text:
    No. 11,148.
    State of Louisiana vs. M. Fourcade.
    l. Tlie powers conferred upon the Common Council of New Orleans by the 7th section of Act No. 20 of 1882 (the city charter) are not suspended by the provisions of Act No. S2 of 1SS2.

      2. The Legislature may delegate to municipal corporations power to adopt and enforce ordinances on matters of special local importance though general statutes exist relating to the same subjects. The same act may constitute a crime against the public law of the State and also a petty offence against a municipal regulation. The two offences in suelija case being different each may be punished without violation of the constitutional prohibition against placing a person twice in jeopardy for the same offence.
    3. Violations of municipal ordinances constitute a class of offences that are in general throughout the country proceeded against summarily, and the right of trial by jury can not be constitutionally demanded.
    4. The question of fact which the Supreme Court is required under Act 81 of the Constitution of 1879 to examine into in respect to the legality or constitutionality of a fine, forfeiture or penalty are those which are necessary to be investigated for the purpose of determining those questions as to the fine, forfeiture or penalty imposed in an ordinance of a municipal corporation, not those which if the ordinance be upheld go to establish the guilt or innocence of the accused under, the ordinance.
    5. The General Assembly in conferring upon the Common Council of New Orleans the power it did in its charter, contemplated that it would adopt a standard of adulteration as to drinks, and that adoption by it not being shown to be unreasonable or arbitrary, or as passing beyond a fair measure of correction for the evil against which it seeks to guard, is upheld.
    APPEAL from the First Recorder’s Court of New Orleans. Whitaker, J.

      Louque & MeGloin for Board of Health, Plaintiff and Appellee:
    1. Act 82 of 1882, regulating adulteration of food, is a general statute, not impairing the force of Act 20 of 1882, in so far as the latter empowers the city of New Orleans, within its own limits, to deal with the same matter. 39 An. 513; also State vs. Callac, recently decided.
    2. A municipality with legislative sanction may impose a penalty upon any act committed within its own limits and against the health or peace of its citizens, even though the State, by statute, has likewise imposed a penalty upon the same act. Nor does prosecution under one of these prohibitions bar prosecution for the same act under the other. American and English Encyclopedia of Law, Vol. 17, p. 252; Cooley, Constitutional Limitations, p. 242 (199); Dillon, Municipal Corporations. Sec. 301; 46 N. W. Rep. 735; 30 An. 454.
    3. The city of New Orleans is competent to fix a standard for pure milk, and to prosecute those selling milk which falls below such standard.
    4. A proceeding before a recorder of the city of New Orleans for the enforcement of a police ordinance of the city is not a criminal proceeding, hence Arts. 5, 6 and 8 of the Constitution of this State do not apply to them. 4 An. 337; 2 La. 427; 43 An. 836; 42 An. 1112; 42 An. 272; 35 An. 1193.
    5. A chemist’s certificate of analysis, if he be a sworn officer, is admissible in evidence in prosecutions for milk adulteration. 11 Allen (Mass.), 264.
    6. In prosecutions of this kind it need not be declared or shown that the accused was cognizant of the fact that the milk sold was adulterated. 132 Mass. 11; 103 Mass. 444; 9 Allen, 484; 10 Allen, 199; 11 Allen, 264; 10 R. 1.258 ; 6 Park, Or. (N.Y.) 355. 7. Vendors of milk may be compelled to furnish sample for inspection, and this without compensation, offered or made, for such samples taken. 132 Mass. 14; 2 Metcalf, 829, 337; 126 Mass. 269; 126 Mass. 433, 441; 6 Gray, 434; 12 Sup. Ct. Hep.257.
    P. L. Fourehy and Albert Voorhies for Defendant and Appellant:
    1. Broad distinction in Constitution, Art. 81, between, on the one hand, appeals from municipal courts to the Supreme Court in cases, civil-and criminal; and, on the other, appeals from State courts in criminal offences.
    2. Act of 1882, Ho. 82, does not repeal any portion of the city charter; but when the State subsequently exercises herself some police power delegated among others to the city, the latter’s right to exercise her delegated authority is, for the time being, and to the extent of the State action, suspended or superseded.
    3. The Act of 1882, Ho. 82, applies to the whole State, and more particularly to the parish of Orleans, wherein is located the State Board of Health. The whole statute teems with provisions which virtually, and eo nomine, require the action of that board within the limits of the city of New Orleans to enforce this very statute.
    4. When an act is denounced by the State as a State offence, in the exercise of police powers, the municipality has no right, in the exercise of police powers, to duplicate the offence by converting it also into a municipal offence. Won bis in idem. State vs. Miller, 7 An. 651, is a correct exposition of the law in this respect.
    5. The city of New Orleans has no power but such as is delegated- to her by the State, and the State may at any time, in its own discretion, withdraw, modify, suspend or supersede, for a limited time or absolutely, the exercise of such delegated power.
    6. The standard of adulteration fixed by the State is binding upon the whole State, and more particularly in the city of New Orleans. The arbitrary and so-called scientific standard or formula of adulteration adopted by the city is illegal, because—
    First, it is in conflict with the standard fixed by the State; and secondly, the city ordinance establishes a presumption juris et demure of guilt against any one who does not literally comply with its provisions.
    7. The act denounced by the ordinance is an offence, as much so as when denounced by the State, In the former case it falls within the criminal jurisdiction of city recorders, while in the other within the criminal jurisdiction of State courts.
    8. In the State courts there is jury trial, with all the solemnities of criminal prosecutions.
    In the municipal courts there is summary trial without jury.
    In both instances, however, there is a criminal prosecution, and never a civil proceeding.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendant was charged with having on the 20th November, 1892, violated Ordinance 6596, O. S., by selling watered or adulterated milk in the city of New Orleans.

Through his counsel he pleaded an exception or demurrer in which he declared that he was ready and willing to be tried under the laws of the State of Louisiana for the State offence charged against him as a municipal offence, but that he demurred to the pending municipal prosecution on the grounds—

That said city ordinance under which this prosecution is carried on is unconstitutional and illegal, as it conflicts with the Constitution of Louisiana, Arts. 5, 6, 7, 8, 92 and 155 — as it conflicts also with acts of Louisiana of 1880, No. 20, and of acts of 1882, No. 82, and other State law in pari materia.

That said city ordinances No. 6022 (1879), No. 6533 (1880), No. 6596 (1892), annexed to the exception, are in conflict with the federal Constitution, Amendment 14, Sec. 1, in this, that it deprives the accused as one of a class of retail milk vendors from the equal protection of the laws of the State; that it singles out one occupation (milk commerce) and submits it as a class to a special mode of prosecution before a recorder's court without the benefit of jury, while on the other hand all other classes or occupations are to be prosecuted for a State offence and to be tried by jury.

