stipulated interest by an earlier payment." The defendants' counsel complains of the reasons assigned, as being insufficient, and of the decision itself as being an isolated one, and unsupported by subsequent opinions. To our thinking the reasoning is ample, and, while a single decision cannot be considered as having the force of stare decisis, it is entitled to due weight and consideration. We have no hesitancy in maintaining that the view therein so concisely expressed is strictly applicable to and as decisive of the question in hand.

15. While it is true that mention is made, eo nomine, neither in the petition of the property holders, the specifications, ordinances, nor the contract, of the provisions of act 73 of 1876, it does not follow that they were not in the contemplation of the parties thereto, mainly for the reasons assigned in the answer of the plaintiff's counsel to the defendants' exception. Vide paragraph 1. If, as the plaintiff assigns, it relied upon them for its remedies in the enforcement of its contracts, and for the ascertainment of the proportionate share of the cost of the work due by the abutting proprietors only, and upon those of the city charter as to all matters of form only, was it not expedient that the latter should have been mentioned in, and the former omitted from, the acts and proceedings? We think so. We said, in answer to defendant's fourteenth objection, that it was unnecessary that the proportionate share of the cost of the work due by the proprietors should have been stated. If not, why should the law have been referred to? Vide paragraph 14, supra. 16 and 17. These two objections need not be discussed, because they have been already eliminated from the argument, by reason of the city having acted under the sanction and authority of the special and exceptional provisions of section 32 of act 20 of 1882, and section 2 of act 73 of 1876, and not by virtue of the general powers of the council. Vide paragraph 11. Burgess v. City of Jefferson, supra.

18. The defendant's counsel insists that he is at most only liable for onehalf of the cost of the pavement in his front, and not for two-thirds thereof, as claimed by the plaintiff. Section 2 of act 73 of 1876 establishes the plaintiff's right to claim two-thirds, and in paragraph 2 of this opinion we hold that it is unrepealed, and in force pro tanto.

19. Counsel proposed to amend their answer so as to specially aver defendant's exoneration from all liability by reason of the fact that the city ordinance and contract designate the portion of St. Charles avenue on which pavement was to be laid as extending "from Lee Circle to Carrollton;" that this designation was not intended to include that part of the city which is ordinarily designated as Carrollton, of which Lower Line street is the lower limit; and "that his property is situated at the upper end of Carrollton." The amended answer was disallowed by the court a quo, and defendant's counsel retained a bill of exceptions. During the progress of the trial defendant's counsel offered evidence by which to prove what was the understanding of the plaintiff and property holders at the time the work was in progress, with regard to its upper terminus, and it was admitted over plaintiff's objection and exception. Without traversing these rulings, it will suffice to say that we consider this defense only an after-thought, and of little practical importance, inasmuch as the defendant's original answer places an interpretation on the phrase "from Lee Circle to Carrollton" exactly opposite to that proposed in his supplemental answer. We quote from the original brief of the defendant's counsel the following paragraph, as taken from that answer, viz: "The petition, such as it was, on the part of the signers and those interested, intended to and did ask for the paving of St. Charles avenue from Lee Circle to Madison avenue, Carrollton, and this petition was so published for the aforesaid purpose of serving as a basis for a contract for the paving of the whole of St. Charles avenue,' as understood as aforesaid; and, notwithstanding the foregoing, the contract, as now sued on, was awarded and executed for

