author: Eehher, J. Bermudez, C. J. Poché, J.

text:
    No. 9364.
    J. M. Seixas, Syndic, etc. vs. Mrs. R. Brugier.
    "Where an agent-, entrusted with .bonds "belonging to bis principal, used them without the-owner’s authority and substituted in their place other securities, and tho owner, when hearing of the transaction, ratified it, held that tho syndic of the agent who had become insolvent could not complain of the transaction or recover the substituted securities.
    A fair exchange of values may be made at any time without breach of any prohibition of the insolvent law's.
    The ratification, though made after failure and within three months preceding the surrender, rctroactcd in its effect so as to make tho transaction ^alid db initio; and, inas mucli as tho exchange would have been lawful if it had been made at tho date of the ratification, no rights of creditors had intervened authorizing them to object to its retroactive effect.
    Even independent of the effect of ratification, the rights of the holder to retain the substituted securities, would be maintained under the doctrine that when the agent, holding for safe keeping tho property of his principal, converts it into different property by exchange or otherwise, ihe latter, remaining capable of identification, will be subject to-the rights of the original owner.
    APPEAL from tlie Civil District Court for the Parish of Orleans. High tor, J.

      Bayne cO Denegre for Plaintiff and Appellee.

      Alfred Grima for Defendant and Appellant:
    1. .Antoine and Emile L. Camdre, having under their administration as agents of the defendant, Mrs. Brugior, various bonds belonging to her, used the same in the interest of the firm of A. Oamére & Sons, composed of themselves and another partner, and 'substituted therefor values represented "by several notes which are in the possession of Mrs. Brugior, and inferior in value to her said bonds. The firm of A. Oarridre & Sons, having made a cession of their property to their creditors subsequently to the said transactions, their syndic now sues Mrs. Brugier forthe return of the said notes to the said insolvents’ estate, as having been transferred by fraudulent preference to her.
    This is neither a case of pledge nor of preference of any kind, or of borrowing. It was a conversion to their use by agents, of property of their principal, without the latter’s-authority, and their substituting property as the investment of tbe property converted; the substituted notes are accepted by the principal, and their transfer to her was neither fraudulent nor injurious to tho rights of the creditors of A. Oarridre & Sons. 96 U. S. 337, Cook vs. Tullís.
    2. A. Garriere & Sons enjoyed tho highest credit and standing until the very day of their suspension, 10th J uno, 1884, up to which date neither Mrs. Brugier nor any one knew, suspected or bad any reason of suspecting their insolvency; and no transaction made in good faith with them could he attacked on the pretonco of a state of insolvency existing at the time when it could not be even surmised. The naked fact of the insolvency of a debtor at the time of entering into a contract with a third party, is not a cause for its revocation; knowledge of the said insolvency at the time must be brought home to the party contracting with the insolvent. R. C. 0., 1984 ; 4 Rob. 408 and 438; 24 Ann. *158 ? 34 Ann. 883; 125 Mass. 249; 74 111. 242; 97 U. S. 80.
    3. “ In order to constitute a fraud, two conditions are legally necessary: there must be the intention of defrauding, conseiliumfraudis, and the' event or the effective and actual loss sustained b.v the creditors, eventus dcm,ni\ if one of these requisites does not exist, there is no fraud.” 18 La. 388, Aloutilly ts. His Creditors; Lev. C. C. 1970, 1978, 1981, 1984, 198(¡; also 2 Lob. 92; 16 Ami. 402; 21 Ann, 668; 3L Aim 197; 35 Ami. 385; 2 Heraolombe (Contrate) §§ 175, 176, 185, 190, 193, 196, 203, 223; 4 Marcadó, p. 402; 16 Laurent, §§ 434, 435, 440 to 444, 446 to 449; 4 Bedarido (Fraudo), p. 34, § 1432.
    4. To constitute legal fraud in case of a preference given by an insolvent to one creditor over another, so as to eilect the preferred creditor, it must appear that the creditor, as well as the debtor, was notin good faith, that he knew of the insolvency of tlio debtor, and contemplated the securing to himself of an advantage over the other creditors. 3 Ann. 248, Gillespie vs. Cammack, 16 La. 370; 31 Aim 190; 61 Hew York, 626; 37 Illinois, 342; 63 Id. 486.
    .5. If a contract he onerous, and made in fraud on the part of the debtor, hut in good faith on the part of the person with whom he contracted, it cannot be annulled by creditors, unless the value of the property transferred exceed by one-fifth the consideration given for it; and if in such case the contract should he annulled, the consideration'given must be returned with interest. Iíev. C. C., 1981; 2 Lemolombe (Coritrats), p, 193, § 196; 4 Afarcadé (Art. 1167), p. 405, Sect. IV., parag, 499; 16 Laurent, i>age 509, §443.
    ■6. An exchange of valid securities, oven when the creditor and debtor knew of the latter’s insolvency, cannot be impeached by the other creditors as a fraudulent preference, no injury being thereby caused to them. 91 U. S. Hep. 114, Sawyer vs. Turpin; 18 "Wall 332, CookvR. Tullís.
    7. The using of the defendant’s bonds was made subject to a sine qua non condition and obligation, contracted as far bacic as January, 1884, that securities of like value were to he simultaneously substituted therefor. Even had the transfer attached been made, as contended by plaintiff, within three months preceding the failure, and cesto bmxorum- of A, Carrióro & Sons, it should he tested by the date of the agreement. Equity considers as dono that which ought to have been done, and that which was promised to he done. Wherefore the said transfer cannot bo viewed as a preference given within three months, as aforestated. Hev Stat. La. 1808; 2 Hew Series. 588 Wyer’s Syndic vs. Sweet and al. 17Fed. Hep., 705; 1 Story’s Eq. Jur., 60; 2 lb. 1212 and 1213.
    • 8. A. Carriére & Sons could not have sot up the want of timely compliance with their agreement to substitute value in place of the bonds taken; their syndic cannot plead tlio same against the defendant, who acted m good faith and gave just consideration for the notes held by her. 93 IT. S. Hop., 766. Yoafcman vs. Savings Institution; 2 Story’s Giro. Hep., Alitcholl vs. Winslows ; 18 Wall. 332, Cook vs. Tullís.

