The opinion of the Court was delivered by
This is an application for a prohibition.
The petitioner complains that a suit was brought against it for two-hundred dollars, with interest from judicial demand, before the Twenty-sixth Judicial District Court; that, under its charter, Act 37 of 1877, p. 37, its domicil is fixed in the City of New Orleans, add that it is thereby provided that it shall be sued only at its domicil, except in actions of trespass, when it may be sued in the parish in which the trespass has taken place, Sec. 12 of said Act; that an exception to the jurisdiction of the court was filed, the action not being one of trespass; that the exception was overruled, the case was tried, and judgment was rendered on the merits thereof for the plaintiff therein, and that, unless restrained, said court will proceed to execute the judgment.
The gravamen of the suit in question is, that the plaintiffs therein were damaged through the carelessness and negligence of the employees-of defendants, in charge of a locomotive and of a train of cars, whereby a mule, their property, was struck and killed. The return made by the defendants in this proceeding is, that the cause of action arose from a-trespass, over which the Twenty-sixth Judicial District Court has jurisdiction, as against the defendant, in the case, both under the charter of the company and under article 165 C. P. §§ 8 and 9.
The issue raised is, therefore, simply, whether the cause of action set forth was one of trespass or not. We cannot, of course, inquire into-the correctness of the judgment on the merits.
The petitioner admits that, but for the provision of its charter, the court would have had jurisdiction, under the provisions of the article-cited, which provides that “in all eases where any corporation shall commit trespass, or do any thing for which any action for damages lies, it shall be liable to be sued in the parish where such damage is done, or trespass committed.”
The theory upon which this application is based, seems to be that the provision of the charter of the company already mentioned is inconsistent with the article of the Code of Practice, and supersedes it* *956because it is the latest expression of the legislative will, and because it is a special, which-derogates from the general, law.
Assuming next, that the provision of the charter rules, the petitioner argues that the cause of action set forth is not one of trespass, but one of trespass on the case, and quotes numerous authorities in support of that position.
We do not consider the charter of the relator as a special law. It is a private statute, requiring plea and proof to be noticed judicially. In the present instance, its existence is established, not only by the sworn averments of the petition, but by the admissions of the defendants.
Even, were it otherwise, it would not be inconsistent with the general law, the main provision of which it reiteratés, without negativing any of its parts. Both the Code and the charter authorize a suit against a corporation in the parish in which it may commit a trespass. So far, then, harmony and not discordance prevails. The charter is silent as to the liability of the company, of being likewise sued, were it to “ do any thing for which an action for damages lies.” Hence, it is argued that the inclusion of the one is the exclusion of the other.
We do not so view the matter. We think that when the Legislature uttered the charter in question it did not intend to emancipate the company from the liability of being sued in the parish in which it would do acts for which actions for damages would lie. There exists no conflict between the charter and the Code. The word “ trespass ” used in the charter was employed in its broadest sense, so as to comprehend a variety ,of wrongs having the common element of a use of force, whether direct or indirect. Cooley on Torts, p. 436 et seq.; Hilliard on Torts, v. 2, p. 1, § 1; 3 Blackstone, 208; Greenleaf 2, p. 201.
“ One of the most valuable features of our system of jurisprudence5 is the simplicity with which parties are permitted to bring their rights before the tribunals of justice. The technicalities which, in other countries, embarrass and obstruct the progress of justice, are unknown to it. All it requires is that each party shall so state his grounds of attack and defense, that the adversary shall not be taken unawares, and that the judgment which may be rendered will enable him, for or against whom it has been given, to protect himself by the plea of res judicata.” 23 An. 676.
Oonceding that the case presented is one of trespass on the case, we consider that it comes wit-bin the purview of both the Code and the charter. Were it not so, there never would arise an instance, in which the defendant company could be sued at all for trespass, it being a fictitious, juridical being, which never could commit such, acting necessarily by the agency of others.
We cannot admit that the legislative use of common law térms has *957introduced in our system the practice in relation to them. 3 M. 186; 7 N. S. 164; 16 L. 389.
It is manifest that, if the company were to satisfy the judgment rendered against it and complained of, the claim in the case being for damages sustained in consequence of a trespass committed under its responsibility, such payment could be successfully pleaded in bar of another suit, for the same damages, if alleged to have resulted from a ' trespass on the case.
We think the District Court had jurisdiction, the cause of action set forth being One of trespass within the proper intendment of the charter of the relator.
It is, therefore, decreed that the preliminary restraining order herein made be rescinded, and that the application for a prohibition be refused with costs.
Behearing refused.