text:
    No. 316.
    Chaffe, Powell & West vs. M. M. S. Mackenzie.
    1. Where the errors in the transcript are not imputable to the appellant, the appeal will not he dismissed.
    2. The Codo oí Practice does not require that the bond for the appeal shall have the amount fixed in reference to the amount claimed, or the value of the.prop.orfcy seized under a writ of attachment.
    3. When the judgment is for the amount of the debt claimed, and damages for the-wrongful swearing out of the attachment, the'amount to extinguish each other pro tanto, the appeal bond which is given in reference to the judgment is not a voluntary execution or acquiescence in the samp.
    4. In order to maintain an attachment there must be some proof that at the time the writ issued the defendant had done, or was about to do, the act charged. The intent must also exist to defraud, or to give unfair preference. But this-intent usually can only be proved by the acts of the defendant and the conclusion to he drawn from these.

      5. Whore the defendant makes proposals to the plaintiff to prevent suit against him, in negotiating for a compromise or settlement of the debt, the offer can not be used in evidence against the defendant, unless there is some fact or distinct liability admitted.
    (5. When the plaintiff by rule prays for the production of books and. papers of the defendant, and he answers that they are not in his possession or control, and no effort is made to traverso and contradict the answer, and in the progress of the trial the defendant ascertains where they are, and produces them, and offers, them in evidence, this is a substantial compliance with the order, although there may be a well grounded suspicion that through the influence of the defendant they had been secreted.
    7. Where a party owes another a debt, evidenced by promissory notes, and another debt on open account for cotton shipped, and ho ships cotton and immediately draws against it to the full amount, and sometimes in excess of it, he can not require that the proceeds of the sale of the cotton be imputed to the extinguishment of the notes, particularly when he knows, from an account stated to him, to which lie makes no objection, and from the course of dealing with the creditor, that the proceeds of the sale of the cotton have been imputed to the cotton account.
    S. On the dissolution of an attachment, on the grounds that the defendant has disposed of his property, or is about to dispose of it, with intent to defraud, the defendant can recover only actual damages, unless he shows the attachment issued from malicious motives to annoy, distress and injure him.

      1 Boone^ J. PPEAL from the Second District Court, Parish of Webster.

      Boatner & Lamkin for Plaintiffs and Appellants.

      Watkins <& Watkins for Defendant and Appellee:
    1. If the appellant has acquiesced in the judgment of the lower court the appeal will be dismissed. 32 An. 947, Stinson vs. O’Neal; 40 An. 201; Board of Church Wardens vs. Bishop et al.; also dissenting opinion of Justices Todd and Watkins in 39 An. 84, Duncan vs. Wise.
    2. Transcript made up by the instructions and under supervision of appellant’s counsel, errors therein will be imputed to the appellant and the appeal dismissed. 38 An..34, Samuels et al. vs. Brownlee et al., and cases cited.
    3. Affidavit for attachment that is wanting in elements of positiveness, or is conflicting or uncertain in its allegations, is defective and bad. 32 An. 340, Hernsheim & Bros. vs. Levy; Drake on Attachments, Secs. 101 to 103; Am. and Eng. Enc. of Law, Vol. 1, p. 904, with Notes; Cross on Pleading, p. 292, Sec. 380, 14 An. 36; 11 An. 438, 622. . _
    4. “ The right to attach depends on the state of facts existing at the time the writ issues.” 32 An. 348; Hernsheim & Bros. vs. Levy, 35 An. 285; 41 An. 227, National Bank vs. Moss & Co. et al., quoting'1st An. 98; 10 Ah. 324; 3 Howard, pp. 509, 512; Manning’s Unreported Cases, 220. .. • v
    5- “ The intent to defraud must exist to justify an attachment.” 35 An.339, Ferguson vs. Chostont, C. P/240; 22 An. 531; 24 An. 82, 586; 26 An. 258; 28 An. 309; 30 An. 393 ; 32 An. 340, 344; 35 An'. 624; Lehman, Abram ’& Co. vs. McFarland &Dupre, p. 624; 37 An. 722; 32 An. 340.

      G. Damages will be allowed on the dissolution of an attachment. 32 An. 340; 37 An. 722; 30 An. 1140; 33.An. 6; Byrne & Co. vs. Gardner & Co., 34 An. 1203; 38 An. 353,
    7. The books, etc., ordered produced under C. P. 140 and 473 must be in “ the possession ” of the adverse party and material to the cause. C. P. 140 and 473.
    8. There must be an order signed describing the books, etc., to be produced. C. P. 473 and C. P. 140 allows the party ruled to produce books, etc., to show “ by satisfactory evidence the impossibility of producing such documents.” C. P. 140, 473.
    9. The rule to produce must be answered, tried and on motion made absolute * before tbe facts, and then only specific facts, alleged can be considered in evidence as taken for confessed. C. P. 140, 473; 18 An. 203; 18 An. 300; 30 An. 825, 827; 30 An. 514.
    10. If the day fixed for the trial of the cause is the only day on which books, etc., can be ordered produced (C. P. 473; 18 An. 203; 30 An. 825), defendant is relieved of the production of books, etc., as the cause was put at issue on the 9th, and by rule of court fixed for trial on that day, and the rule to produce only filed on the 14th, when the case had been called for trial, and trial immediately proceeded with before jury.
    11. The case of J. B. Morrison & Co. vs. Andrew J. Butler (18 An. 203), which decides that the court can not order the production of books, etc., on any other day than the day fixed for the trial of the cause, is overruled in same case (page 800) of same volume, by same court, between same parties, where it is decided that Art. O. P. 473 is only directory, and court may order books, etc., produced on any day. In this case no order was signed at all for the production of the books, etc., and no day fixed for their production. They were produced *' on the trial,” as ordered in the entry on the minutes of the court.
    12. A transaction or compromise is defined by R. C. C. 3071 as an agreement between parties for “preventing or putting an end to a lawsuit.” An offer of compromise can not be used in evidence. 1 Greene Kv. 192; 19 An. 332; U. D.,'p. 508, Vol. 1.
    13. When a debtor owes two debts to same creditor, payments made by him are imputed to the extinguishment of the most onerous debt. 80 An. 1225, 1263; 32 An. 142; 15 An. 457, 526; 24 An. 472. '
    14. “ When there is a conflict in the evidence, the verdict of the jury will not be set aside,” nor will the estimate of damages fixed by the jury be changed. 39 An. G10, 929, Pox & Co..vs. Jones; 37 An. 623, 655, and a long list of cases cited in H. J) , p. 92, No. 1.
   The opinion of the court was delivered by

McEnery, J.

The defendant moves to dismiss this appellant on the grounds, (1) errors in the transcript imputable to the appellant, and (2) acquiescence in the judgment.

1. The errors in the transcript are not of that character which would justify the dismissal of the appeal, even if they were imputed to the appellant. But the affidavit of the attorney is attached to the transcript, which satisfies us that the errors complained of can not be attributed to the appellant. The error in the certificate of the date of filing transcript is clear cut, and fully, explained. It was filed in this court in time.

2. The alleged acquiescence in the judgment is that the appeal bond is fixed in accordance with the judgment rendered. The bond is given strictly in pursuance of Article 575 C. P. This article does not require that the bond shall be fixed in relation to the amount claimed in the suit, or the amount of property seized under the attachment. The motion to dismiss is denied.

The plaintiffs sued the defendant on five promissory notes executed by the defendant, one for the sum of $2054.80, due 15th October, 1890; one for $3097.04, due 6th November, 1890; one for $5000, due 15th November, 1890; one for $5000, due 15th December, 1890; one for $5000, due 15th January, 1891, all bearing 8 per cent, interest per annum from maturity. The plaintiffs accompanied this suit with an attachment. The reasons assigned for the same were that the defendant had converted, or was about to convert, his property into money or evidences of debt, with the intent to place it beyond the reach of his creditors. On the same day (24th April, 1891) that the attachment issued the property of the defendant, comprising his mercantile establishments, and a stock of goods in a branch store, and real estate in the parish of Webster, was seized.

The defendant filed a motion to dissolve the attachment, on the ground of the insufficiency of the affidavit, the untruthfulness of the allegations for the attachment, insufficiency of the bond. His motion was referred to the merits. The defendant answered, in which he alleged that the notes had been extinguished by the proceeds of the shipments of cotton made by him to the plaintiffs, which ought to have been imputed to the notes, as they were the most onerous debt, and not to the open account, due by the defendant to the plaintiffs.

He asked for $45,000 damages, itemized as follows: First, loss of profits in his business; second, actual deterioration of his stock while in the sheriff’s hands; third, deterioration in value from the reputation of being locked up and bankrupt stock; fourth, loss of business; fifth, being prevented from making collections; sixth, damage to his credit and reputation as a merchant; seventh, loss of profitable mercantile transactions and trade with a valuable and growing class of customers; eighth, damage to his feelings, annoyance, mortification, and vexation; ninth, counsel fees incurred in defending the attachment.

S. D. Rawlins intervened in the suit.

The case was submitted to a jury. ■

There was a verdict and judgment for- the defendant, 'dissolving the attachment, with #30,000 damages, and allowing plaintiffs’ demands, the debts to extinguish each other pro tanto. The intervention of Rawlins was dismissed. The plaintiffs have appealed.

The evidence fails to sustain the allegations in plaintiffs’ petition, that the defendant had converted or was about to convert his property into money, or evidences of debt, with the intention to defraud his creditors, or to grant an unfair preference to some of them.

In Order to sustain the attachment, there must be proof that, at the time the writ issued, the defendant ha-d done, or was about to do, the acts charged. The intent, ■ also, must exist, to defraud, or to give an unfair preference. This intent, which rests in the bosom of the defendant, can only be shown by the acts and declarations Of the defendant, and the conclusions to be drawn from them.

The plaintiffs rely on certain proposals made to plaintiffs by defendant; to the disposition of eleven bales of cotton on the day the attachment issued, and on defendant’s failure to produce his books under the order of court.

We think the disposition of the eleven bales has been satisfactorily explained by defendant.