the paving of certain portions of said avenue, the whole of the road-way, river, or swamp side, from Louisiana avenue to Carrollton, being excluded, and not paved." Brief, p. 11. That part of the specifications furnished by the city surveyor referring to "road-ways" stipulates that the portion of St. Charles avenue to be paved shall be "twenty-four (24) feet wide between Louisiana avenue and Madison streets," and that the width of the sidewalks shall be, "between Lee place and Louisiana avenue, eighteen feet; between Louisiana avenue and Lower Line street, or Carrollton, sixteen feet, (16;)- and between Lower Line and Madison streets, ten (10) feet." If anything were needed to further enforce this language, it is supplied by the plain and unambiguous terms of the notarial contract, which is as follows, viz: "Said T. Tupper declared that, acting for and in behalf of said Barber Asphalt Paving Company, and on the terms and conditions and for the considerations herein set forth, he agrees for, and binds, said Barber Asphalt Paving Company to pave with sheet asphaltum both sides of St. Charles avenue from Lee place to the upper side of Louisiana avenue, and the east or river side of St. Charles avenue, from Louisiana avenue to Madison street, Carrollton." Reference to the sketch which was introduced in evidence by the defendant's counsel discloses that Madison avenue, Carrollton, intersects St. Charles avenue at an angle slightly acute, and immediately above the New Orleans & Carrollton Railway Station on one side and the defendant's Carrollton garden and hotel on the other side. According to this sketch, the upper terminus of the pavement to be laid in pursuance of plaintiff's contract was the upper limit of the defendant's property, and not Lower Line street, as contended by defendant's counsel, it having anciently been the lower limit of the town of Carrollton, prior to its legislative incorporation into the city of New Orleans.

This argument includes, incidentally, the discussion of the final proposition, that the defendant is entitled to a credit for the cost of the construction of 25 feet of pavement, in that he is sued for the cost of a frontage of 325 feet from Carrollton avenue to Dublin street, whereas that frontage is only 301 feet. This deficit is claimed as being a deduction for the width of Dublin street. That might be correct, if Dublin street intersected or separated the defendant's property; but the said sketch shows that it does not. The testimony of the city surveyor confirms this conclusion. "Question. About how many feet-Madison avenue and St. Charles avenue both being extended in direct lines-how much extension would be necessary for Dublin street to run into St. Charles avenue? Answer. About fifty or seventy-five feet between the two. I stepped it off, about two Sundays ago." On this point the district judge says: "The certificate of the city officers covers a distance of 325 feet from the corner of Carrollton avenue towards Madison street, and embraces some 24 or 25 feet of frontage which faces the open end of Dublin street. I can see no error in the certificate. Dublin street does not cross St. Charles avenue, but stops short upon the north side; hence there is no intersection, and the defendant is liable for the paving upon that part of his front, just as on any other part."

After a most careful examination of the record and the elaborate briefs of counsel, and a deliberate and critical review of all the authorities cited, we feel constrained to say that the finding of the judge a quo in favor of the plaintiff was correct. Judgment affirmed.

Rehearing refused.

YOUNG v. DUNCAN et al.

(Supreme Court of Louisiana. January, 1887. 39 La. Ann.)1

ATTORNEY AND CLIENT-ATTORNEY'S LIEN-COURTS-JURISDICTION.

The court has no jurisdiction of a suit instituted to have an attorney's privilege for his fee for less than $2,000 recognized on a judgment exceeding that sum.

Appeal from district court, parish of Tensas.

The original opinion in this case was not published in the state reports. Kennard, Howe & Prentiss and Steele & Garrett, for defendant and appellant. Plaintiff, in pro. per., appellee.

ON REHEARING.