      Thos. J. Semmes on the same side.
   Tlio opinion of tlio Court was delivered "by

Eehher, J.

A. Carriére & Sons was a commercial firm of tills city, ■engaged in the banking and commission business, and composed of Antoine Carriére, Emile Carriére and Clias. J. Carriére.

This firm failed in June, 1884, and on the 18th of July, 1884, took the benefit of the insolvent laws of this State and made a cession of its property to its creditors $ and the plaintiff in this suit is duly appointed and qualified syndic.

' Antoine Carriére and Emile Carriére jointly and severally were the agents, general and special, of Mrs. Romain Brugier, the defendant -herein, under power of attorney, exceedingly broad in its terms, granting to “them and to each of them separately,” “full power and authority, in her name and helialf, to conduct, manage, transact and .administer all and singular her affairs, business, properties and con•cerns in this city and State, of whatsoever nature or kind, without •exception or reservation whatsoever.” The mandate proceeded to ■confer upon the agents a multitude of special powers, embracing those to collect all dues; to deposit and check out her funds; to sell all ■shares of stock in corporations; to vote in all meetings of stock-holders ; to lease property, collect rents and contract for repairs; to represent her in judicial proceedings; to transact and compromise, etc.

Amongst other special powers was that “to purchase real estate, mortgage notes, or any other securities or property, as the said constituents or either of them may think proper, for such price and on such terms and conditions as they shall think fit.”

No express power was granted, however, to sell, exchange or pledge1 •such securities when bought.

The affairs of Mrs. Brugier were important; the powers conferred were extensive; and in their execution, the agents seem to have been left entirely uncontrolled by any interference or supervision of Mrs. Brugier, who, from first to last, seems to have reposed unlimited confidence in her agents, and to have considered them as solvent as the Bank of,England.

In fact, however, the firm of Carriére & Sons was seriously embarrassed, though their credit retained the highest character in commercial circles down to the very day of the failure.

Besides being a cieditor for a very large amount, Mrs. Brugier had in the hands of her agents valuable securities, including $17,000 in city certificate bonds, $.14,500 in levee steam cotton-j>ress bonds, and $2000 in water-works bonds.

These securities seem oidinarilyto have been kept by her agents in a bank-box bearing her name, of which they had the key and full control.