The proposals made to the plaintiffs were to prevent a suit against him. The amount of. plaintiffs’ claim was not in dispute. Before the proposition was made, which was the basis of the attachment, plaintiff Ohaffe and the defendant had had a conference at defendant’s house, in relation to the manner in which defendant’s indebtedness could be liquidated. After this, the claim was put into the-hands of plaintiffs’ attorney, who notified the defendant to meet him and one of the plaintiffs at Monroe.

The object for which the conference was called is thus stated by plaintiffs’ attorney:

C. J. Boatner, sworn on part of plaintiffs, states that the interview between the defendant and Mr. West, of plaintiffs’ firm, at the office of Boatner & Lamkin, of Monroe, was for the purpose of ascertaining if defendant would pay, or secure the payment of, plaintiffs’ claim against him. Defendant made certain propositions to the plaintiffs in settlement of thpir debt, but nothing in compromise as I understood it, defendant claiming that plaintiffs ■ would realize their claim in full, and there being no contest developed there as to amount of: defendant’s indebtedness to plaintiffs.' This, so far as I heard, was what transpired between the parties.

At this conference the defendant repeated what he had previously proposed to one of the plaintiffs. He also proposed to the plaintiffs that he would, for the consideration of $4000, execute a sale to the plaintiffs of all of his property, or they could levy an attachment on the same. On an objection by plaintiffs that such a transaction would not stand a legal test, he suggested the manner in which the evidence could be suppressed.

“An offer to buy peace is not to be taken advantage of for purposes of evidence, unless some fact, or distinct liability, be admitted in the offer, since the offer may have resulted, not from the consciousness of indebtedness, but from a desire to avoid litigation.” 19 An. 363. x

The facts attempted to be preved by plaintiffs are not facts admitting a distinct liability, but were proposals that occurred in the conversation or negotiations to effect a settlement of the claim.

This evidence was, therefore, properly rejected.

But if competent evidence it would not sustain the attachment. The proposition or offer was made to plaintiffs for their benefit. It would have probably authorized an attachment by another creditor, but it is not apparent in what manner the offer to plaintiffs has injured them, or in what manner the intent to defraud his other creditors could justify an attachment on a proposed sale which would inure ' exclusively to their benefit. There is no evidence that any such proposition was ever made to any other creditor.

Article 140 of the Code of Practice declares that courts may, at the request of one of the parties, decree that the other party bring ' into court the books, papers and other documents which are in his possession and which are material in the cause, provided the party requesting their production declares in writing and on oath what are the facts he wishes to establish by such books, papers, or other docur ments, and on the refusal of the party thus called upon to comply with the'order, the facts stated and. sworn to shall be considered as having-been confessed until satisfactory evidence of the impossibility of producing such documents. Under this article the plaintiffs filed a rule on the defendant to produce his books, papers, etc., on the day fixed for the trial. He answered that the books, etc., were not in his possession or control, but were in his storehouse, which was under seizure. No effort was made on the part of plaintiffs to show that the books and papers called for were in defendant’s possession. Search was made for them in the storehouse, but they could not be found. A telegram was received from defendant’s former clerk, designating the place where they were placed. They were then produced and offered in evidence by the defendant, but objection was made by plaintiffs.

There were very suspicious circumstances attending the secreting of the books in a desk in the storehouse, probably induced by defendant’s instructions to the clerk. But they were produced before any attempt had been made to compel the defendant to show the impossibility of producing them. The production of the. books and papers was a substantial compliance'with the order, as there had been no trial on, the rule to produce, establishing the truth or falsity of defendant’s answer to the rule.

Defendant avers in his answer that the notes sued on have been extinguished by the proceeds of cotton shipped to plaintiffs, and which should have been applied to them, as the notes were the most onerous debts owing by defendant to plaintiffs. The evidence does not sanction any such pretension, and is not borne out by the defendant’s testimony. He swears there was an agreement with plaintiffs to that effect. No such agreement is shown to have been made.

The notes sued on were discounted and the proceeds placed to defendant’s credit. Money was advanced to him to buy cotton for plaintiffs. With each shipment of cotton, he drew on plaintiffs for the proceeds, in advance, of the value of the shipments.

The plaintiffs furnished the defendant with full statement of his accounts, showing the appropriation of the proceeds of the cotton. In this statement a memorandum was attached showing that the notes had not been charged in the account. The course of dealing between plaintiffs and defendant shows conclusively that there was not only no agreement to extinguish the notes by the shipments of cotton, but that there was no intention that the proceeds of the sale of the cotton should be imputed to their extinguishment.

The acquiescence, silence, and consequent approval of the stated account furnished defendant by the plaintiffs, is an effectual disposal of this part of the case. 2 An. 28; McLean & Kendall vs. Hunsucker, 30 An.

The evidence fully sustains plaintiffs’ demand on the notes. There seems to be no serious controversy on this point. .

The only remaining question is to ascertain the amount of damages suffered by the defendant by the illegal seizure and detention of his property.

(1) Loss of profits in business and interruption of business. There is no evidence whatever to base any calculation of damages on this claim. It is true the defendant aggregated the amount of his loss, but he does not state a single fact or circumstance to sustain his estimate. It is a bare declaration, and the same be said of items 5 and 7. He does not show that he has lost anything from this source.

(0) Damage to his credit and reputation as a merchant.

The defendant owed the plaintiffs a large amount. He was unable to pay the amount. He was unquestionably insolvent, although this fact was not generally known. The plaintiffs had a right to sue for their debt. His real condition would then have been disclosed. The loss of credit resulted from the suit and not from the attachment alone. We do not think that the attachment proceedings have been the direct cause of his loss of credit. The witnesses, upon whom he relies for an estimate of damages on this item, were mainly those whose claims he had discounted, thus establishing a credit with money he obtained from the plaintiffs, and which ought to have gone to purchase cotton to liquidate his indebtedness. But there is no evidence that he has suffered a loss of-credit in any particular direction. The witnesses say, before the attachment, they would have credited him; that his commercial standing was good, but since the attachment, knowing his condition they would not extend credit to him. His financial condition was a fact soon to be disclosed by the suit, without the aid of the attachment. 33 An. 8.

(8) Damage to his feelings, annoyance, mortification and vexation.

On this item there is no evidence upon which to make an estimate, even were it in a case like this advisable. It is not shown that the attachment was issued maliciously. Steinhart vs. Lamore, 41 An. 835.

(9) Counsel fees.

We think $1000 a just estimate of the services of counsel in dissolving the attachment. The case has evidently been one of protracted litigation, and the amount involved is large.

(2) Damage to stock and property by the attachment.

The goods seized have evidently been damaged by the seizure. The defendant’s witnesses in estimating the damage have done so without a personal inspection of the goods. They base their evidence solely upon hypothesis. And the witnesses for the plaintiff, who examined the stock, did not do it with that particularity to detail which would give a correct estimate. It shows, however, that the stock was a broken one, consisting mainly of winter goods, left over from the previous year. All the witnesses who made a personal inspection of the goods state that they were well cared for, free from dirt and moths, so far as their casual examination permitted them to ascertain their condition. Some of the goods they estimate as worthless and some damaged, aggregating not more than $400.

We are satisfied, however, that this estimate is too low. Experience teaches that a stock of goods, seized and stored during the summer months, must necessarily deteriorate in value. They are generally in the hands of men unaccustomed to handle them and unacquainted with the many methods used for their preservation. Dust will necessarily accumulate, moths will appear, and their general appearance by frequent handling will not add to their saleability.

The evidence of all the witnesses shows that a stock of goods held over from one season to the other, deteriorates in value, and the estimate is from 20 to 50 per cent. The greater portion of these goods was winter stock, from the previous winter. The season had passed for their sale. The stock seized was inventoried at $20,800, cost price. Deducting 20 per cent., the lowest estimate for depreciation, the cash or salable value would be $16,640. All the witnesses agree that a stock of goods known as bankrupt stock depreciates in value, regardless of its condition. This estimate is from 25 per cent, to 60 per cent. Adopting as a fair per cent, for depreciation 25 per cent, we will estimate the damage on the value of the stock, $16,640, at $4150. We therefore estimate the damages suffered by the defendant for attorney’s fees and damage to stock of merchandise at $5150.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow the defendant $5150 damages, and in all other respects it be affirmed. The appellant to pay costs of appeal. . •


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,822.
    Succession of Robert Frank Allen.
    In appeals by third persons, not parties to the judgment in the court below, when the facts on which the right of appeal is based have not been established, and are denied by appellee, tbe case will be remanded to the lower court to try that issue.
    APPEAL from the Civil District Court for the Parish of Orleans. Kingy J.

      Kernan <Sc Laycock and Fergus Laycock for Appellants:
    1. Ex parte evidence of interest is sufficient to support an appeal taken by a third person, under Article 571 of the Code of Practice. Payne vs. Ferguson, Curator, 23 An. 582. Cooley vs. Cooley, 38 An. 197.

      2. The maxim “ la mort, saisit la vif," does not apply to the surviving spouse claiming as heir. She has only a right of action to establish the want of heirs, in default of whom she takes as irregular successor. R. C. C. 949,930.
    3. This right of action must be exercised contradictorily with all parties in interest, and can not be established by ax parta proceedings. If there be absent heirs, an attorney for absent heirs must be appointed to represent them. 11. C. C. 930; Sue. of Fleming, 18 An. 727; Sue. of Fletcher, 11 An. 61.
    4. A final judgment rendered by a judge of the Civil District Court of Orleans, other than the judge to whom the case was allotted, is absolutely null, unless the party against whom it was rendered acquiesces impliedly or expressly in the competency of the judge. If he do so acquiesce, then the judgment is relatively hull, and will be so declared on appeal. Constitution, Art. 130; Buisson vs. Judge, 33 An. 1426.