That the same act imputed to defendant under the laws both organic and ordinary of the State can not be made a double offence punishable twice, either simultaneously or otherwise; that the State laws cannot create such an anomaly, nor can the municipal ordinance of a creature of the State having no authority but that which is specially delegated to it by the State itself be an exception, but on the contrary the case is more objectionable.

That said city ordinance is ultra vires in so far as it is in conflict with acts of 1880, No. 20, and acts of 1882, and other State laws in pari materia, and also to the extent that it attempts to duplicate the action of the State with the new methods of prosecution, and that in face of these statutes punishing the adulteration of milk as a State offence the municipality can not constitutionally make it a municipal offence, and that said First Recorder’s Court is without jurisdiction in the premises.

That the accused can not thus be put twice in jeopardy for acts which, if true, would constitute the same offence for which he will be undergoing trial simultaneously in a State court and a municipal court. Art. 5, Const.

That by said municipal ordinance the accused is deprived of liberty and property without due process of law. Art. 6.

That the municipal ordinance divests the accused of his vested rights of property and in merchandise without due process of law and without adequate compensation previously made (Art. 155), and makes it an offence for him not to give away his property at the bidding of a police officer.

That said ordinance establishing a test in the adulteration of milk is unconstitutional and illegal, in violation of the laws of the State of Louisiana, and more particularly of the act of 1882, No. 82.

This demurrer was overruled by the court.

Defendant then filed a second demurrer to the effect “that city ordinances No. 6022, A. S.; No. 6533, A. S., and No. 6596, A. S., are illegal, because the State of Louisiana, by acts of 1880, No. 20, and by acts of 1882, No. 82, and by other acts in pari materia, has taken and resumed exclusive control and jurisdiction for itself of all the matters of offence and punishment contained in said State legislation in antagonism with or on the same subject matter of these municipal ordinances; that the passage and effect of said statutes are to render illegal, null and void for the time being said ordinances, and that as long as said statutes are in force the said city ordinances are branded with illegality and unsusceptible of enforcement.”

The court overruled these objections.

On trial of the case on its merits the court found the accused guilty as charged and sentenced him to pay a fine of $25, and in default of payment to imprisonment in the parish prison for a term of thirty days.

He has appealed to this court.

The first point made in defendant’s brief is that by reason of his having in the lower court drawn in question the constitutionality and legality of the ordinance, for the violation of which he has been convicted, this case has been brought to us in all its details of law and fact, including the evidence taken on the trial on which — assuming the ordinance to be legal and constitutional — the recorder founded his judgment touching the guilt of the accused under it.

In support of that position he relies upon the phraseology of Art. 81 of the Constitution of 1879 and upon an expression found in the case of State vs. Dean (not yet reported) , where, referring to that article in connection with the cause then before us, we said: “The case must involve a question of the unconstitutionality or the illegality of the city ordinance under which the defendant and appellant is being prosecuted, and hence the constitutionality of the fine or penalty which is imposed is drawn in question, otherwise the appeal is not examinable on either law or fact. If, however, the appeal presents such a question of constitutionality or legality of ordinance and penalty, the fact as well as the law are open to examination.”

Article SI of the Constitution declares that the Supreme Court’s jurisdiction shall extend “ to all cases in which the constitutionality of any tax, toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof, and in such cases the appeal on the law and the fact shall be directly from the court in which the ease originated to the Supreme Court.”

Counsel of defendant is mistaken in giving to the sentence in the case of the State vs. Dean the scope he does. Only a few months prior to this we had said in State vs. Callao (Ante, p. 27), which was an appeal from a conviction under a city ordinance: “In such case our jurisdiction is confined to an examination and determination of the legality and constitutionality of the ordinance under which said fine and imprisonment were imposed. With the evidence in the case on which the recorder founded his judgment we have nothing whatever to do.”

The only object the court had in the Dean case was to show that as presented to it there was involved in it neither questions of law nor of fact under Article 81 of the Constitution. When it declared that should a case come before it involving a question of law or of fact, or of both under that article, it would deal with it, the court simply followed the wording of the article itself.

The fine, forfeiture or penalty whose constitutionality or legality this court is directed to examine into and pass upon regardless of amount is that imposed by the City Council in the ordinance, and not that imposed by the recorder under it when legal on the evidence and facts of a special ease going to show that a particular person had violated its provisions.

Were defendant’s position correct this court would be converted practically into a court of appeals as to infractions of the most trivial ordinances of all the municipal corporations in the State, at the instance of persons convicted thereunder, whilst persons convicted of State crimes are permitted to appeal simply on questions of law, and then only where the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding $300 has been actually imposed.

The “ questions of fact ” which we are called upon to examine are those which are essential to be examined for the purpose of determining the constitutionality or legality of the fine, forfeiture or penalty imposed by the city itself.

A municipal ordinance imposing a fine or penalty may, from the standpoint of the regularity of all the proceedings leading up to' and inclusive of its enactment, be absolutely faultless, and yet the ultimate act done or enacted may be inherently or intrinsically illegal or unconstitutional. On the other hand the latter may be perfectly unassailable, and yet the ordinance be illegal or unconstitutional by reason of some fact or circumstance connected with its passage. It may, for instance, have been presented in a wrong manner at a wrong time, or not voted for as directed by law. It is to facts of this cl ass or character that Art. 81 of the Oonstitution refers when it says that “the appeal on the law and the fact ” shall be directly .to the Supreme Court.

The distinction between the illegality of a fine, forfeiture or penalty imposed by the municipal corporation and the correctness of that imposed by the recorder, and between the illegality of the ordinance and that of proceedings or action taken under it, is plain and broad and has been repeatedly recognized by us. The two cases already cited of State vs. Oallae and State vs. Dean both refer to it.

In Favrot vs. Baton Rouge, 38 An. 230, a suit which presented the question of the legality of a tax, and in which the tax was resisted on the further ground of the illegality of the assessment and irregularities in the mode of levying and collecting the tax, this court said “ it would entertain the appeal on one branch of the contestation — the illegality of the tax — and ignore the appeal on the other branch of the case.”

The same doctrine is announced substantially in Gillis & Kennet vs. Clayton, 36 An. 285; Stubbs vs. Maguire, 33 An. 108; State ex rel. Rivet vs. Judge, 36 An. 286; Cobb vs. Tax Collector, 36 An. 801; Adler, Goldman & Co. vs. Board of Assessors, 37 An. 898; Minor vs. Sheriff, 38 An. 99; New Orleans vs. Schonhausen, 38]An. 237; Bush & Levert vs. Police Jury, 39 An. 899.