TODD, J. Further reflection has satisfied us that this case is not within our jurisdiction. This is a suit to have recognized and enforced a privilege for $1,650 on a certain judgment described in the pleading. It was accompanied by an injunction, taken out against the judgment debtor, to prevent him from paying, compensating, or in any manner extinguishing the judgment on which the privilege was claimed. The judgment in question exceeds the sum of $2,000. If the suit was simply to recover a debt of $1,650, of course it would not be contended by any one that such a suit would be within the jurisdiction of this court. The privilege claimed does not enlarge the demand, but is exactly commensurate with it; nor is it affected by the injunction, since it is only invoked as a means of the preservation and enforcement of the privilege.. The petition for its issuance contains no demand for money in the way of damages or otherwise, nor does it enjoin the party from doing or omitting to do anything which would cost him a single dollar. As stated, it is simply and purely a suit to enforce a privilege on a judgment exceeding in amount the privilege claimed. It does not seek to alter or annul that judgment to any extent. If this were a suit to enforce the vendor's, lessor's, or any other kind of a privilege, though the action might be directed against property ten or a hundred fold greater in value than the amount of the demand, there could be no possible pretense that the value of the property could invest this court with jurisdiction. It is not contended that there is anything in the nature or character of a judgment that puts it on a different footing from other property. So far as relates to the question as presented in this case, the fact that it is a judgment is of no significance whatever. A judgment may be the subject of a privilege, and it may be seized and sold to satisfy it, like any other property.

The question of jurisdiction here presented is very analogous to that involved in a revocatory action. The creditor in such action has no privilege on the property against which the action is directed, but he has something that is equivalent to it. He asserts the right to have the sale of the property revoked in order that his debt may be paid out of it, and the property declared subject to his debt. In such an action it has been repeatedly held that the jurisdiction of this court is not determined by the value of the property which is sought to be reached by the creditor, but by the amount of his demand. So where, as in this instance, a creditor is seeking to save his debt by fastening a privilege on property exceeding the value of his debt, the jurisdiction of this court is determined, not by the value of the property, but by the amount of the debt claimed. But, as a conclusive test of this matter, suppose that Mr. Duncan, the defendant in the suit, either before or after its institution, had stepped forward, and paid to Mr. Young, the plaintiff, the amount of his demand, say $1,650, would it not have extinguished his demand in toto, and left surviving to him no right or cause of action whatever in whole or in part? There can be but one answer to this question.

'Publication delayed by failure to receive copy of opinion.

It thus plainly appears that this court has no jurisdiction over the contro

versy.

It is therefore ordered, adjudged, and decreed that the decree of this court heretofore rendered in this cause be annulled and set aside, and it is now adjudged and decreed that the appeal be dismissed, at the cost of the appellant.

LALLANDE v. TREZEVANT et al.

(Supreme Court of Louisiana. June, 1887. 39 La. Ann.)1

Appeal from Eighth district court, parish of Madison; DELANY, Judge. For majority opinion, see 2 South. Rep. 573.

Stone & Murphy, for appellant. E. C. Montgomery and A. L. Slack, for appellees.

TODL, J., (dissenting.) The defendant Mrs. Trezevant enjoined the sale of 20 mules, seized under executory process, together with a plantation, as the property of her husband, George T. Trezevant, claiming to be the owner of the same. During the pendency of the injunction suit she was permitted to take possession of the mules, and retain the same until the final decision of the cause. Her injunction was dissolved by a decree of this court. After this decree 18 of the mules were delivered to the sheriff, and by him sold. The present suit was then brought by the plaintiff against Mrs. Trezevant and G. W. Montgomery, the surety on her 'injunction bond, to recover the damages caused by the injunction; the bond being for the amount of $1,475. The damages set forth in the petition were: (1) For the difference in the value of the mules when seized and the amount for which they sold after the injunction was dissolved; (2) for the costs of the injunction suit, and those incurred in the sale of the mules after the dissolution of the injunction; (3) the attorney's fee in the injunction suit. These damages are set forth in the petition as amounting to $2,531. The appellees in the motion to dismiss charge that these claims are largely fictitious, and only asserted to give jurisdiction to this court; that, for instance, the large sum claimed for costs, and sought to be recovered as damages, was covered by the judgments which dissolved the injunction wherein Mrs. Trezevant was condemned to pay these costs, and that there could not be a separate suit and second judgment for this same charge. As confirmatory of this view, and of the proposition embraced in the motion to dismiss and urged by the appellees' counsel, we need only refer to the brief of the plaintiff and appellant's counsel, in which he sums up his actual demands, and all that he now claims he should have judgment for, thus: The plaintiff hal judgment in the lower court for $200. In addition thereto his counsel claims $873.25; the loss on the mules; certain items of costs stated, -the whole amounting, according to his calculation, to $1,502.75, which is the total amount he claims to be entitled to, and for which only he asks that judgment shall be rendered.

