which implies a demand by notice of a specific sum for the whole amount due for the work. This regulation of the police jury, does not leave to the owners of the slaves put in requisition by the syndic, the right of an immediate and distinct suit against the delinquent planter. It appears to us a very convenient regulation, but if its inconveniency was equally apparent, we would answer ita scripta est lex. It is true he situation of the parish treasury may occasion some delay, but the planters who composed the police jury probably considered that no one could complain of this, as if the circumstance of an empty treasury, bore occasionally hard on a number of owners of slaves, called out on a sudden emergency, the disadvantage is not equal to that of a planter, harrassed by simultaneous and numerous for claims the correctness of which he could not test with facility.

It is true, in the present case, the work was performed on a specific order of the police jury called ad hoc by the judge, who directed payment by the cubic toise, instead of the work by the day, as in ordinary cases: and the legality of the call and subsequent order has been questioned. Admitting the legality of both, as no mode of payment by the defendant was pointed out, he certainly had the benefit of any general regulations made in prci materia, not expressly or necessarily repealed by the latter.

The plaintiff was so sensible of this, that we find he finally sought and obtained his payment in the legal way.

This court is of opinion that he mistook, and the parish judge erred in sustaining his action, the judgment is therefore avoided, annulled and reversed, and it is ordered, adjudged and decreed that there be judgment for the defendant, with costs of suit in both courts.  