If on an examination of this case we find the ordinance attacked to be illegal and unconstitutional the judgment of the recorder will necessarily have to be set aside, and defendant will have no interest in presenting to us the evidence taken on the trial; if, on the other-hand, we maintain the legality of the ordinance, then in so doing we exhaust our powers and reach the limit of our inquiry.

The next position maintained by the defendant is that the city of New Orleans has no powers but such as are delegated to her by the State — that the State may at any timejin its own discretion withdraw, modify, suspend or supersede for a limited time or absolutely the exercise of such delegated power, and therefore whilst the section of the city charter (Sec. 7 of Act No. 20 of 1882) which authorizes it “to prevent the sale of adulterated drinks ” is not repealed by Act No. 82 of 1882, yet in the Act No. 82 the State took jurisdiction itself over the subject matter, and by so doing the powers of the city were suspended, and would remain in abeyance and dormant so long as the State statute was in force, but “ awaking the moment it is repealed.”

In defendant’s brief it is said that the power delegated to the city would have justified it in passing Ordinance 6506 (the ordinance attacked) had not the State superseded or qualified exercise of the power by exercising it itself in its sovereign capacity.

In the case of State vs. Labatut, 39 An. 514, and State vs. Callao, (Ante, p. 27) , we held that the powers of the city of New Orleans under the section referred to were not repealed by the act of 1882. That statute has no repealing clause, and therefore it was urged that there was such a “conflict” between its terms and those of the city charter that there was an implied repeal, and the powers of the city could no longer be legally exercised.

The same argument is urged in the case at bar, though under a change of expressions; instead of claiming that the powers have ceased by “repeal," it is now contended that they are withdrawn by “ suspension." In all the cases, however, the argament rests upon a “ conflict” which we have held does not exist. We see no reason for altering our views as expressed in the opinions rendered in the decisions mentioned. Defendant urges that he is charged with an act which the city contends she has the right to punish, although the identical act is for the same purpose deuounced and punished as a State offence and that for the same act which the State has made a State offence, the municipality has no right to institute a municipal prosecution and punish as a municipal offence, and that the State having now constituted the offence one against the State, he can not through the instrumentality of the ordinance be deprived of his constitutional rights of being charged only through an indictment or an information, and of being tried by jury. Defendant in this position assumes that the offence charged as a violation of the city ordinance is identically the same as that which would be charged by the State for the same act through an indictment or information; and further assumes that the moment the Legislature declares that the commission of a particular act shall be punishable by the State as a State offence, the commission of the same act, which up to that time as being violative of a municipal ordinance would be, in the strictest sense, a municipal offence, and triable as such, must cease to be so triable, and the procedure in regard to the prosecution be forced to conform to the constitutional requirements which govern State crimes.

In the case of Mclnerney vs. City of Denver, 29 Pacific Reporter, 516, this subject received a very exhaustive examination, and from the opinion rendered therein by Mr. Justice Helm we quote very freely. He said, speaking for the Supreme Court of Colorado:

“ Great reliance is placed upon the proposition that, since by general statute the act with which petitioner is charged is made a misdemeanor, punishable by indictment or information, trial by jury, etc., the ordinances involved are obnoxious to a number of constitutional provisions touching criminal cases. The Legislature may undoubtedly delegate to municipal corporations power to adopt and enforce by-laws or ordinances on matters of special local importance, even though general statutes exist relating to the same subjects. An ordinance must be authorized and must not be repugnant to a statute over the same territorial area; but if there be no other conflict between the provisions of the statute and ordinance save that they deal with the same subject, both may be given effect. The resulting or correlative doctrine is now too firmly established to admit of serious question: that the same act may constitute two offences, viz.: a crime against the public law of the State and also a petty offence against a local municipal regulation. The weight of authority likewise fully sustains the view that a prosecution and punishment for one of these offences is no bar to a proceeding for the other, though if it be not so provided by statute every fair-minded judge will, when pronouncing judgment in the second prosecution or proceeding, consider a penalty already suffered. Since the act constitutes two offences against separate’ jurisdictions, it is analogous to those cases where the same act is punishable under a congressional statute and also under a State law. The offences being different there is no violation of the constitutional inhibition against putting one twice in jeopardy for the same offence.”
“ These views are sustained by the following among other authorities :
“ Cooley’s Constitutional Limitations, 5th Ed., 241, 242, and Note 1; Dillon Municipal Corporations, Secs. 367 and 368, Note 1; Bishop Statutory Crimes, Sec. 23; Wharton Criminal Pleading and Practice, Sec. 410; Hughes vs. People, 8 Colorado, 536; State vs. Lee, 29 Minn. 453 (13 N. W. Rep. 913); Waldo vs. Wallace, 12 Ind. 569; State vs. City of Topeka, 36 Kansas, 76 (12 Pacific Rep. 310) ; Greenwood vs. State, 6 Bast. 567; Howe vs. Treasurer, 37 N. J. Law, 145; Mayor, etc. vs. Allaire, 14 Ala. 400; Hamilton vs. State, 3 Texas App. 643; Shafer vs. Mumma, 17 Ind. 331; State vs. Ely, 4 Orr. 277; Johnson vs. State, 59 Miss. 543; Wragg vs. Penn Tp., 94 Ill. 11; McLaughlin vs. Stephens, 2 Cranch C. C. 148; City vs. Cafferata, 24 Mo. 96; Rogers vs. Jones, 1 Wend. 238; Cross vs. North Carolina, 132 U. S. 131 (10 Sup. Ct. Rep. 47).”

To these may be added, Am. and Eng. Encyclopedia of Law, Vol. 17, p. 252, and People vs. Detroit White Lead Works, 82 Mich. 471 (46 N. W. Rep. 735); State ex rel. Geale vs. Recorder, 30 La. An. 454.

When we come to an examination of the second branch of the question we have just alluded to, we find that Ordinance No. 6596 of the Common Council does not attempt to determine how or before what tribunals persons charged with its violation shall be tried. It simply declares that said fine or imprisonment is to be enforced by any court of competent jurisdiction within the corporate limits of the city of New Orleans.

If this case was lodged in the Recorder’s Court it was not by virtue of any authority to that effect given in the ordinance itself, but under the authority of Sec. 49 of the city charter (Act No. 20 of 1882), a State law.

Under that section recorders have the jurisdiction of committing magistrates and to enforce all city ordinances, and to try, sentence and punish all persons who violate any legal and valid ordinance, and in See. 50 all fines, penalties and forfeitures imposed by said recorders are to be collected by them and paid to the city treasurer.

The power or right of the Legislature to confer such authority is expressly provided for, as was said in Mayor vs. Meuer, 35 An. 1193, by Arts. 92 and 136 of the present Constitution.

