PEYTAVIN vs. WINTER, 6 La. 553

Martin J., delivered the opinion of the court. This case was remanded from this court at May term, 1832, on the reversal of the judgment of the District Court, and the setting aside the verdict on the ground that the amount of damages found by the jury, (one thousand dollars) was not authorised by the evidence. Vide 4 La. Rep. 46.

It is too late to present a bill of )((jSiorljyto ¿o menu^reiXred", j^aólftótho del the trial, in an action of trespass for dama$es t0 th® plaintiff's land, in w’lioh the petition alleges ownership “ntSapSyw fhe^ury^re'éí SLuoT of tie. acüInofti-¿"pa™ Í, ounces'5™ Ptho o/'tiS disregarded and p-<i on the claim for damages.

The oijectioa mony'wS'udmitcannot he° mad¿ the ground of a now trial, when no bill of exccpuonswastate&to its admission or ^r°staion made On the second trial, damages were given to the amount of one thousand five hundred dollars, and the case is again brought up by the defendant and appellants; His counsel contends that the first judge erred in refusing a new trial on the ground of the verdict being contrary to law and evidence, the damages excessive, and of illegal evidence having been introduced.

He has drawn our attention to the refusal of the judge a quo to sign a bill of exceptions, but the refusal of the judge appears to be correct, as no bill of exception was produced for his signature until after judgment. Ihe verdict is complained oí as being contrary to law m this regard; it finds the plaintiff to be the owner of the locus in quo.

The action is one of trespass, and the petition concludes A with a prayer that the defendant be decreed to desist from A entering or trespassing on the premises, and ordered to ° x o x y open and clear certain drains on his own land, and enjoined from interfering with the plaintiff’s property in the premises, and to pay damages; general relief is also prayed for. It is true the petition avers the ownership and possession oi the plaintiff of the premises; but the nature of the action was such as excludes the examination of the plaintiffs title by the jury.

Their finding and verdict in this respect was contrary to law; but we cannot say that the couit erred in denying the new trial on this account, as this part of the J ° A verdict might well have been diregarded. On the score of the verdict being contrary to evidence, it appears to us as it did last year, that the new trial was properly refused.

With regard to the testimony and evidence illegally admitted, we think the objection was correctly overruled, as no bill of exceptions show that any opposition was made at t1 . . , the trial. • As to the excessiveness of damages, the plaintiff has had ° A two verdicts; in the second, the jury were probably informed during the last trial, that we considered the damages given by the first jury as too great.

Although the second jury was jega]jy bound to give some consideration to the opinion of ibe highest court of justice in the country, they ought not to permit it to stand between God and their consciences, and , yield their opinion to ours in this respect.

I hey have exerJ x A rised this right, and the district judge by denying a new trial, though this was insisted on as some testimony in favor of their conclusion, we think duty does not require our interference on a point of fact, on which a country iury are * 7 j o o presumed to be better judges than us. not bound "by opinion of the promo Court estimating losta'a c°ieama" Tim supreme terfero in a poiut of fact in which a country jury are pi'esumed to be better judges, But we think the District Court erred notwithstanding the verdict, in giving judgment as in a petitory action.

It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that the plaintiff recover from the defendant the sum of fifteen hundred dollars, and that the latter be enjoined from trespassing on the premises or disturbing the plaintiff in his - possession thereof; and that he pay the costs in the court below; the appellee paying those in this court.