      Henry G. Miller, contra:

    The order recognizing and putting in possession the heir and widow in community of the deceased, is properly rendered on the petition of the heir and widow, accompanied with proof supporting the demand. C. C., Arts. 940,941: C. P., Arts. 1000, 1001; Addison vs. Bank, 15 La. 527.
    Such an order may be made by the judge acting in place of the judge to whom the succession is allotted. Constitution, Art. 130; Acts 1882, amending Constitution p. 174; 33 An., p. 1426.
   The opinion of the court was delivered by

Fenner, J.

The appellants claim to be heirs of the decedent, Allen, and appeal as third persons, from a judgment rendered in the court a qua, recognizing his widow as sole heir, and putting her in possession of the estate, to which judgment the appellants were not parties.

Their interest in the proceeding and their right to the appeal are based on their allegation of heirship, which is based on no proof save the exparte affidavit of one of them attached to the petition of appeal in the lower court and verifying the facts therein alleged.

The appellee has filed a formal answer to the appeal in this court, in which she denies that appellants are relations or heirs of deceased, or have any interest whatever to maintain an appeal.

The jurisprudence of this court settles, beyond dispute, the couise to be pursued in such a ca.se. If a third person appeal, and the facts on which his right of appeal is based be denied, the' case will be remanded to try that issue. Hermann vs. Smith, 6 N. S. 161; Oakey vs. Phillips, Id. 306; Taylor vs. Jeffries, . 10 La. 438; Désormes vs. Désormes, 15 La. 15; Suc. Henderson, 2 Rob. 391; Suc. Lauve, 6 An. 579; Suc. Bailey, 24 An. 486.

These authorities are hot controverted or overruled by those cited by appellant, viz.: Payne vs. Ferguson, 23 An. 581, and Cooley vs. Cooley, 38 An. 197.

In the first, the allegation that appellant was a creditor was sustained by an authentic copy of his judgment annexed to his petition.

In Cooley’s case there was no denial that appellant was a creditor, ■but merely a genial of his right of appeal as. a legal consequence of his being a creditor.

We find some difficulty in .understanding the object of this appeal, •or how the judgment appealed from practically aggrieves appellants, since they were not parties thereto, and it can not operate as res Judicata against them. Sue vs. Viola, 2 An. 986; Williams vs. Trepagnier, 4 N. S. 343; Young vs. Cenas, 1 N. S. 308.

If, however, they are heirs, and desire to annul this judgment by ■ appeal, we cannot controvert their right to appeal. But they must • first establish their right and interest.

It is, therefore, adjudged and decreed that this cause be remanded to the lower court, with directions to the judge to hear testimony as ■to the heirship of appellants and their right to appeal.


text:
    No. 10,838.
    Henry Otis vs. James Sweeney.
    1. The general rule is that when the transcript presents no evidence, and no note oí evidence, this court will presume that the judge a quo had before him sufficient evidence to support his judgment, and will affirm the same; but this rule can not be applied, when the record shows that th'e judge acted without evidence, and upon consideration of the law only.
    "2. The plea of res adjudicata presents an issue of mixed law and fact, and a judgment sustaining it upon consideration of the law alone, and without evidence of the prior judgment propounded as its basis, is necessarily error.
    PPEAL from the Civil District Court, Parish of Orleans. Rightor, J.

      W. S. Benedict for Plaintiff and Appellant.

      •T. M. Gill for Defendant and Appellee.
   The opinion of the court was delivered bv

Fenner, J.

This, is an appeal taken from a judgment maintaining an exception of res adjudicata. We have nothing else before us.

The record presents a complete certificate of the clerk that it contains “all the proceedings had, documents filed, testimony and evidence adduced upon the trial of the cause.”

The record contains no evidence of any kind, and no note of evidence.

The appellee invokes the rule laid down by this court in many decisions that, in such a case, we will presume that the judge a quo had before him sufficient evidence to support his judgment, and will affirm the same. 39 An. 364, 883, 884; 34 An. 631; 33 An. 415; 26 An. 148, 734; 23 An. 293, 393, 446, 504; 22 An. 73, 118.

That presumption is properly applied in two cases, where the judgment-appears on its face to be based on a consideration of the law and the evidence, or where the record otherwise shows that the' judge acted on evidence.

But the record in this case fails to show that the judge received or acted on any evidence whatever, and, indeed, completely negatives the presumption that he did.

Thus the minutes show that the exception was submitted “ after hearing pleadings and counsel.” And the judgment recites, as its reason, only the statement, “ the law being considered and for the reasons orally assigned.”

These entries exclude the idea that the judge had before him or-considered any evidence whatever, and this is confirmed by the clerk’s certificate.

The plea of res adjudicata necessarily presents an issue of mixed law and fact. A judgment maintaining such a plea upon consideration of the law alone and without evidence of the prior judgment propounded as its basis, is obviously erroneous, and must be reversed.

We shall simply reverse, without, however, overruling the exception. It is, therefore, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the case be remanded to the lower court for a new trial of the exceptions and for further proceedings according to law, appellee to pay costs of appeal.


text:
    No. 10,848.
    A. G. Ricks & Co. vs. Board of Assessors.
    Capital, etc., employed in the manufacture of “ shoe uppers,” is not employed in, the manufacture of “ leather,” nor in the manufacture of “ shoes,” and is not exemnt under Art. 207 of the Constitution.
    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Buck, Dinkelspiel & Hart for Plaintiffs and Appellees.

      Carleton Hunt, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The only question presented in the case is whether plaintiffs, as manufacturers of “ shoe-uppers,” are exempt from taxation, under Article 207 of the Constitution,, which exempts “ capital, machinery, and other property, employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery,” etc.

Manufacturers of leather are exempt, and manufacturers of shoes are exempt. Plaintiffs do not pretend to manufacture the leather out of which their shoe-uppers are made, and, therefore, they clearly do not fall within that exception.

Are they manufacturers of shoes ? Obviously not. A shoe is ordinarily composed of uppers, soles and heels, sewed or otherwise joined together in such manner as to constitute an article of apparel for the feet. A shoe-upper is no more a shoe than is a shoe-sole or shoe-heel.

It is axiomatic that exemptions from taxation are strictly construed ; but even extreme liberal construction could not bring plaintiffs’ business within the grasp of the provisions of Article 207 of the Constitution. Nothing short of a judicial amendment of the Constitution could accomplish it.

The judgment appealed from is, therefore, reversed and annulled; and it is now adjudged and decreed that there be judgment in favor of defendants, and rejecting plaintiffs’ demand, at their cost in both courts.


author: Watkins, J.

text:
    No. 10,642.
    The State of Louisiana vs. Thomas Quaid.
    The game ordinarily known and designated as pin-pool is not a gambling game iu the sense of the Constitution and the law; and a city ordinance denouncing it as such is illegal.

      1 Murphy, J. PPEAL from the First Recorder’s Court of New Orleans.

      Oarleton Hunt, Oity Attorney, and Henry Renshaw, Assistant City .Attorney, for Plaintiff: and Appellee.

      Buck, Dinkelspiel & Hart for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from five different convictions and sentences to pay fines for alleged violations of Oity Ordinance 4034, Council Series, which denounces, as an offense, ■“ gambling with dice, cards, or other means,” or “keeping a banking game, or gambling house.”

The charge made in each of the several cases is as follows, viz.:

“That Thomas Quaid did then and there violate Ordinance 4034, •O. S., by keeping a gambling game known as pin-pool, upon which money is bet; said gambling game being played in the above-mentioned house,” etc.

The contention and answer of the defendant are that “ pin-pool is not a gambling game, and therefore (it) is not in the contemplation of (said) ordinance; and, in the alternative, it is alleged that, if said ordinance was intended to embrace the game of pin-pool (it) is illegal, null and void; that the business of keeping a “pool table is recognized as legal, by the State and city, which impose licenses •on same; and that these licenses were paid by defendant.”

The proof shows that the game of pin-pool 'is played on a table, •on which five pins are set in a small square, one being in the centre of the square, and each pin being numbered from one to five, respectively. The game is played by a number of persons, each one of whom uses a cue and balls, whereby the pins are knocked down, •and the player is credited on his score with the respective numbers of the pins thus knocked down. At the beginning of the game the-gamekeeper puts a number of marbles in a leathern bottle, on each one of which is a number printed, and, after thoroughly shaking it-up, he casts one to each of the players. These balls indicate the order of preference among the players, and each one is entitled to-credit on his score for the number marked on his ball. When, in the progress of the game, one of the players makes a total score of the precise number, fixed as the winning number, he is entitled to the pool, and it consists of the total amount the players contributed thereto.

The proprietor of the establishment furnishes the entire paraphernalia, and charges so much per game, according to the number of' players, and, as soon as the game has been completed, he deducts, same from the pool and the residue goes to the winner.

The players very frequently venture bets on the result of the game, but that is entirely optional with them. In such bets the proprietor has no interest and assumes no risk whatever. It matters not, so far as he is concerned, what the amount or number of the bets may be, the proprietor gets no more nor receives any less a consideration for the game.

The theory of the game is that the proprietor simply charges for-the use of the table and appliances, and it is of no consequence to him whether one or all the players pay for it, or whether the players, contribute ratably in money in advance, or agree ,that the fee be paid out of the pool by the winner. All of these things are purely conventional, and as agreed upon by the parties at the commencement of the game.

This game is not in any correct sense a gambling game, such as is. denounced in the Constitution'and laws. If the argument and reasoning on the subject needed reinforcement, the necessary aid would be supplied by the acts of the state and city, in demanding of and receiving from the defendant licenses for the prosecution of this business.

The “keeping of a gambling game” in the sense of the law, is. such as “ implies loss or gain between parties” who are participating in the game. But the defendant, as proprietor, is not a participant in the losses or gains incident to the result of the game.

That the players did engage occasionally in betting on the game,, did not constitute it a gambling game. On the contrary, it is ex-■elusively a game of skill, and does not contain any element of ■chance.

The ordinance in question does not rightfully apply to or legally ■embrace the game of pin-pool, and the convictions and sentences of The defendant were illegal.