In that case the court said: “-The distinction between crimes against the State and mere violations of municipal ordinances, and the bearing of the constitutional provisions referred to touching the respective modes or methods for the prosecution and punishment of offences against the same, is clearly recognized by elementary writers on the subject and confirmed by frequent adjudications,” and in support of that statement cited numerous authorities.

The matter had been fully examined before that case in State, vs. Gutierrez, 15 An. 193, and State vs. Noble, 20 An. 326.

In the case of Mclnerny already cited, this particular question was investigated, and the court announced its views as follows:

“ Whatever may be the view concerning the gravity of the offence against a State law, the very fact that the Legislature authorizes the city to deal with the same subject by ordinance indicates that to the legislative mind the act also properly constitutes one of those petty offences regarded as local injuries. The public welfare requiring the maintenance of peace and good order as well as of careful sanitary regulations in cities and towns renders summary proceedings in many cases a necessity, and we are not now prepared to inaugurate the revolution that must follow the announcement of the doctrine that a jury trial is an indispensable prerequisite. It is hardly necessary to say that such a trial is not always essential to ‘ due process of law.’ * * * An ordinance is not in the constitutional sense a public law. It is a mere local rule, or by-law, a police or domestic regulation, devoid in many respects of the characteristics of public or general laws. The inquiry, therefore, is not was the act complained of a public misdemeanor by statute, or at the common law, but does the offence charged belong to a class of offences that were usually proceeded against summarily. A careful examination of authorities has led us to the conclusion that both in this country and in England the transgression of municipal regulations enacted under the police powefc for the purpose of preserving the health, peace and good order, and otherwise promoting the general welfare within cities and towns, had for more than a century prior to the adoption of our Constitution been generally prosecuted without a jury.” See cases already cited; Sedgwick St. and Const. Law, pp. 496-497; also notes on pp. 487 and 491; Pom. Const. Law, Sec. 246; Proffat Jury, Sec. 95; Ex Parte Hollwedell, 79 Mo. 400; State vs. Conlin, 27 Vt. 318; Byers vs. Com., 42 Pa. Stat. 89; State vs. Glenn, 54 Md. 572: Ex Parte Kiburg, 10 Mo. App. 447; People vs. McCarty, 45 Howard Pr. 97; McGear vs. Woodruff, 83 N. J. Law, 215; Inwood vs. State, 42 Ohio Stat. 186; Hill vs. Major, 72 Ga. 319; Ward vs. Farwell, 97 Ill. 593.

Defendant in general terms attacks the city ordinance as being unconstitutional, illegal and violative of the laws of the State, particularly of Act No. 82 of 1882. He should have pleaded and shown with particularity in what respect it was unconstitutional and illegal. We gather from his brief that the specific objection made is that the State having, as he declares, adopted a standard of adulteration, it was the duty of the municipality to have made its own standard identical with that of the State, and that the two standards not being identical, that of the city by reason of that fact is illegal.

We have already said that the offence charged against the defendant is a separate and distinct offence from that which would have been charged under the State law. The standard which defendant relies upon, is by the very terms of the law, adopted exclusively for the class of cases falling under it and as descriptive of a State offence.

When the General Assembly conferred upon the city .of New Orleans the general powers it did over the subject of the health of that city and its maintenance, there was no State law on that subject and the Legislature contemplated that the council should adopt some standard.

It was not only the right but the duty of the council to adopt a standard. The dealers in milk had the right to have a well defined rule of action by which to be governed and to which they could conform. It would be a grievance of which they would unquestionably complain if each case had to be submitted to the recorders and determined by them according to their own ideas as to whether an article sold is or is not adulterated, and is or is not’ hurtful or prejudicial to the public health, making the recorder’s judgment, and not the council’s judgment, a standard of right and wrong.

It js not shown that the ordinances are unreasonable or arbitrary, nor (as a standard of some kind had to be adopted) that it passes beyond a fair measure of correction for the evil against which it seeks to guard.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 11,125.
    Charles K. Lincoln vs. New Orleans Express Co., Limited.
    1. In a purely personal notion by a creditor against bis debtor, another ordinary. ■ creditor has no right to intervene and oppose the demand, at least when, fraud and collusion botween the parties is not charged.
    2. The stock of corporations can not be increased except by compliance with requirements of Act 26 of 1882, and until those requirements have been fulfilled the increased stock has no existence.
    8. A sale by a corporation of such non-existent stock, and the delivery of a certificate therefor to an innocent third person who pays cash therefor, violates the vendor’s warranty of the existence and validity of the thing sold, and entitles the vendee to recover the price.
    PPEAL from the Oivil District Court, Parish of Orleans. . Ellis, J.

      J. Q. A. Fellows and .Tames B. Rosser, Jr., for Plaintiff and Appellee.

      Gurley & Mellen for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff avers that on January 26, 1891, he entered into a contract of sale with the defendant company by which the latter sold him fifty shares of its capital stock, for which he paid defendant $3228 in cash and received a certificate purporting to be for fifty shares of stock; that he subsequently learned that the certificate was worthless and represented no valid stock in the company, but that all the valid stock had been previously issued, and was then held by bona fide stockholders; that he thereupon returned the certificate and demanded return of his money, and that, being refused, he brings the present suit to recover his money.

The defendant answered by a general denial.

Subsequently W. H. Boffinger, claiming to be an ordinary creditor of the company without judgment, intervened in the cause, and representing that he was interested in protecting the assets of the company then in process of liquidation, he claimed the right to defend the company, and settingup for it sundry special defences, he prayed that plaintiff’s demand against defendant be rejected.

The plaintiff excepted to this intervention on the ground that it exhibited no cause of action or right to intervene, and this exception was sustained and the intervention dismissed.

The case then went to trial on the issue between plaintiff and de - f endant, and resulted in a judgment in favor of plaintiff as prayed for, from which defendant has not appealed. But Boffinger, alleging that he is aggrieved and injured by both the judgment dismissing his intervention and by the judgment on the merits, appeals from both.

The judgment dismissing the intervention was clearly right. No jus in re or jus ad rem is involved. Plaintiff’s suit is purely a personal action of debt, and the intervenor only claimsto be an ordinary creditor of defendant. No fraudulent collusion between plaintiff and defendant is charged, nor is there even a direct claim that defendant is insolvent. Prom the adoption of our Code of Practice, it has been the settled construction of Arts. 389 and 390 that the interest required to authorize an intervention “must be direct and closely connected with the object in dispute founded on some right, claim or lien, either conventional or legal,” and that ordinary personal creditors of a defendant “ have no right to interfere with the administration of justice between him and other individual creditors who are pursuing their claims in the ordinary mode of legal procedure.” Brown vs. Saul, 4 N. S. 434; Pierre vs. Marre, 7 N. S. 196.