In January, 1884, the firm of Carriére & Sons having urgent need of banking accommodations, which, in the then stringent monetary con•ditions, were more easily obtainable upon securities like those of Mrs. Brugier than upon the ordinary bills receivable in the firm’s portfolio, -a conference was held between the two agents, Antoine and Emile Carriére, at which it was determined that they would withdraw Mrs. Brugier’s securities and use them for the purposes of the firm, replacing them, however, at the same time by bills receivable of equivalent value belonging to the firm.

Accordingly, her securities, all negotiable and running to maturity, were withdrawn and pledged to about their value; while, at or near the same t;me, bills receivable of equivalent value were set aside to Mrs., Brugier. The latter were not placed in Mrs. Brugier’s bank-box,, but they were placed in an envelope, not bearing her name, but superscribed: “Pour remplacer: $17,000 City Certificate bonds; $14,500' Levee Steam Cotton Press bonds; $2,000 Water-works bonds.”

This envelope was not placed in the port-folio of the firm, but was kept in the private port-folio of Emile Carriere.

This first exchange of securities was followed by others. When the-bills receivable in the envelope would mature or other occasion for-their use by the firm would arise, Emile Carriere would withdraw and use them for the firm, replacing them, however, by others of equal value.

No entry of' these transactions was made upon the books until May 12, 1884, when, having made a fruitless effort to resume possession-of the misappropriated bonds, the following entries were made upon the cash-book of the firm: On the debit side: “Billets h recevoirpassós á Mine. Yve. R. Brugier,” describing them; on the credit side, the bonds described, “Achetós de Mine. Brugier.” On the same day, the envelope containing the bills referred to was placed in Mrs. Brugier’s bank-box, where they remained untouched until the 10th day of' Juno, when, for the first time, she was informed of what had been done, and the bank-box with the substituted securities were delivered to. and accepted by her in lieu of her alienated bonds.

These are the substantial facts as developed by the testimony of' Emile Carriere, supported by the production of the endorsed envelope,, the entry on the books of May 12, and the testimony of Mrs. Brugieras to the delivery to her.

His testimony, owing to the death of Antoine Carriere, is the sole evde nee touching the facts prior to May 12. Though assailed in argument as improbable and untrustworthy, the improbability is not apparent and its trustworthiness is not impeached by any evidence, direct or circumstantial. We must act upon it, or upon no evidence. M rs. Brugier is defendant in this suit and possesses these securities as. owner. We cannot be expected to divest her title and possession, unless they are conclusively overthrown by her adversary, who carries. e burden of proof.

The present action is brought by the syndic against Mrs. Brugier to. annul and avoid the transfer and to recover the securities or their-value. Tlie basis of the action is found in the allegations that the transfer was made on May 12,1884, within three months next preceding the failure, in order to give an unjust preference to Mrs. Brugier as a creditor and without any consideration delivered by her at the time— all claimed to be void under Section 1808 of the Revised Statutes.

The theory of the plaintiff is to isolate the conversion of Mrs. Brugier’s bonds from the concurrent replacement of them by other securities ; to treat said conversion as merely making Mrs. Brugier a creditor for their value; -and to have the transaction of May 12, 1884,, considered as a, prohibited transfer made, in tiempo inhábil, without present consideration, to a mere creditor for the purpose of giving an unjust preference.

We cannot accept this theory.

Its effect would be to suppress essential parts of an unique transaction and to extend the wrong done to Mrs. Brugier beyond the limitations imposed on it by the wrong-doers themselves. Fortunately for her, her agents did not commit the flagrant crime of embezzling and making way with her bonds without consideration. Their offense consisted in exchanging her bonds for other securities belonging to their firm. She might unquestionably have authorized her agents to make such an exchange even with their own firm, and, done under such authority, its validity would have been unquestionable. Executed without authority, the exchange was not binding on her. When informed of it, she might have repudiated it, and might have held her agents bound as debtors for the value of her converted bonds. But she possessed the undoubted right of ratifying the exchange and of thus imparting to it retroactive validity ah initio, unless prior to the-the ratification, right's of third persons had intervened, which the rati fication could not be permitted to defeat.

It is claimed that the ratification having taken place only after the failure and within three months preceding insolvency, the rights of the creditors of Carriére & Sons under our insolvent laws had intervened and operated as a bar to the ratification.