It is, therefore, ordered and decreed that the judgments and ■sentences appealed from be annulled and set aside; and it is further ordered and decreed that the various proceedings and prosecutions against the defendant be abated and discontinued, and that he be relieved from the payment of cost.


author: Breaux, J. Watkins, J.

text:
    No. 10,725.
    D. R. Carroll vs. George W. Bancker.
    Plaintiff’s privilege, as lessor, upon the crop of sugar and molasses, was lost by him, as he did not, in accordance with Article 2709, of the Civil Code, and 288 of the C. P., seize it before it was shipped to the market to be sold, nor within fifteen days after it had been removed from the leased plantation.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Henry L. Lazarus for Plaintiff and Appellant..

      Biee & Armstrong for Defendants and Appellees.
    On Application por a Rehearing.
   The opinion of the court was delivered by

Breaux, J.

This suit has for object the enforcement of a lessor’s privilege on the proceeds of a crop of sugar and molasses consigned by one of the defendants to his commission merchant, who sold it in this city.

pleadings.

Plaintiff alleged that he had a privilege; sued for a writ of sequestration and prayed for judgment against George W. Bancker, the lessee.

Hernandez, the pledgee, was not made a party to the suit.

Notice of the writ which issued in the case against Bancker was ¡served on him on the day it was issued, viz.: December 8, 1886. On the 14th of December, on rule served on him, he was ordered to answer interrogatories in court, although he had not been made a party to the suit.

They were answered.

Evidence was heard on the trial of this rule.

On motion of plaintiff’s counsel, this rule was discontinued on ■January 27, 1887. On the 18th day of April, same year, plaintiff filed a supplemental petition alleging that defendants had conspired to defraud him, and that in consequence Hernandez had become responsible. Hernandez was at said time made a party.

An exception of no cause of action was filed and maintained, with leave to amend.

At a subsequent date another supplemental petition was filed, in which it was alleged that Hernandez knew of the lease made by plaintiff, and that he schemed with lessee to secure the sugar and molasses from the plantation leased, and to hastily sell it, in order to defeat the lessor’s lien. On issue joined the case was tried. The District Judge decided for plaintiff, and against the defendant, Geo. W. Bancker, for the rental, with legal interest.

The demand against Hernandez was rejected and tiie suit of sequestration dissolved.

From this judgment the plaintiff presents this appeal.

STATEMENT OF THE CASE.

The consignor, G. W. Bancker, in 1876, cultivated two plantations in the parish of St. Martin; one the property of his wife, the other, adjacent that of the plaintiff, from whom he leased, for $2000 per ■annum.

There was no sugar house on the leased place.

On the 7th of June, 1886, the defendant, Bancker, executed an act •of pledge, under Act 66 of 1874, in favor of Hernandez, to secure the sum of $2000, payable on the 15th day of December. This was ¡a loan to enable him to cultivate his crop. The pledgor obligated himself in this act to consign to the pledgee all the sugar and molasses made on the plantation as soon as ready for market, to be sold and the proceeds to be imputed to the payment of the amounts due ¡to the pledgee. The contract' shows that the plantation was leased by plaintiff to Bancker. This act was in dne time recorded in the clerk’s office.

Hernandez, whose testimony is not contradicted, testifies that the-note due by Bancker for advances “ was held as collateral.”

“ His account was to be paid as he shipped.”

Bancker, the only other witness who testifies with reference to-this matter, corroborates this testimony.

In September, Bancker shipped to his merchant, the pledgee, thirty-four barrels of molasses, proceeds of the crop on the leased place.

In October, one barrel, and the remainder of that crop was shipped at different times, from the 9th to the 24th of November.

The account of sales credit the proceeds of the sale of the last sugar and molasses made on the Carroll, leased, plantation on December 1.

The last entries on Bancker’s account, on the credit side, are:

1886.

Nov. 29, 8 bhds. of sugar.................................................................................$220 91

Dec. 1, “ “ “ “ 260 67

“ “ 10 barrels molasses.............................................................................. 115 86-

“ 4,16 hlids. of sugar....:....................................................................... 489 89

The last sugar, the sixteen hogsheads, were sold on the day notice was given to Hernandez of the sequestration.

These were not made on the leased plantation, but on the Bancker place.

The only testimony we have on the subject is the following by Bancker:

Q,. “Do you remember what were the last shipments made by you to Mr. Hernandez, prior to December 8, 1886? ”
A. “ The last shipment I made was eight hogsheads of sugar on the 80th of November.”
Q,. “ And next prior to that? ”
A. “ On the 29th of November.”
Q. “What did you ship then?”
A. “Eight hogsheads of sugar.”
Q,. “Where was that- sugar, those two lots, shipped from?”
A. “ They were from Mrs. Bancker’s plantation.”
Q. “ On which of these plantations, if either, had the cane which produced the sugar been raised?”
A. “ On Mrs. Bancker’s.”
Q. “ Had any portion of the cane, out of which these sixteen hogsheads of sugar were made, been raised and been at any time upon the plantation leased from Mrs. Carroll?”
A. “No, sir.”

This witness also testifies that the crop made on the leased place' was removed from the place more than fifteen days before it was. shipped to the merchant.

The cane was cut and hauled to the sugar house, and manufactured into sugar. This, he says, occupied more than that number of' days. In time the sugar and molasses were hauled to the depot; they were-marked in the name of the lessee, Bancker, in whose name the bills, of lading were issued and by whom they were mailed to the merchant.,

That it was all sold prior to the 2d December, Hernandez testifying states:

“ Sales had been rendered on the 4th of December, after the writ of sequestration had been seryed, sixteen hogsheads of sugar. That is all.”

His testimony and that of Bancker made it evident that this sugar was not from the Carroll place, also that the proceeds from the sale of the sugar from cane on the Carroll place was credited on Bancker’s account before service of the writ of sequestration, and that Hernandez did not know that the rental was still unpaid.

He testifies:

Q. “ Did you know, as a matter of fact, that Mr. Bancker had not. paid the rent to D. R. Carroll for the lease of the plantation? ”
A. “ I did not, sir. ”

No other witness testifies as to this matter except Bancker, who' corroborates Hernandez. Relative to undue haste in selling the crop, the only witness is Hernandez himself, who was called in and examined as a witness for D. R. Carroll, plaintiff, and testified that he did not know whether the sugar came from the plantation of Bancker or from that of plaintiff, and that he sold it on its receipt, as he sold other crops.

On the trial of the rule, which was afterward discontinued, the counsel for Hernandez admitted “ that for the purpose of this rule, but not as a matter of fact, that the sugar received from Mr. Banckerby Mr. Hernandez, was received by him on the days on which it was shown to have been sold, and that such date was the date of shipment from Mr. Bancker’s plantation.”

On the Merits.

Plaintiff has not argued that the fifteen days had not elapsed after the removal of the crop. That fact is referred to in his brief in the following terms:

“ While it is true that plaintiff did not assert his rights within fifteen days after the remo pal of the cane from the plantation, it is likewise true that when he did assert his rights, it was not by the application of the conservatory writ of provisional seizure.”

The question for solution is whether a lessor can recover the lessor’s privilege fifteen days after removal, on sugar and molasses consigned by the planter, in due course of business, to his merchant, to whom he is indebted for more than the amount of his crop?

The plaintiff contends that the second section of Act 66 of 1874 provides for the shipment of the crop by the farmer, and the right of the consignee to sell the property and appropriate the proceeds of the sale to payment of the amount due for such advances as may have been made thereon, but that the effect of the section is therein limited “ so that nothing shall be construed as to defeat or lessen the privileges of the laborers and landlord in this State for wages and rent as now existing by law,” and in argument directs attention to the fact that the act of 1874 was amended in 1882, by extending the reservation so that the removal of the property and its consignment to the merchant would not have the effect of defeating or lessening ■“ any other valid existing privilege or lien.” Act 44 of the Acts of 1882, page 56.

These statutes have not added to the security of the lessor, nor have they repealed Article 2709 of the Oivil Code.

“In the exercise of this right, the lessor may seize the objects which are subject to it before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee and can be identified.”

The effect of removal of property subject to the lessor’s lien has received corroboration in a number of decisions.

In Dennistown vs. Mallard, 2 An. 14, relied upon in support of the proposition that the privilege after the fifteen days have .elapsed since the removal of the property, the court held that those who opposed the lessor’s lien could not place themselves in a better position by fraudulently removing the goods beyond' the landlord’s reach and frustrating his search.

The goods had been clandestinely removed, in the night time, by ■one who was not a purchaser in good faith.

The plaintiffs, by supplemental petition, made the purchasers parties to the suit, and- charged that the assignment was a fraudulent preference, to deprive them of the landlord lien'.

The court decided that it was a fraudulent -preference by an insolvent debtor, and that there was, besides, a breach of good faith toward the landlord, and a violation of his rights in the removal of the goods, and that the ^object of the removal was to defeat the lien.

There is marked dissimilarity between that case and the case at bar.

'The latter is not a revocatory action.

It is not alleged that the defendant is insolvent. It is not proven that the party, “ with whom the debtor contracted, was in fraud, as well as the debtor.” O. O. 1982.

In Desban vs. Picket, 16 An. 350, it was decided, on the authority of Article 2709 of the O. O., that the lessor’s right of privilege for the payment of rent on the movable effects of the lessee, was extinguished by the removal and sale of the effects of the lessee, for a valuable consideration, although fifteen days between the removal by the lessees and the seizures by the lessor'had not expired.

Similar conclusion was reached in St. Charles Hotel vs. Tarbox & Co., 23 An. 775.

In Washburn vs. Frank, agent, 31 An. 427, the testimony established that the property was removedjtoldefraud the lessor, and that .a simulated sale was made to defeat the privilege.

If the plaintiff had proven the allegations of fraud, these decisions would apply, and our conclusion would be different.

Without any evidence of fraud, the court will not order an amount realized on a crop openly manufacturedj'.and placed on the market, to be paid by the pledgee to the lessor, who remained in.active until several days after the sale.

Reverting to the decisions quoted, why would the court dwell upon the issue of fraud, and decide it, if the landlord’s privilege is not limited to fifteen days after removal.

With or without fraud, it would be subject to the privilege, and •there would be no necessity to prove it, in order to recover.