And even in cases which justify an intervention by a creditor he can not interfere between the parties except for the protection of his own rights, and can not contest plaintiff’s claim against defendant or set up exceptions or defences which are personal to the latter. Carroll vs. Bridewell, 27 An. 239; Flemings vs. Shields, 21 An. 118; Lee vs. Bradlee, 8 O. S. 55.

There may be exceptions to these rules in cases of fraud and collusion between the parties. Sue. of Baum, 11 Rob. 314.

The appeal of Boffinger from the judgment on the merits stands simply as an appeal by a third person, and as no exception is taken thereto by motion to dismiss, or otherwise, we will examine it.

The evidence establishes beyond question that at the date when plaintiff purchased the stock the defendant had no stock to sell and the certificate issued to him represented nothing.

The stock of plaintiff was originally limited to $10,000, the whole ■of which had been issued and. was outstanding in bona fide holders. No additional stock could be created or could exist except by compliance with Act 26 of 1882, passed to carry into effect Art. 239 of the Constitution declaring that “the stock (of corporations) shall not be increased except in pursuance of general laws,” etc. The Act 26 provides the mode of procedure for that purpose, including public notice for thirty days of a meeting of stockholders; a meeting held accordingly, a vote on the proposed increase, a certificate of the proceedings duly signed and verified, and a filing of said certificate in the office of the Secretary of State; and the act concludes with the significant declaration: “And when said certificate is so filed the capital stock of said corporation shall be increased as therein set forth.” It follows that until these requirements have been complied with and the certificate thereof is actually filed, the increased stock does not exist and a certificate therefor represents nothing.

Now, at the time when defendant sold stock to plaintiff and received his money therefor none of the requirements of the statute had been complied with except the holding of a meeting of stockholders, which had voted in favor of an increase of stock. The defendant, therefore, had no stock to sell; the certificate which purported to represent the delivery of stock was a worthless piece of paper; plaintiff received nothing-.for his money and is entitled to recover it.

We are satisfied, as was the district judge, that plaintiff was ignorant of the non-existence of the stock and the worthlessness of his certificate, and that his action in accepting a directorship and acting as such for a short time was based on his belief that he was a stockholder, and that, as soon as he discovered the true state of facts, he promptly returned the certificate and brought suit for his money. A hasty attempt was then made to complete the proceedings according to the statute, but it was too late to affect his rights, and a sale of stock purporting to be in esse can not be validated by the subsequent creation and delivery of new stock without the consent of the purchaser. The new stock was not the thing sold, and its delivery would not discharge the obligation of the seller. Moreover, in this case the defendant has not even offered to deliver the new stock, and has made no special defence beyond the general denial.

The plaintiff has fully proved his case and is entitled to recover.

Judgment affirmed.


author: Fbnner, J. McEnery, J.

text:
    No. 11,159.
    Mrs. Elizabeth McG-uirk vs. Alfred Marchand.
    An order granting an appeal “ on giving' bond to according law,” and without fixing any amount, can only operate as granting a suspensivo appeal,
    A.bond filed “ in the sum o£-hundred dollars ” without filling in the blank might, perhaps, he considered as no bond at all; but even ii it were considered as a bond for one hundred dollars, the court retained the power to pass on its 'sufficiency for a suspensive appeal, and on finding it insufficient, to set aside the suspensive appeal, and then, on application within the delay allowed by law, to grant a devolutive appeal, and appellant, having obtained and complied with such order, is protected in his appeal.
    When the husband administers the movable paraphernal property of the wife, and sells it to one who purchases in good faith, the latter will be protected from the claims of the wife on said property. She must look to her husband for reimbursement.
    When a person takes property on deposit, and sets up title to the property when it is demanded, and when sued for the property alleges that it had been destroyed by fire, his unsupported declaration may be disregarded.
    PPEAL from (die Civil District Court, Parish of Orleans. Monroe, J.

      Farrar <& Leake and F. 8. Drolla for Plaintiff and Appellee.

      W. 8. Benedict and Robert G. Fugué for Defendant and Appellant:
    A husband in possession who administers and controls movables belonging to his wife may sell them and receive the price.
    A purchaser in good faith who pays him their full value cannot bo made to restore them or repay tlieir value to her. 19 La. 362; 8 N. S. 312, 211.
    Her recourse is against her husband.
    By not repudiating or objecting to the sale when she was advised of it she ratified it.
    She again ratified ic when she accepted from her husband other furniture to replace it, which she afterward sold, retaining the proceeds.
    Actions for damages arising ae delicto are prescribed by one year. C, O. 8336.
    Ownership of movables that have not been lost or stolen is acquired by possession in good faith, during three years, under a just title. C. C. 3506, 3182,
    Possession of movables (hiring ten years gives a title. O. O. 8309.

      An agent is not bound to give more care to the px-opei'ty o£ his principal than to lxis own. Jle is not bound to insxire, when the mandate is gratuitous and it has been stipulated that lie woixld have to return the articles in his possession free of charge.
   On Motion to Dismiss.

The opinion of the court was delivered by

Fbnner, J.

The first ground of the motion is incompleteness of the transcript by reason of tbe omission therefrom of the written opinion of the court. Before submission of the motion appellant filed a certified copy of the missing document. This is sufficient, and there was no necessity for resorting to certiorari. City vs. Parlange, 25 An. 336.

The other grounds will be better understood after the following statement:

The judgment being for $2160, appellant applied for and obtained an order of appeal “ on giving bond according to law.” He filed a bond “in the sum of-hundred dollars,” not filling in the blank before the word “hundred.” Thereupon the plaintiff took a rule to show cause why execution should not issue on the ground that such a bond did nob operate to perfect a suspensive appeal. As a matter of course the rule was made absolute.

Thereupon defendant moved for a devolutive appeal, referring to the fact That the former order of appeal did nob operate as such because it did not fix the amount of the bond to be given as required by law. The court granted the order for a devolutive appeal and fixed the amount of the bond, which was accordingly given. The return day in both orders is the same and the transcript was filed in due time.

We are disposed to consider that the bond filed under the first order was no bond at all and did not operate to divest the jurisdiction of the court, in which case no question could arise as to the right of the court to grant the second order of devolutive appeal.

If, however, we should treat the first bond as one for a hundred dollars and as given for a suspensive appeal, which is the only appeal authorized by the order, the court retained the unquestioned power to pass upon the sufficiency of the bond, and, on finding it insufficient, to set aside the appeal and direct execution to issue as it did. The effect of this was to destroy the first suspensive appeal, and if, notwithstanding the order, the transcript had been brought here under that order, we should have had nothing to do but to dismiss his appeal. Baker vs. Schultz, 35 An. 524; Weiser vs. Blaese, 34 An. 833; Dumas vs. Mary, 29 An. 808; Happenbauer vs. Durlin, 23 An. 739.