This statement plainly shows to my satisfaction that this court has no jurisdiction of the cause, even as to Mrs. Trezevant, the principal on the injunetion bond. But the want of jurisdiction of this court as to the demand against the surety, Montgomery, is still more conspicuous. The full amount of the bond is $1,475, and for all damages caused by the injunction the full limit of his liability is that amount,-the amount of his obligation. Beyond that he cannot be held under the law. On the delivery bond on the face of the petition he cannot be held except for the value of two mules, not delivered, $220. Add this to $1,475, making $1,695. So that to this sum there

'Publication delayed by failure to receive copy of opinion.

is an absolute limit to his liability. Certainly all beyond that can only be held as purely fictitious.

For these reasons I dissent from the opinion to dismiss, and, thus dissenting, take no part on the merits.

Ex parte KING.

(Supreme Court of Alabama. April 15, 1889.)

BAIL-WHEN ALLOWABLE.

Under Const. Ala. art. 1, § 17, granting bail, except for capital offenses "when the proof is evident or the presumption great," one committed for murder is entitled to bail, where the evidence shows that deceased was the aggressor, was violent and boisterous, and was pressing on defendant with sufficient force to stagger him, when defendant shot him; and that defendant first endeavored to allay deceased's anger, though there was also evidence that defendant had previously said that, if deceased "ever made a break at him, he would kill him."

G. L. & H. T. Smith, for petitioner. W. L. Martin, Atty. Gen., for the State.

STONE, C. J. This is an application for a writ of habeas corpus on appeal from a ruling of the judge of the city court of Mobile.

The petitioner, King, was committed to prison by the mayor of Mobile, acting as a committing magistrate, on a charge of murder. Petitioner was carried before the judge of the city court by writ of habeas corpus, and the testimony was there heard. The purpose of the application was to obtain the prisoner's enlargement on bail. The application was denied, and the prisoner remanded to jail.

The testimony shows clearly and unmistakably that King did not provoke the difficulty, but that, to all appearance, he desired to avoid it. All the testimony tends to show that Popham, the deceased, was the aggressor, and that he was both violent and boisterous. At the time the shot was fired he was pressing on King, and struck him with sufficient force to stagger him, when King immediately shot and killed him. If this were all the proof, it is probable there could, at the utmost, be no pretense that the homicide was murder. The witness O'Grady testified that a few months before the homicide he heard King, the defendant, say if Popham, the deceased, "ever made a break at him, he would kill him." This, followed up by the homicide, would ordinarily supply the element of formed design. And if King had provoked the difficulty, or had entered willingly into the quarrel, this would go far to show that he killed Popham pursuant to that formed design. The testimony, however, tends to show that he not only did not provoke the difficulty, but that he endeavored to allay Popham's anger, and to avert the rencontre.

In the meager state of the testimony furnished us, we are not able to affirm that "the proof is evident or the presumption great" that the homicide was a "willful, deliberate, malicious, and premeditated killing." Const. Ala. art. 1, § 17; Code 1886, § 3725. We wish not to prejudge the case, nor to so far pronounce on its merits as to control its determination, when a fuller presentation of the facts will probaly be made, and the jury will be assisted by the arguments of counsel. All we decide is that, on the testimony before us, it is not shown that the defendant is guilty of murder in the first degree,the only grade of homicide which may be punished capitally, and which precludes the accused from obtaining bail. The writs of habeas corpus and certiorari will be awarded to bring the prisoner and the record of commitment before this court, unless, on this ruling, the petitioner elects to renew his application before a court of primary jurisdiction, having jurisdiction in the premises.