The consignment of the crop can not have the^effeeb of defeating or lessening any other valid existing]privilege or lien.”

The sale was made and the proceeds credited before any rights were asserted. They present this insurmountable difficulty to the recovery of plainciff’s claim.

The sale of this crop was not made pendente lite, in so far as Hernandez is concerned.’ If it be conceded that the mere notice given on the 3d of December was sufficient to bring the property within the grasp of the law, although no copy of the petition nor citation were served on the merchant, only a notice of a writ as having issued against Bancker, it is made manifest by the uncontradicted testimony of the only two witnesses who testified with reference to that matter, that the crop from the Carroll place had been sold before this notice was given, and at least four months before Hernandez was cited.

’The writ of sequestration, issued in the usual form in a suit by plaintiff against his lessee, in executing the writ a notice given to third person will not make him a party to the suit and compel him to deliver the proceeds of property properly sold, and for which he contended he held a superior claim.

The plaintiff earnestly contends that the lessor’s privilege should be construed as in the seizure of property by the sheriff on which the lessor has a privilege.

That officer holds the property or the proceeds of its sale subject to the legal rights of the creditors. It is in that case the possession of the law for the protection of their rights. It is not in commerce to the detriment of the creditors, but is held that their right may be determined.

In any case a privilege is lost if the property can no longer be identified. But when in due course of business, property is sold and the proceeds are applied to the payment of the pledge to a creditor, without objection after the fifteen days succeeding its removal, Articles 2709 of the C. C. and 288 C. P. apply.

When the case was tried on its merits, the following entry was-made: “ Counsel also offers and introduces in evidence the testimony of Charles H. Hernandez, taken in this suit in open court, on January 21, 1887,” i.e., the testimony received on the trial of the discontinued rule.

We have not given any effect to this admission, for the reason that it was part of the evidence on a rule discontinued.

An admission is not reproduced when the testimony of a party to. the suit is offered and admitted without any reference to the admission of counsel on the trial of a previously discontinued rule. The offer of the testimony of a witness taken in another case does not carry with it an admission of counsel of record.

It was not the evidence of the defendant in rule that was offered as admitted, but his testimony as a witness.

“The testimony is a species of evidence by means of witness.” The broader term, evidence, includes that which is given by witnesses or afforded by documents.

If the admission on rule were before the court, what would it prove? That for the purpose of the trial of the rule — not as a matter of fact — “the sugar was shipped from Banckér plantation on the day it was received and sold by Hernandez.”

The admission must be given effect as a whole, which amounts to the following:

That, not as a matter of fact, bi^t for the purpose of the trial of the rule, sugar was shipped, etc.

This does not cohfliet with the testimony of the uncontradicted witness, that the crop was removed from the plaintiff’s place more than fifteen days before it was shipped to the merchant.

The plaintiff’s privilege was lost.

On an application for a rehearing by plaintiff, an oral argument was heard. The case having been considered, the previous decree of this court may be set aside, and the case decided without granting a rehearing.

It is now ordered, adjudged and decreed that our former decree be set aside, and that the judgment of the District Oourt appealed from is affirmed at appellant’s cost.

On Application for Rehearing.

Watkins, J.

This case presents a controversy between Carroll, as the lessor of Baneker, and Hernandez as his factor; and, as the proceeds realized from the products raised on the leased premises are insufficient to pay both, the question for decision is, whether the former is entitled to preference in receiving payment therefrom over the latter.

Baneker shipped his entire crops of sugar and molasses to Hernandez for sale, and when sold they realized 11845.14. Sales of products were made antecedent to the institution and s'ervice of this suit, but notification thereof was not given to Bancker until afterwards. At date of suit, Carroll’s rent was due, but the supply-account of Hernandez was not; therefore, when suit was filed, no application of the proceeds had been made, or could have been made by Hernandez; but same were in his hands, as the factor and agent of Bancker, his customer.

Hernandez’ claim and pretension are, that he had applied the proceeds to his supply-account, though subsequent to his being notified of Oarroll’s suit, and, confessedly, before his account was due.

Hernandez had no legal right to thus appropriate to himself the identical thing that was involved in Carroll’s suit, pendente lite. Rev. Civ. Code 2543; Act No. 4 of 1878.

Hernandez’s relation to the proceeds in his hands was that of factor of Bancker. Lallande vs. His Creditors, 42 An. 705.

We must, therefore, deal with the proceeds in his hands in the precise situation they were at the date Carroll served Hernandez with notice. Now, what was that situation?

On the 9th of June, 1886, Bancker executed an act of pledge in favor of Hernandez upon the crops to be grown on the plantation he had leased from Carroll, knowledge of which Hernandez confessed in the act. In that act Bancker contracted to ship the crops to Hernandez, and authorized him to sell the same and apply the proceeds to his account.

This act was drawn in pursuance of the terms of the Act of 1874, which confers upon the factor a right of pledge subordinate to the lien of the lessor under the provisions of the Civil Code; for that statute declares that nothing therein “ shall be so construed as to defeat or lessen the privilege of the landlord for rent.” Hence, it is clear that the stipulations of the act were binding on the parties, but not on Carroll, the lessor — the pledge of the act being subordinate to the privilege conferred by law on the landlord for rent of land.

Therefore, the question is, can the lessor’s lien be defeated by a removal of the crops from the leased premises by the lessee, their shipment to his factor, and his conversion of them into proceeds?

I.

Claiming the right to apply the proceeds to. his account against Bancker, by reason of the pledge he acquired under the Act of 1874,

Hernandez seeks to defeat or lessen the privilege of (Oarroll) the landlord for rent,” in direct violation of its express prohibition.

Notwithstanding the Code of Practice declares that the lessor’s-lien may be enforced against the objects affected by it “ in the-hands of third persons” within fifteen days after removal from the-leased premises, it does not declare that same can not be seized after the lapse of fifteen days, if same continue to be the property of the lessee, notwithstanding their removal from the leased premises.

Surely, such would be an absurd declaration for the Code to make, because the property of an ordinary debtor may be seized, anywhere it is found, under ordinary process; and it is not readily perceived why the law should plácé the lessor at so great a disadvantage as this suggestion would imply.

Hernandez does not possess the products, or their proceeds, as owner, but as the factor of Bancker, his customer. Lallande vs. His Creditors, 42 An. 705.

At the date of service, Hernandez had not applied them to his account, and he was not permitted to do so afterward. R. O. C! 2548.

Bancker’s indebtedness was not then due.

Hernandez was not a third person, in respect to Carroll, or Bancker; and Hernandez can not interpose his possession as factor, with any greater show of success than Bancker could, against the demands of Carroll, his lessor. R. C. C. 2709; C. P. 288.

Whatever judicial opinion may have prevailed in respect to the-provisions of the Codes, it is certainly true that Hernandez can not claim any precedence over Carroll, under the prohibitive terms of the statute on which he founds his right. It is of no importance to inquire whether fifteen days had elapsed or not, for the act declares that its provisions shall not be so so construed as to defeat or lessen the privilege of the landlord for rent of land.

Whatever may be the measure of protection accorded to third persons and bona fide purchasers, by the provisions of the Codes, it is quite certain that the act of 1874 accords none to the factor over the lessor’s lien for rent.

Hernandez can not escape the prohibition of the act. It was not in the power of Hernandez and Bancker, by any covenants of theirs, to defeat or lessen Carroll’s lien for rent; neither by the pledge of the crops, their shipment, sale, or application of the proceeds — all, alike, coming under the effects of the prohibition of the statute.

Hernandez’s conversion of the products into proceeds, which remained in his hands as factor of Bancker, did not impair Carroll’s right. In my opinion, Dennistown vs. Mallard (2 An. 14) is applicable to the question at bar.

It appears that the plaintiff leased a small shop to Mallard, who, being in insolvent circumstances, made a sale of his stock to certain of his creditors, without paying his rent.

The court say:

“We entirely agree with the judge of the lower court in the conclusion to which he came, both that the assignment was a fraudulent preference by an insolvent debtor, and that there was besides a breach of good [faith towards the landlord, and a violation of his rights in the removal of the goods. We consider the court below as justified in the opinion that the agent of (the creditors of the lessee) was aware that the lessor had not been paid, and that the object of the removal was to defeat (the lessor’s) lien. It is said that the lien was gone, because it was not exercised within the fifteen days by a levy on the property,” etc.
4 $ ‡ $ $ $ *
“It is clear that the landlord’s lien is superior to that of the vendor who has made delivery, and it can not be contended that (the creditors of the lessee) could place themselves in a better position by fraudulently removing the goods beyond the landlord’s reach, and frustrating his search. To recognize such a doctrine would be to say that a party could, by his own wrong, place a fair creditor in dv/riori cam.”

While it is true that Hernandez did not possess himself of the crops of Bancker fraudulently, but through the instrumentality of his contract of pledge, he is none the less attempting to breach the contract rights of Carroll, the lessor of Bancker, by appropriating their proceeds in direct violation of the statute.

Hernandez knew of Carroll’s, lease to Bancker, as it was mentioned ' in his act of pledge to him.

He must have known thatjOarroll’s rent had not been paid, as the total proceeds of Bancker’s crops are in his hands. It is manifest, that in thus attempting to impute said proceeds to his own account, Hernandez sought to defeat the claim of Carroll for rent, in spite of the act of 1874,-and, as this court said, Mallard and his creditors could not do. It was of no consequence that the fifteen-day limit had expired. Hernandez does not possess as owner, and is not, in .any sense, a third person. He was, in duty bound, to abide, as a .faithful agent and custodian, the prohibition of the statute, and deal fairly by the landlord, of whose rights he was advised.

II.

Hernandez founds his right of detention of the proceeds exclusively on his contract of pledge, under the Planter’s Act of 1874.