It is equally well settled that the dismissal of a suspensive appeal for want of a sufficient bond does not deprive the party of the right to take a devolutive appeal thereafter. Johnson vs. Clark, 29 An. 762; Verges vs. Gonzales, 33 An. 414.

We conclude that the judge a quo had full authority, from every point of view, to grant the second order of devolutive appeal, and appellant having complied with it is fully protected.

The motion to dismiss is therefore denied.

On The Merits.

McEnery, J.

The plaintiff sued the defendant for a lot of household furniture which she alleges was her paraphernal property, acquired by donation from her fathei^ and contained in the residence once occupied by her and her husband, corner of Jackson and St. Charles streets, which was taken possession of by defendant, and not accounted for by him. The furniture is alleged to be worth five thousand dollars.

The defendant answered, alleging that he had acquired by purchase a portion of the furniture claimed by plaintiff from the husband of plaintiff, who was in possession of the same, for a fair and adequate price; that the said furniture was purchased by him with the full consent of plaintiff and for her benefit, and was destroyed by fire.

The facts are that the property, or at least a part of it, was the paraphernal property of plaintiff, but it was not assessed in her name, and she never paid taxes on it. It was in the house occupied by her and her husband, and in his possession and control, and administered by him. This is shown by the lease of the house, and all the furniture in it, to one Young.

There is no evidence that the defendant was ever informed, or had any knowledge of the fact, that the property belonged to plaintiff.

During the time that the house and furniture were leased to Young, and during the absence from the State of the plaintiff, her husband sold the greater part of the furniture to defendant, who was to take possession of it after the expiration of the lease.

On the same day he sold the furniture to defendant, 20th June, 1867, Marchand, the defendant, gave to McGuirk, husband, the following document:

“ New Orleans, June 20, 1867.
“ I hold for Mr. A. McGuirk in his house, corner Jackson and St. Charles streets, in front bed room, up stairs—
“ One large bedstead, one armoir. And in parlor, down stairs: One Pleyel piano, one family portrait, one picture (by Galvani), two females; which I shall deliver to him when he desires me to do so, free of charge; subject only to the lease now upon it to G. B. Young.
(Signed) “ A. Marchand.”

When plaintiff returned to the city of New Orleans, her husband had located in Galveston. He died there, and in 1869, or early part of 1870, she visited New Orleans and called on defendant, who had become the owner of the house in which the furniture was stored, and demanded to see her furniture. He denied having any furniture belonging to her, and stated that he was the owner of all the furniture, having purchased it from her husband. The above document was not then presented to Marchand, as it was subsequently found among her husband’s papers by the widow. There is no proof as to the exact time when it was discovered', but we believe with the district judge that it came into the widow’s possession after this demand, and that the defendant, knowing that McGuirk had died, took advantage of the supposed loss or destruction of the receipt to claim ownership of the furniture.

On these facts the district judge gave judgment for the plaintiff for the value of all the property in the house, claimed by plaintiff, the value being $2160.60, the price fixed in the act of sale of the furniture to Marchand.

As to the articles of furniture not included in the receipt, he was of the opinion that the sale to Marchand by McGuirk was a nullity, as he did not own the property and had no right to sell it.

The plaintiff knew of the sale having been made. She was informed of the fact, and the husband told her he would make it all right.

During the husband’s lifetime she made no objection to the sale.

She made no effort to have the furniture restored to her, and we are of the opinion that she acquiesced in the sale.

But independent of this fact the husband was in possession of the property, and administered it. A purchaser therefore in good faith under such circumstances is protected. There is, as the district judge says, an impression that the sale was simulated, but there is no evidence to prove this fact. This impression is made from the insolvent condition of the plaintiff’s husband, and his taking the benefit of the bankrupt law about this time.

But this impression is weakened by the fact of the defendant having given a receipt for a part of the furniture which had been leased, but not included in'the sale to defendant, on the day of the sale, to be returned to plaintiff’s husband. Why, if the sale was really simulated, was not a receipt and an obligation to restore it given for all of it?

We have no doubt that the furniture described in the receipt belonged to plaintiff.

When the plaintiff demanded to see her furniture, defendant denied her ownership to it and claimed title to the property. He knew he had no title to this lot of furniture, and his pretensions were unquestionably based on the supposed disappearance of the receipt. He acted in bad faith, and as there is only his unsupported declaration that the furniture was destroyed after the visit of the plaintiff to him, we feel authorized in disregarding this statement as to its destruction by fire, with his furniture, all of which was uninsured.

We are unable to fix the value of the furniture contained in the receipt of June 20, 1867. There is no evidence in the record as to its value. The case will therefore be remanded in order to ascertain the value of the furniture.

• It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the case be remanded to be proceeded with according to law and the views herein expressed, plaintiff to pay costs of appeal.


text:
    No. 11,160.
    W. H. Moise, Tutor, vs. Mutual Reserve Fund Life Association.
    1. A tutor of minor heirs appointed in Louisiana, whose father was domiciled and died in Kentucky, has no powers of administration over property not located in this State.
    2. A debt due by a New York debtor to a Kentucky creditor does not acquire a situs in thisState because the non-negotiable evidence of thedebt is found here.

      8. A Louisiana court has no valid authority to appoint an administrator to a person who was domiciled and died in Kentucky, and who left no property in this State.
    i.' When, a policy of insurance expressly stipulates that no assignment shall be valid without the consent of the company, an assignment without such consent is without effect.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      D. B. H. Chaffe and Moise & Gahn for Plaintiff and Appellant.

      Bayne, Denigre & Denigre for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

Sydney L. Guyol, a resident and citizen of Louisville, Ky., took out a policy of life insurance for $5000 with the defendant company, a corporation domiciled in New York.

By the terms of the policy the loss was payable to the executors or administrators of; said member.”

Gúyol died at his home in Kentucky. He left a surviving widow and certain minor children by a first marriage. After the death of his first wife, these children had been sent by Guyol to their maternal relatives in New Orleans, and were here at the date of his death.

The present plaintiff, their maternal uncle, applied to the Civil District Court of this parish and was appointed and confirmed as tutor of said minors.

An inventory was taken which showed no other property except the policy of insurance above referred to and another policy in a different New York company.

The defendant company does business in this State through an agent, who, as required by the law of the State, represents it for purposes of suit in this State.

The tutor, being in possession of the policy of insurance, brings this suit thereon against the defendant company through its aforesaid agent.

The defendant filed exceptions of no cause of action, and lack of capacity in plaintiff to stand in judgment, because the policy was payable to the executors or administrators of Guyol, who was domiciled and died in Kentucky, where alone his succession could be opened, and a judgment in favor of plaintiff would not be'res adjudícala against an administrator of Guyol appointed in Kentucky.

These exceptions were properly maintained and plaintiff’s suit dismissed.