This claim may be disposed of in the language of the Supreme-Court of the United States in a case strikingly similar, arising under the bankrupt law. There an agent entrusted with the custody of bonds belonging to his principal, had, without authority, substituted for them bills receivable belonging to himself, and had used the bonds. Subsequently, he made a new substitution of a note and mortgage for the bills originally substituted. After his failure, and within less than a month of his bankruptcy, he informed the principal of his dealings, and delivered to him the note and mortgage, which the latter accepted. The assignee in bankruptcy brought against the principal an action precisely similar to this.

It is rare to find two cases running so exactly “on all fours.”

In discussing the effect of the ratification the court said: “The question in this case is, whether any rights of third parties did thus intervene between the substitution made by Homans and ratification by Tullis, which defeated the retroactive efficacy of the ratification. And the test is, could the, parties have made the transaction at the time of the ratification, without contravening the provisions of the Bankrupt Act 1 ” The court held they could ; that the dealing was an exchange of securities and not a transaction with a creditor, and, therefore, not subject to the prohibition against unjust preferences in favor of a creditor; that it was a fair exchange of values which could be made at any time prior to actual surrender in bankruptcy; that, if it had been made at the date of the ratification, it would have been obnoxious to no complaint; and, therefore, there was no obstacle to the retroactive effect of the ratification. The court concluded on this point by saying: “the position of counsel that the ratification, if sustained, only extended to the conversion of the bonds, and that all else ■consisted of dealings by Homans with his own property,” (precisely the •contention here) “is not tenable. The answer to it is that the ratification was of the whole transaction taken together; that of the appropriation of the bonds upon substituting an equivalent in value for them, not of a part without the rest, not of the appropriation without the substitution.”

But, independently of the question of ratification, the court held the transfer unassailable under the well-settled principle “that where property held upon any trust to keep, or use, or invest in a particular way, is misapplied by the trustee and converted into different property or is sold and the proceeds are thus invested, the property may be followed wherever it can be traced through its transformations, and will be subject, when found in its new form, to the rights of the original owner or cestui que trust.” And it held that the eonversion of the bonds was a conversion of them into the substituted securities which took their place and were subject to the claim of the ■original owner. Cook vs. Tullis, 18 Wall. 332.

The law is said to be a “science of distinctions; ” and it is the highest test of judicial acumen in the application of authorities to observe .and .enforce such distinctions.

We have exercised our whole powers of discrimination without being able to discover any substantial distinction between the case in band and that of Cook vs. Tullis.

On the other hand, the case of Casey vs. Cavaroc, 6 Otto, 467, relied ■on by plaintiff’s counsel, is obviously distinguishable. That was a ■case where the claimant of the securities was a simple creditor, as to whom the court said, “it must not be overlooked that the credit Mobilier has no other claim to the securities in question but that of pledge. A pledge and possession which is its essential ingredient, must be made out, or their privilege fails. * * Without the privilege or right of preference, the credit Mobilier has no claim to hold ■the securities in question as against the other creditors.” Holding that the pledge was invalid for want of the requisite transfer of pos.session, the court maintained the demand of the receiver.

Par from ovei ruling the case of Cook vs. Tullís, the court referred “to it with others, but said, “these were all cases in which the creditor claiming adversely to the assignee, had a. clear legal or equitable title to the property claimed. None of them stood, as the present case does, upon the claim of a privilege expressly denied by law.”

So, in the instant case, Mrs. Brugier sets up no right as pledgee or .as creditor, hut solely as owner.

There was never any claim or pretense of a pledge. The transaction was, in shape and in fact, an exchange of securities; one which, if the •agent had been authorized, would have operated an instant transfer of title; which, done without such authorization, was subject to the principal’s option of ratification; one which she did ratify; which would have been valid, if made at the date of ratification, and which, therefore, by the retroactive effect of the ratification, acquired validity ab initio, and must now he maintained.

We have not found it necessary to advert to the successive substitutions of new securities. The same feature was presented in Cook vs. Tullís. Evidently each stood upon the same basis with the ori.ginal substitution and is governed by the same considerations. Nor is the case affected by the fact that some of them were made within the three months preceding- the failure. Such exchanges, as we have seen, being of fair equivalents, fell within no prohibition of the insolvent laws. And it is admitted that the securities received by Mrs. Brugier were of less value than her bonds.