' That act confers only the right of pledge, for it says:

“ That, in addition to the privilege now conferred by law, any planter or farmer may pledge his growing crops of cotton, sugar or other agricultural products, for advances of money, goods and necessary. supplies * * * which recorded contract shall give and confer on the merchant or other person advancing money, goods and necessary supplies, for the production of said agricultural products, . a right of pledge upon the crops,” etc. Section 1 of Act 66 of 1874.
It confers no lien or privilege whatever. This pledge is, in terms, ■subordinate to the lessor’s lien, under existing laws, for it says:
“Nothing herein shall be so construed as to lessen, or to defeat the privilege of the laborers and landlords in this State, for wages and rent, as now existing by law.” Ibid, Sec. 2.
What, then, is the lien which the law then existing conferred on a lessor?

The Civil Code declares it to be a privilege on the crops of the year. R. C. C. 3217.

But, in addition to this privilege, the law declares that the lessor has “for the payment of his rent, etc., * * * a right of pledge •on thd movable effects of the lessee,” etc. R. C. O. 2705.

Privilege and pledge are totally different things, for the Code says: them to ■ said factor for sale, although the plantation be one the-farmer has leased.

Privilege is a right the nature of the debt gives to a creditor, and ■enables him to be preferred before other creditors, even those who have mortgages” (R. C. C. 3188); but “a pledge is contract by which a debtor gives something to his creditor as a security for his -debt.” R. C. C. 3133.
Therefore, the effect of the act of 1874 on the farmer was to authorize him to pledge in advance a growing crop to his factor, for future advances, and to remove them from his plantation, and ship

To this extent the statute enables the planter to impair, or lessen,, the landlord’s right of pledge — just as an ordinary creditor of the-lessee might do by affecting a seizure under fi. fa. and making sale of crops pledged to a lessor. To this extent the provisions of the-Civil Code are amended by implication. But the statute does not-enable a planter, or factor, to defeat or lessen the landlord’s lien on. the crops or their proceeds.

The right of any ordinary creditor to seize and sell crops that are-stricken with a lessor’s pledge and convert them into proceeds, and thus relegate the landlord to the assertion of his lien thereon, by way of third opposition, is “ everyday practice,” and it is sustained, by numerous authorities.

On this question, it is only necessary for me to cite the case of Pickens vs. Wister, 31 An. 870, wherein all adjudicated cases are-carefully collated and compared, and in which the .court, with deliberation, held and affirmed the correctness of this doctrine.

The interpretation which our original opinion places upon the act. of 1874 rests upon the same foundation as those authorities do.

The true conception of the Legislature in adopting that statute-appears to have been to enable the planter, under the exceptional circumstances stated therein, to ship his crops to market, and his-factor to sell same and convert them into proceeds; but in so doing, it did not intend to authorize either ‘ ‘ to defeat or lessen the landlord’s lein for rent.”

Under the provisions of this act the landlord’s rights and remedies-are precisely the same as though the crops had been seized and sold under fi. fa., and the proceeds placed in the custody of the sheriff. In lieu of such legal custody, the Act of 1874 supplies the trust of the factor.

In no case or event does either a lien or right of pledge prevent a. sale of the thing pledged or affected thereby, for the Code says:

“ The pledgee acquires the right of possessing and retaining the-movable which he has received in pledge as a security for his debt,. and may cause it to be sold.” R. C. C. 3220, 3165.

These are the articles which authorize an ordinary creditor to-seize and sell pledged goods and effects, as the Act of 1874 does the factor of the lessee, and thereby the creditor’s lien, in each case, on. the thing is not extinguished, but transferred to the proceeds, which', may be distributed ratably and in concursu.

In construing these provisions the court said, in Robinson vs. Staples, 5 An. 712, that “ the Article 2675” — the present article being 2705 of the Revised Edition — of the Civil Code, declares “that-the lessor has, for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee.

“The right to levy a provisional seizure, even before the rent is. due, is given by the statute of 1839 to the lessor, who has reason to believe that his tenant is about to remove his property. We do not-consider this statute as creating the privilege, but as providing a conservative remedy for its enforcement.

“ It is not, therefore, well argued by plaintiff’s counsel, that the lessors can not have their privilege in this case, because they did not make a provisional seizure under the statute.”

In that ease the landlord’s lien was recognized and enforced on the proceeds in the sheriff’s hands, and under the statute of 1874,. Carroll is equally entitled to take them from Hernandez.

III.

In my opinion, the fifteen-day limit fixed in the Civil Code exclusively relates to the pledge of the landlord, and not to his lien and. privilege for rent.

It says: “ The lessor has for the payment of his rent and other' obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the premises leased.” R. C. C. 2705-(2675).

In a subsequent article, in the same connection and chapter, it. says:

“In the exercise of this right, the lessor may^seize the objects-which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the-property of the lessee, and can be identified.” R. C. C. 2709 (2679).

The words of this last article, to-wit: “in the exercise of this right” — clearly refer to “the right of pledge,” mentioned in the former article.

• The lessor’s privilege is not mentioned anywhere in the title “ of lease ” in the Code.

The gravamen of said two articles is, that the right of pledge may be exercised within fifteen days, 'if the property continues to be that of the lessee, which, under those articles, is a sine qua non. Those articles confer no right of ^ enforcing this conservative remedy against goods which have been alienated by the lessee. This is the law of pledge. It is the Code of Practice which confers on the lessor the right to provisionally seize the goods of a lessee in the hands of a third person, within fifteen days. , That is a method of procedure in the enforcement of the lien of the lessor, and not a matter of law.

That such is the case, the decisions that are quoted in the present opinion of the court will attest.

Por, in Desbau vs. Pickitt, 16 An. 350, the court said:

“The right of seizure after removal is made to depend upon the ■continued ownership of the lessee.”

The same is true of the case of St. Charles Hotel Company vs. Tarbox, 23An. 715, in which the court stated:

“In this case the evidence shows that the furniture claimed by the intervenors had ceased to belong to the lessee ” — citing Desbau vs. Pickitt.

According to my reading of those two cases, there is nothing therein to indicate that seizures were made after the lapse of fifteen days, and, hence, there could have been nothing decided therein in reference to the extinction of the lessor’s lien on that account.

Those cases turned, exclusively, on the fact of sale having been made by lessee; and, as it is not pretended that Bancker has disposed of the proceeds of his crops to any one, those decisions do not apply to the case at bar.

How can a mere failure to exercise a remedy provided by the Code of Practice, which is merely permissive — “may seize, even in the hands of third persons,” says Code of Practice, 288 — extinguish a privilege which the nature of the debt confers upon the lessor? Surely, the debt itself is not thus extinguished, and the effects which are ■stricken with the lessor’s lien may be removed before the debt falls due.

If it be true, as the court decided in Dennistown vs. Mallard, that a lessor’s lien could be successfully asserted against movable prop■erty after the expiration of fifteen days, because they had been fraudulently removed; if it be true, as the court held in Pickens vs. Wister, that an Ordinary creditor can break the lessor’s pledge by a seizure under fi. fa. ahd relegate the lessor to the proceeds; if it be true, as the court held in Robjnson vs. Staples, that Oivil Code, 2705, does not cchifer a privilege, but a right of pledge only, as a conservative remedy for the enforcement of a privilege, what becomes of the theory that *the property affected with a lien must be seized within fifteen days, or it is lost?

But those decisions are in perfect keeping with the Oivil Code, which declares, viz.:

“Privileges become extinct:
“ 1. 'By t.he extinction of the thing subject to the privilege.
“ 2. By the creditor acquiring the thing subject to it.
“3. By the extinction of the debt which gave birth to it.
“4. By prescription ” (of the debt). R. O. O. 3277.

Unless a sale be considered the extinction of a thing stricken with the lessor’s lien and right of pledge, the lien of Oarroll has not yet become extinct. If that be true, however, then all those cases were, necessarily, decided wrong.

That principle which in those cases the courts decided as a matter of jurisprudence was, in the Act of 1874, consecrated as matter of law, viz., that its provisions should not be so construed as to defeat or lessen the lien of the landlord for rent.

It is that principle which, in my opinion, the present decision of the court sets at naught.

IV.

But conceding, for the argument, that all of the foregoing propositions are not well grounded in law, and that the failure of the landlord to assert his privilege on Bancker’s crops within the fifteen-day limit was fatal to his claim, let me examine and see how the case stands in point of fact.

The contention of Hernandez’s counsel is that the evidence shows that the crops of Bancker, grown on the premises he leased from Oarroll, had been removed more than fifteen days when Carroll’s suit was filed.

The statement of Bancker in some respects gives color to this contention, but the admission of Hernandez (the purport of which is given in the original opinion) negatives its effect, and it is binding on him.

(a) Counsel for Hernandez denies the force and correctness of his ■alleged admission, and he also denies that such admission was offered and filed in evidence on the trial of the merits of the cause.

The present opinion of the court accedes to this view, and as the only fair way of reconciling conflicting statements of fact is to refer to the transcript, I will submit to that test the accuracy of the statement contained in the original opinion of the court.

On the 21st of January, 1887, certain testimony and notes of •evidence” were taken by E. M. Brewer, stenograper, in behalf of Carroll, plaintiff in rule, in presence of H. L. Edwards, counsel for plaintiff, and Charles S. Rice, counsel for defendant. Transcript, page 7.

The notes of evidence show that “Mr. Charles Hernandez, witness,” was “called on behalf of plaintiff in rule,” and was duly ■sworn on “direct examination.” Transcript, pages 8, 9, 10, 11 and 12.

Same witness was cross-examined. Transcript, pages 12 and 13.

At the conclusion of that witness’ cross-examination, on page 13 ■of the Transcript, is to be found the following admission, viz.:

“ For the purposes of this rule, but not as a matter of fact, it is admitted that the sugar received from Mr. Bancker by Mr. Hernandez ■was received by him on the days on which it was shown to have been sold, and that such date was the date of shipment from Mr. Bancker’s plantations.”

Then follows immediately this phrase:

“ Mr. Hernandez recalled by Mr. Edwards.” Transcript, page 13.