We have no concern with the propriety or validity of plaintiff’s appointment as tutor of the minors, nor with his right and power in that capacity to take possession of and administer the estate of their deceased parent, whose heirs they are, in this State.

Guyol was domiciled and died in Kentucky, and, so far as appears, he left no property real or personal in this State. This policy of insurance is a mere non-negotiable evidence of a debt due by a New York debtor to a Kentucky creditor. The appointment by the insurance company of an agent in this State, through whom it may be sued, does not change the domicil of the company. Under no possible view eah. such a debt be said to have a situs, real or fictitious, in this State.

There is no possible ground for an administration of Guyol’s sue- • cession in this State.

The policy, by its terms, is payable only to Guyol’s “ executors or administrators,” to whom alone is the company bound to pay. Under the facts of this ease the courts of Louisiana have no valid authority to appoint such an administrator, and if they had, by reason of presence of other property in this State, his authority would noff embrace the administration of this foreign asset, which belongs to the domicil of the decedent.

The alleged assignment of the policy by Guyol need not be considered, because the policy contains an express clause that no assignment “shall be valid without the consent of the association, and upon such terms as shall be approved by its secretary or assistant secretary,” and no such consent is alleged or proved.

Other matters alleged ar.e impertinent to the issue and need not be discussed.

The company was not required to prove that Guyol had creditors. It is entitled and bound to stand on its contract, which obliges it to pay only to Guyol’s “executors or administrators,” and whatever powers plaintiff’s commission as tutor might confer on him over property situated in this State, they can not embrace any power to administer or collect this debt, due by a New York corporation to a decedent who was domiciled and died in Kentucky.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,107.
    John Calder & Co., and David R. Calder, Individually, vs. Their Creditors.
    On Rule oe Contempt.
    The facts disclosed by the record being, that a citizen of the State of Tennessee commenced suit in the United States Circuit Court in the State of Louisiana, against a citizen of the latter, and procured the seizure by executory process of certain mortgaged property; that certain other mortgage creditors of same defendant, residing inLouisiana, intervened, setting up concurrent mortgage rights thereon; and that subsequently, the seized mortgage debtor made a cession and surrender to his creditors generally, including the mortgaged premises among the assets surrendered. Seld, that the continuation, by the intervening Louisiana creditors of the insolvent, of their claim for participation in the proceeds of sale in the custody of the Federal Court, was not, in effect, a contempt of the stay-order of the State court having-jurisdiction of the insolvency proceedings and estate.
    Under such a state of facts the Louisiana creditors were without other alternative than the one they adopted, for had they not continued the prosecution of their demands in the court having possession of the ref, and complete jurisdiction over it, they might have been altogether lost.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Henry L. Lazarus and Horace E. Upton tor the Syndics, Plaintiffs on Rule and Appellees.

      Carroll & Carroll for Orescent Insurance Oo., Defendants on Bnle and Appellants:
    It is no part of a syndic’s right or duty to represent a Louisiana creditor of the insolvent, claiming under a mortgage note granted by the insolvent, in a contest-in a foreign jurisdiction over the proceeds of the sale of the mortgaged property between Louisiana and foreign creditors. 14 An. 475, and cases cited below.
    A fund in the possession of the Federal Court rising from the judicial sale oí property, rightly provoked, must be distributed by that court directly among the parties entitled to share in it. The fact that the owner of the property afterward goes into insolvency is no bar to a Louisiana creditor'pressing his claim to part thereof upon a mortgage note granted by the insolvent, and gives no power to the syndic to represent such creditor. Such fund is in the nature of a pledge for the payment of privileged claims thereon, and the syndic is entitled to the residuum. 38 An. 868; 40 An. 37.
    A syndic represents the mass of creditors and -has no power to represent a particular creditor or class of creditors. Where the mass of creditors has no interest, the syndic can not interfere. 1 An. 475; 1 R. 276; 12 An. 775; 1 An. 24.
    A syndic, having gone into the Federal Court and prayed for relief in a matter there pending in which Louisiana creditors of the insolvent are parties, is estopped, after submitting the matter to that court, from seeking substantially the same relief against the Louisiana creditors in the State courts.

      A Louisiana creditor can not be restrained by a State court having jurisdiction of an insolvency proceeding from establishing his privileged claim upon a fund in the custody of a Federal Court, arising from the sale of the insolvent’s property. The syndic has no right to represent such creditors in theFederal Court, and can only represent the mass of creditors for such interest aSj they may have. 14 An. 475.
    Such fund is in the nature of a pledge for the payment of privileged claims thereon, and the syndic is only entitled to the residuum. For the syndic to represent privileged creditors, whether citizens of Louisiana or not, would be antagonistic to the interests of the mass of creditors, and beyond the power of the syndic. 38 An. 863; 40 An. 37.
    Jfi a contest in a foreign jurisdiction over the fund arising from the sale by a competent court of a plantation belonging to the insolvent, if is no part of the right or duty of the syndic of the'insolvent to represent a Louisiana creditor, who claims a privilege upon the fund by reason of holding a note bearing a mortgage upon the plantation, especially when foreign'creditors, not subject to Louisiana jurisdiction, and not parties to the insolvency proceedings, claim priority.

      Browne & Choate for Home Insurance Co., on the same side.
   The opinion of the court was delivered by

Watkins, J.

This controversy arises upon a rule taken on the part of the provisional syndics of the insolvents, John Calder & Co., and D. R. Calder, individually, against two of the creditors of said insolvents, to-wit: Home Insurance Company and Crescent Insurance Company, to compel them to show cause why they should not be sentenced for contempt for a violation of the order of court staying all proceedings against the person and property of said insolvents, that was granted by the judge in accepting their surrender for the benefit of their creditors, generally; the specific complaint of the provisional syndics being that said insurance companies, by certain judicial proceedings in the United States Circuit Court, were attempting to subject property of the insolvents to the payment of their debts to the prejudice of other creditors of said insolvents, in direct violation of the stay-order, and thus avoid and evade its effect.

Said companies were ordered to show cause why they should not abate or cease to further prosecute their proceedings in the Federal Court, and to assert their rights, if any, in the insolvency proceedings.

To this rule the answers of the insurance companies were, substantially, that they were bona fide holders for value of one note each, of the defendant, D. R. Calder, for $10,000, respectively, which were secured by special mortgages upon his Aragon plantation, in the parish of Terrebonne. That one Mrs. L. W. Goode, a citizen of the State of Tennessee, had pi'eviously obtained a seizure of the mortgaged property under executory proceedings in the United States Circuit Court, and that they had intervened therein prior to the cession and surrender of the insolvents, for the protection and enforcement of their rights. That a mortgagee of said Calder, inferior in rank to them, and who was a citizen of the State of Illinois, subsequently intervened in the executory proceedings of Mrs. Goode, and asserted claim upon the mortgaged property prior in rank to their own, thus necessitating the continuation of their own, in order to protect their rights. That for these reasons they were acting in the necessary defence of their rights in a court of justice, possessed of competent jurisdiction of the res on which their rights and privileges were founded; and that the action thferein was prior in date of commencement to the cession and surrender of their debtor, and that its continuance in said court after the cession was necessary in order to protect themselves against an adverse judgment in favor of the subsequently intervening creditor.