All of this transpired on the 21st of January, 1887, on the trial of plaintiff’s rule, and on the 17th of June, 1890 — just two days prior to the date of the judgment that is appealed from — the following occurred, viz.:

“ Counsel offers and introduces in evidence, on behalf of Charles .Hernandez, the account marked ‘A,’ with reference to his evidence.”
*#***#*#
“Also offers and introduces in evidence the testimony of Charles .Hernandez, taken in this suit, in open court, on January 21, 1887.
“Both sides closed.” Transcript, page 55.

The foregoing is an exact reproduction of extracts from the transcript, and I candidly and confidently submit, that said admission formed part of the defendant’s evidence in the trial of the rule. It is physically incorporated in it, and, as such, appears in the transcript. On the trial of the merits of this case, the testimony of Hermandez, taken on the trial of the rule, was offered and filed in evidence on his behalf, though the rule had been discontinued. This is :shown by reference to name, date and case; and across the face o the evidence is plainly written this endorsement, viz., “Filed June 17, 1890,” corresponding with the minute entry quoted above. Tran.script, page 7.

If there is any escape from the conclusion that said admission was ■offered and filed in evidence on the trial of the merits, I am at a loss to discover where it.is.

(6) But learned counsel is pleased to submit that the so-called admission was, in point of fact, no admission at all; and, with apparent seriousness, immediately quotes statements selected from the brief of plaintiff’s counsel as completely binding on him.

That an admission of defendant’s counsel, made in open court, in the presence of his client, then on the witness stand, incorporated in his written testimony, and brought up in the transcript unaccompanied by any statement of error, does not bind the defendant, while a statement of fact, volunteered by counsel for plaintiff, in his brief, is conclusive on his client; that the declaration that, because an admission of record is prefaced by the words, viz.,

“ For the purpose of this rule, but not as matter of fact, it is admitted,” etc., — it is not the admission of any fact — are propositions I ■can neither appreciate nor argue.

(c) But, further, conceding for the argument, that all we have -.said is unfounded, and how does the case stand on the evidence of Hernandez and Bancker? Let me see.

Bancker testifies as follows, viz.:

“ Q,. How many days are occupied from the time the cane is laid down at the sugar house, until the sugar is ready for shipment? Necessarily occupied in the manufacture of sugar before it is ready for shipment?
“ A. From seven to nineteen days.”

This is from his direct examination on behalf of Hernandez. Transcript, p. 89.

Again:

“ Q. When did you ship this sugar you made on Carroll’s place to .Hernandez? You testified that the last shipment was off the Bancker place. Now, I wish you would fix the date of the last shipment yon made of sugar made from the cane raised on the Carroll place.
“A. From the 9th to the 24th of November.” Transcript, pages 32 and 33.

Again:

“ Q,. How, then, could you, by looking at the account, distinguish, it from the molasses made on the Bancker place?
“A. For the reason that I shipped all the sugar and molasses from the Carroll place before I ground the cane on the Bancker place."
“ Q. When was the first shipment made from the Bancker place?
“ A. Made on the 29th of November." Transcript, page 38.
Again (on cross-examination he said) :
“ Q. From the time the sugar left on the 29th and 30th to the 3d of December, it was not fifteen days?”
“A. No, sir.”
********
“ By Mr. Bice:
“ Q,. All the'sugar on the 29th and 30th, and thereafter, was from Mrs. Bancker’s plantation?
“A. Yes, sir.” Transcript, p. 42.

Inasmuch as from seven to nineteen days are required for the manufacture of sugar, ready for shipment, and from the fact that the last shipments of sugar and molasses from the Carroll place were made between the 9th and 24th of November — it does not affirmatively appear that any part of same was either manufactured off the Carroll place or shipped therefrom more than fifteen days prior to the institution of this suit the 3d of December, 1886.

But, -inasmuch, as Bancker admits that the first shipment from his wife’s plantation was made on the 30th of November, it is thereby tacitly admitted that all sales antecedent to 30th of November were made of the crop raised on the Carroll plantation.

The burden of proof being on Hernandez, it was his duty to have made out this defense clearly and satisfactorily.

When interrogated on this question, he said:

Q,. Did you receive any sugar from the plantation owned by Mr. Carroll, from the parish of St. Martin, leased by Geo. W. Bancker, and shipped by Geo. W. Bancker during apy day within fifteen days, dating from the 3d of December?
“A. I would have to refer to my books to be able to answer that question, though my account will show it.” Transcript, p. 9.

Recurring to Hernandez’s account, to be found on pages 60 and 62 of the transcript, and we find and extract therefrom the following data, to-wit:

November 22, By 11B. Molasses............................................................................. $84 87
“ 23, 6 “ 45 61
“ 26, 12 “ 120 24
“ “ 6 H. Sugar................................................................................ 182 88
“ 27, 10 “ 302 47
“ “ 6 B. Molasses ....................................................................... 71 53
“ 29, 8 H. Sugar................................................................................ 220 91
Aggregate value.............................................................................................$1028 01

This is the identical amount that is stated in our original opinion, to be “the net amount realized from crops which were shipped from the Carroll place within fifteen previous to the institution of this suit, and notification of plaintiff’s writ to Hernandez, and the sheriff’s demand on him for the crops or their proceeds.”

It was on that evidence that our original opinion proceeded, though it was not therein reproduced, as it now is.

I respectfully submit, that whatever may be said on the question of law, in reference to that part of the crops that were shipped antecedent to the fifteen-day limit, Carroll is, at least, entitled to judgment for $1028.01, as the amount of the proceeds of that part of the crops that were shipped from his plantation within said limit. I therefore adhere to the views expressed in the original opinion of the court, and dissent from those expressed in the present opinion of the court.


text:
    No. 10,748.
    Antonio Augusti et al. vs. Widow and Heirs of E. J. Lawless.
    The showing made by appellees justifies a reconsideration of our final decree against them and a remanding of the cause.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Moise & Titche for Plaintiffs and Appellees:
    1. In a suit to annul a sale, made under Act 82 of 1884, where it is alleged, (1) that the assessment was not made in the name of the recorded owner; (2) that the owner was dead at the time the assessment was completed; (3) that the assessment was illegal at its date; and (4) that the description of the lots and the numbers thereof in the advertisement were not correctly given according to the recorded title, does not assail the fact of assessment or advertisement; but is directed against non-essential prerequisites, which are concluded by the deed of sale. Sec. 3, Act 82 of 1884; In re. Lake, 40 An. 142; In re. Douglas, 41 An. 765.
    2. Under such allegations evidence is inadmissible to prove there was not in fact an assessment or an advertisement. 40 An. 142.
    3. The act of payment of the tax is a recognition and adoption of the mode and manner of the assessment. Palmer vs. Board of Assessors, 42 An. 1127; Ins. Co. VS. Levi, 42 An. 432; 33 An. 416 and 532.
    4. The name of the owner is part of the description, and may be a designation absolutely certain in identifying the property. 2 An. 253; 32 Penn. St., pp. 55,57; 58 Penn. St. 290, citing 1 W. & S. 166; Desty 567, citing 66 Penn. St. 229, and p. 568, citing 22 Cal. 373.

      5. Property may be identified and designated with sufficient certainty otherwise than by numbers of lots. 29 An. 639; 24 An. 619. Marks and surveys are not the exclusive indices. 32 Penn. St., pp. 55, 57; 18 Penn. St., p. 151; 58 Penn. St., p. 290; Desty, 567, 568.
    8. If the fact of assessment and advertisement is considered an issue under the pleadings, the case should be remanded, as plaintiff was surprised and did not attempt to prove these essential facts, which could easily have been done.

      W. S. Benedict, contra.

   On Application for Rehearing.

Fenner, J.

On the showing made by plaintiffs and appellees, in this application, we conclude that the interests of justice will be subserved by remanding this case for fuller proof as to the facts •concerning the assessment and description of the property.

It is, therefore, ordered and decreed that our former decree be :aménded by rescinding that portion thereof which perpetuated the injunction, and by inserting, in lieu thereof, our order that the case be remanded to the lower court for further proceedings, according to law, costs of this appeal to be paid by appellees, and those of the lower court to abide the final result; and that, in other respects, our former decree remain undisturbed.


author: McEnery, J.

text:
    No. 10,820.
    The State ex rel. Thomas Curtis vs. Stevedores & Longshoremen’s Benevolent Association.
    When persons enter into a voluntary agreement and incorporate themselves into an association for the purpose of carrying out the objects and purposes of the association, and one of the members violates the rules of the association, and is fined, and dismissed for non-payment of the fine, he can not complain, if the objects for which the association were created are not contrary to public policy, some statute regulation, and the fine imposed was not against natural justice and the fine and dismissal were in pursuance of the rules and regulations of the association.
    When two labor organizations, in the same line of business, meet in conference and adopt rules for the government of their members; and these rules are afterwards adopted by each association, and are not in conflict with the constitution and by-laws of the association adopting them, they will be considered as additions to its constitution and by-laws.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      H. H. JBryan for Plaintiff and and Appellant:
    1. A corporation having adopted rules and regulations, known and called constitution and by-laws, for its government and the police of its members, and having provided thérein for the mode and manner in which such laws can be changed, no change, alteration, or amendment, in such rules and regulations, are valid and binding, unless such changes and alterations have been made in accordance with the provisions therein contained and made for that purpose. B. C. O. 445.
    :2. By-laws of a corporation, which are unreasonable, vexatious or oppressive, or foreign to the objects and purposes of the charter, or contrary to law or public policy, or in restraint of trade, are invalid, ultra vires, and can not be enforced against a member of the corporation. Boone on Corporations, p. 68, verbo ByLaws, Chap. V, Sec. 58; New Orleans vs. Phillipi, 9 An. 44; State vs. Bank of La. 5 N. S. 344; B. O. O. 433; Bev. Statutes 1870, Sec. 680; High, Mandamus, Sec. 295; Am. and Eng. Encyclopedia of Law, Vol. 2, p. 706, verbo By-Laws, No. 3.
    • 3. A member of a corporation illegally expelled for violation of an invalid rule or . regulation will be restored by writ of mandamus. C. P. 835, No. 2; High, Mandamus, See. 295.
    • 4. A rule or regulation of a corporation chartered for charitable purposes, that a member can not leave one ship to work on another until five hours have elapsed since work ceased on the first ship, under a penalty of a fine of $10, is invalid, and will be so declared by the court.
    .5. Every corporation of the State, whether public or private, is subject to the superintending control of the courts, and the superintending and visitorial power of the court can and will be always exercised to keep these corporations within the limits of their lawful powers and to cure and punish abuses of their franchises, commonwealth ex rel. Binns vs. St. Patrick’s Society, 2 Binns, 441; People ex rel. Boehler vs. Mechanics’ Aid Society, 22 Mich. 86; State ex rel. Cuppel vs. Chamber of Commerce (Milwaukee), 3 N. W. Beporter, 760; State ex rel* Waring vs. The Georgia Medical Society, 38 Ga. 608.

      Henry P. Dart for Defendants and Appellees:
    H. There are two labor organizations — the defendant and another — primarily benevolent, and also designed to aid and protect their members between themselves and against non-members. These organizations have made certain rules-for the government of their members, when working at their occupation, and in said rules a tribunal called the “ Conference Committee ” was created to try, and assess the penalty for, infractions of the same. These rules were legally adopted by both associations under the authority to create by-laws, rules and regulations for their government.
    2. Relator was a member of the defendant organization at the time these rules were adopted, and made no protest against the same, but acquiesced therein, and was once tried and fined for an infraction thereof, and paid the fine; subsequently he was again charged with violation of the rules, was brought before the committee, tried and foui*d guilty, and a fine levied against him, each step of the proceeding being conducted in strict conformity to the rules. Under these rules the fine assessed against the member could 'only be collected from him by this association, there being no power lodged in the conference committee to enforce its decrees by expulsion or otherwise.
    3. The defendant has in its charter and by-laws a provision that each member must pay and settle his arrears within a stated period, otherwise he shall be considered as having renounced the association and shall have* his name stricken from the books. Yo notice of his delinquency is required. In this case, however, relator was well informed of his delinquency, and made sundry efforts to have the fine rescinded, without avail. I-Ie exhausted much time in these efforts, and the delay having expired, the association, in open meeting, dropped him from the roll, under authority of the provision of the by-laws above quoted.
    4. Under this state of facts, it is contended that the by-laws, charter, and conference rules are equivalent to a contract between the members. That the tribunal created by the conference rules had power to examine into the alleged infraction of said rules, and that it did exercise that power fairly and honestly, and having exercised the power, the courts are without authority to examine into its decision, except it can be shown that the rules were immoral, contrary to public policy, or in contravention of the law of the land,.or that the decision was made in bad faith, through malice, or without a notice and opportunity to be heard. In brief, that a member can not complain of an expulsion fairly conducted under the rules of the association, unless those rulés be against natural justice. Eng. and Am. Enc. of Law, Vol. 2, p. 72 etseq., Beneficial Associations; Beach on Private Corporations, Sec. 83 et seq., p. 159 et seq.; Dawkins vs. Antrobus, L. R. 17, Oh. Div. 615; 44 L. T. 557; 29 "Week. Rep. 511; Otto vs. Journeymen Tailors’ Union, 75 Cal. 308; S. C. 7 Am. St. Rep. 163. See, also, note and authorities therein accumulated attached to said case. Karcher vs. Sup. Lodge K. of H., 137 Mass. 3G8-372; Robipson vs. Gates City Lodge, 86 111. 598; 20 Hun. 87; 104 U. S. 252.
   The opinion of the court was delivered by

McEnery, J.

This is a proceeding for a mandamus brought- on the relation of Thomas. Curtis against the Stevedores and Longshoremen’s Benevolent Association on the allegations in substance: That relator is a resident of the City of New Orleans; that he was a member of the Stevedores and Longshoremen’s Benevolent Association of New Orleans from the time of its organization until April 14, 1890; that said association is a body corporate under the laws of the State of Louisiana; that said corporation has adopted a constitution and code of by-laws, under its charter, for .the government and control and notice of its members, a copy of which is annexed to and filed with the petition; that the franchise as a member is valuable, as shown in said copy, a member being entitled to money relief when sick, to be buried at death, and other benefits set forth therein; that by Article XVIII of the said Constitution, and Section 8, Article 6 of By-laws, no member can be expelled for any offense without having an opportunity of defending himself, which opportunity shall be written or printed notice from the recording secretary, that he must appear at a stated meeting, to answer the charge or charges brought against him, and he shall also be furnished a copy of the charges preferred; that, notwithstanding these provisions, and notwithstanding the fact that relator was not indebted to said association in any amount, and although no charge or charges of any kind had ever been made against him, of any violation of any law, rule, or regulation, of said corporation, and no ■notice of any kind ever served on him, said association illegally and without any warrant, either in law, or in their laws adopted for the notice of their members, expelled relator from his membership in said corporation; that by said illegal and unwarranted expulsion and deprivation of his rights of membership, relator had already been damaged in a sum more than $100, and that he will be damaged each and every day to the extent of $6 per day, his wages; that he is •excluded from his franchise because he can no longer obtain employment at his occupation as longshoreman, nor can he follow his •said occupation until he is restored to membership; that he is not only damaged, as aforesaid, by his expulsion, but his membership is worth at least $1000; that, though relator has been a member of :said corporation from its organization up to the time of his expulsion, no charge of any violation of its laws has ever been made •against him, nor has he ever been tried or found guilty of any violation of its laws; that the action of said corporation, at its meeting held April 14th, 1890, expelling said relator, is absolutely null and void, and can produce no favor and effect; that relator sought redress at the hands of said corporation, which refused him any relief, and his only adequate remedy is a mandamus.

Alternative writs issued and the corporation responded in substance: First, a general denial of all the allegations in the petition.. It then charges that relator was dropped from his membership for a. failure to pay a fine, inflicted for a violation of the general rules of the Association, and more especially of the conference rules of the labor associations, which form part of the laws and regulations of respondent Association; that relator was properly tried, and legally convicted and fined, and acquiesced therein, and failed to pay, and was-legally dropped; that when the conference rules were made, relator was a party to them, has acted thereunder, and is estopped to deny their validity; and that said conference rules are now legally part and parcel of the laws, rules and regulations of the respondent, association.

The matter was heard and the lower court refused the mandamus,, and plaintiff and relator appealed.

The defendant association is incorporated under the laws of the-State.

The Constitution and By-laws of the defendant corporation are-made a part of the record.

There is no rule or regulation in the Constitution and By-laws which prohibits the corporation from entering into an agreement for the purpose of carrying out the object for which the corporation was created. Therefore, any such agreement, made with the consent of its members, duly ascertained, will be legal and binding upon said members.

There is another labor organization in the city of New Orleans, called the Longshoremen’s Protective Union. In order to put an end to a “ strike,” the two associations entered into an agreement to regulate the conduct of their members working on the levee.

These regulations are called “ Conference Rules,” and were established and adopted by all the members of each association. In adopting these rules the two associations met in joint conference, each presided over by its president and its organization preserved.

It is alleged that the relator was not present when these rules were adopted, but he never protested against them, worked under them, and thus approved them, and is therefore bound by them.

Rule 11 of these rules'is as follows: “Any member who shall leave a ship at which he is working to go to another ship- to work, unless said work has been stopped for the space of five hoars, shall be fined the sum of ten dollars for each offense.”

Rule 8 of said rules is as follows: “All violations of these Conference Rules shall be tried by the conference committee, and all fines inflicted for violations of Conference Rules shall be collected by the violating member’s association, and one-half of his fine shall be paid over to the other association, through the conference committee, fifteen days from the date of conviction.”

This conference committee is composed of twenty-four members, twelve from each association.

The relator violated Rule 11, and was tried and convicted, and sentenced to pay the penalty.

He received no notice, in accordance with the' rules of the association to which he belonged, but he appeared voluntarily and submitted to the jurisdiction of this quasi tribunal. He, therefore, waived the notice.

Having neglected and refused to pay the penalty, he was dropped from the roll of membership, in accordance with the provisions of Section 2, Article 2, of the Constitution, which is as follows:

“Any member who does not pay up the full amount of his indebtedness to this Association on the second Monday in January, April,. July and October, shall be suspended from all pecuniary benefits for three months; and any member who neglects or refuses to pay up his arrears for six months, shall be considered as having renounced the-association and his name (shall be) stricken from the roll.”

The fine thus imposed became due the association of which relator-was a member.

It then fell under the rules of the association for collection.

It is urged by the relator that this regulation or agreement, between the two associations, was in conflict with and contrary to-Constitution and By-laws of the defendant association, that the-agreement did not become a part of the Constitution and By-laws of' the Longshoremen’s Benevolent Association, and that he can not be-deprived of his right of membership, as said agreement and conference rules are null and void. But, as we have said, there is; nothing in the Constitution and By-laws prohibiting such an agreement. Conceding, therefore, that they were enacted outside of any provision made by the Constitution and By-laws of the association, it is evident that the relator consented to them, and they became, at least, the "by-laws of a voluntary association, of which he was a member. He was instrumental in creating the quasi tribunal which inflicted the penalty and voluntarily submitted to its jurisdiction.

He has, therefore, no right to complain, unless it is shown that the agreement thus entered into by him was contrary to public policy, immoral, unjust and oppressive, or that the penalty was arbitrarily inflicted, contrary to the rules and regulations prescribed by the rules for its infliction.

It appears, however, that these “conference rules” were adopted separately by each labor organization at a separate meeting.

In adopting them, each organization expressly repealed all laws and regulations in conflict with them.

It was new matter. There was no rule or regulation changed, altered or amended, and these conference rules were in reality additional by-laws, made for the government of the members of each association.

The by-laws enacted by the association were binding, on all of its members. They are positive laws for their government so long as they are members. They are, in fact, a contract between all the members, and must be enforced, like other contracts, unless it appearsthey are in contravention of some law, contrary to public policy, or immoral.

The rules under which the relator was tried were observed. He had an opportunity of being heard, and the conference committee in inflicting the penalty, was not influenced by malice. The judgment was not against natural justice.

Judgment affirmed.