That they did not intend any disrespect to the order of the court staying all proceedings against the person or property of the insol - vent, and for that reason should be discharged. They further expressly plead and aver that said provisional syndics appeared in the United States Circuit Court and filed a bill in equity, wherein they sought to restrain and enjoin Mrs. Goode from selling the mortgaged property on the ground that her mortgage had become perempted and extinguished, and that the court had no jurisdiction in rem for that reason; and that the Federal court had no jurisdiction in personam over them, as corporations domiciled in the State of the defendant, hence the res became properly subjected to the jurisdiction of the insolvent court. That said provisional syndics were unsuccessful in that suit, the court holding that notwithstanding Mrs. Goode’s mortgage had become perempted by reason of its non-reinscription, her vendor’s lien on the property remained intact, and therefore its grasp on the res could not be released; and that, maintaining jurisdiction of the res, the intervenors were entitled to re-mam in that court and contest there the relative rank of the privileges of the seizing creditors and subsequent intervenor — they being citizens of States different from that of the insolvent and themselves — notwithstanding said intervening insurance companies were disentitled to original process of seizure and sale against the mortgaged property, on account of their domicil being in the State of the insolvent.

On the trial of the rule the intervenors were found and adjudged guilty of contempt, and it was made absolute, and they have appealed —the judgment sentencing them to abate and discontinue their proceedings in the Federal court, and as citizens of this State to submit themselves to the order of court rendered in the insolvent proceedings.

The record discloses that Mrs. Goode commenced her executory proceedings in the United States Circuit Court on the 9th of February, 1892 — she being a citizen of the State of Tennessee — and obtained orders of that court for the sequestration of the mortgaged property, and also for its seizure and sale, and thereunder the marshal made a seizure, subsequently, and took the mortgaged property into his official custody.

On the 10th and 12th of same month and year, respectively, the insurance companies intervened in Mrs. Goode's executory proceedings and obtained separate and independent orders for the issuance of writs of seizure and sale — said orders being prior in date to the actual seizure of the mortgaged property under the writ of Mrs. Goode, and also prior in date to that of the cession of the insolvent debtor.

There is nothing in the record to precisely show at what date the seizure of the mortgaged property was effected under the writ of seizure and sale of Mrs. Goode; but counsel for the insolvent admit that the property was seized under the .writ of sequestration antecedently to the cession of the insolvent on the 15th of February, 1892.

The intervention of Schwabacher occurred in March subsequently.

Any doubt that may otherwise exist, however, as to the priority of the seizure over the cession is dispelled by the judgment and decree pronounced by the United States Circuit Court in the case of William Henderson et als., Provisional Syndics, vs. Mrs. Goode, 46 Federal Reporter, 887, it having been provoked by the syndics themselves, and is necessarily binding and conclusive upon them.

In that case the court, after stating the facts substantially as above recited, held as follows, viz.:

“As concerns Mrs. Goode, the citizenship of herself and Calder is such that the court has jurisdiction over the case, and the res — the mortgaged premises. *****
“ So far as the Home and the Orescent Insurance Companies are concerned they are citizens of this State, and therefore of the same State as Calder, but they are citizens of another State 1;han that of Mrs. Goode. They could not have institutedlthe suit in the United States Circuit Court, nor can they have original process. But the court being in possession of the res, in a proceeding over which it had jurisdiction, they have properly intervened to assert their rights in the res. In this respect they are like people claiming in an ad - miralty court liens which spring from State statutes. They can not bring the res into court, but may assert their privileges after it has been brought there by those having liens.
The injunction is refused so far as relates to Mrs. Goode, Schwabacher and the marshal, and allowed so far as relates to the independent executory proceedings of the Home and Crescent Insurance Companies, leaving them full right to enforce whatever right they have as interveners in the case.”

The principle involved in that case is that the court having acquired jurisdiction of the res, by virtue of the marshal’s seizure and the custody of the law, under the writs of sequestration and seizure and sale, and of the creditor personally, therefore that court had jurisdiction to determine as between the intervening insurance companies and Mrs. Goode and Schwabacher, citizens of States other than that of the insurance companies, their relative rights in the res, and, particularly, the rank of their respective mortgages, notwithstanding the court had no jurisdiction of the intervenors in personam.

There can be no doubt of the correctness of that proposition of law, because a Federal court is in no way bound by insolvency proceedings in a State court unless the latter has acquired the physical custody of the estate of the insolvent prior to seizure thereof under process from the former.

Under the state of facts presented we are of opinion that the insurance companies had no other alternative than the one they chose to pursue. Their interventions were filed antecedent to the surrender of Oalder, in a Federal court that possessed jurisdiction of the cause in which same were filed. Their demands were founded on special mortgages on property upon which the court had obtained jurisdiction antecedent to the cession of Calder; and the principal question for the court to determine was the rank and privilege, respectively, of the different mortgages on the proceeds of sale then in its custody — especially that of the intervenors and Scliwabacher.

During the pendency of these proceedings the provisional syndics inaugurated an independent suit in that court, seeking to avoid their effect; but the decision of the court was against them.

In our opinion the insurance companies have thoroughly purged themselves of contempt, and that the judgment appealed from is erroneous and must be reversed.

Counsel for the insolvent place reliance upon our opinion in Hayden Syndic vs. Yale & Bowling, recently-decided, as controlling the decision of this case; but we are of a different view. The principles announced in that case are not applicable to the instant case. Yale & Bowling commenced proceedings in a court of the State of Mississippi, and attached property of the insolvent Hayden therein after he had made a cession of it in a Louisiana court, and, by an assignment of the judgment, subsequently obtained, to a citizen of Mississippi, they defeated the jurisdiction of the Louisiana court over the property and its proceeds. We held Yale & Bowling bound to account to the syndic for the proceeds and avails of the property.

It may be equally true that the insurance companies would be compelled, in different proceedings, to account to the syndic of Oalder for the portion of the assets coming to them, respectively, from the res in the marshal’s hands; but we think it clear that, under the facts of this case, they are guilty of no contempt of the stay-order of the insolvency in continuing the proceedings they had previously instituted, as the necessary and only means in their power of protecting their rights.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the contempt proceedings be abated and the rule discharged at the cost of the insolvent estate in both courts.