Such is the clear solution of the questions of law arising on the facts .as evolved from the testimony.of Emile Carriére. Bat, suppose we were to eliminate all the facts prior to the transaction of May 12, 1884, when, though disguised in the form a double sale, a real exchange was undoubtedly effected, At that date, Mrs. Brugier’s bonds stood pledged by her agents for their own debt without her authority.

That pledge, though subjecting them to the privilege of the pledgees, did not divest her ownership of the bonds. They were still her bonds. On that day, h.er agents made the final exchange of her bonds for the securities subsequently delivered to her. What prevented such an exchange? It was a fair exchange of values. If she had been a party to the transaction, would it not have been valid? Would the fact that her agents had unlawfully pledged her bonds for their own debt, have operated as an obstacle to such exchange? Would it not have been-their right and duty to liberate her bonds, by paying the debt for which they were pledged, or, if the pledgees would consent, by substituting in their place securities belonging to themselves ? Or, might they not have sold the securities and recovered her bonds by paying the pledged debt with the proceeds.

The answers to these questions seem sufficiently simple. And, if Mrs. Brugier chose to accept the securities directly in exchange for her bonds, we see nothing in the insolvent or any other law to prevent it. Her subsequent ratification, as we have seen, imparted to the transaction the same validity as if she had been originally a party to-it, and we see no ground on which her title can be successfully impeached.

The unlawful pledging of her bonds did not change her position-from that of owner to mere creditor. The relation of debtor and creditor would not have arisen until the agent had made default in the return of her property on demand. In this case it never arose,, because, on demand, she was notified of and ratified the exchange which had been made, and accepted the substituted securities. Under no view can the transaction be treated as a dealing with a creditor or giving an unjust preference as such.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now decreed that there be judgment for defendant, rejecting plaintiff’s demand at his cost in both courts.

Rehearing refused.

Bermudez, C. J. and Poché, J. dissent.

Dissenting Opinion.

Bermudez, C. J.

I think the evidence shows that an unjust preference was given to the defendant within the three months preceding the failure, and that the transaction should be declared to be a nullity, it being nothing but a dation en paiement by the insolvents to the defendant, to extinguish their indebtedness to her, arising from their •diversion of her securities and their liability for their value. The transaction is not shown to have taken place simultaneously, as is •claimed by the defendant. From the evidence, I think the insolvents first appropriated to themselves, without any understanding or agreement, the securities of the defendant and long after strove to replace them by other securities of their own.

The possession of these securities by the defendant might have militated strongly in her favor, had she not herself brought forward evidence which, however weak in itself, has nevertheless proved destructive of any presumption of rightful ownership in her.

The object of the law, as found in the R. S., is double-: first, to deprive the insolvent of the benefit of the insolvent laws, and second, to annul all acts of the debtor done within the three months preceding his insolvency, in consequence of which, a creditor for an antecedent debt is placed in abetter condition,injurious to the other creditors, to which, otherwise, he would not be entitled. The fact of the gratuitous and .injurious bettering of his condition to the detriment of other creditors is what the law frowns upon and proposes to undo.

In such cases the intention of the parties is immaterial. It is indifferent whether they or either proposed or designed to do a fraudulent act. The fraud need not be actual. It is sufficient if it be constructive, that is, if it exist in contemplation of law.

The ruling invoked in 18 Wall 337 was not made in a parallel case. The facts there were not what they are here, and the bankrupt law considered is not analogous to the provision herein invoked by plaintiff on behalf of the creditors of the insolvents.

It is difficult, not to say impossible, to discern what difference exists in principle between this case and that of Black vs. Richardson, recently decided, in which this Court distinctly held that the clear object of the law in such instances is to secure a perfect equality among the creditors of an insolvent whose property is the common pledge of all his creditors.

I think the judgment appealed from should be affirmed.

Poché, J.

I cannot concur in the conclusions reached by the majority bf the Court in this case.

The suit brought by the syndic is not the revocatory action for the purpose of cancelling an undue preference, as contended for by defendant’s counsel. It is simply tlie action provided for by Section 1808 of the Revised Statutes of 1870.

• The elements of proof necessary to plaintiff’s recovery are therefore,, that Mrs. Brugier was a creditor of the firm of- A. Carriére & Sons,, and that they transferred to her the securities in suit, for the purpose of securing her in preference over their other creditors within three-months next preceding their failure.

If it can be proved that the relations between Mrs. Brugier and the insolvent firm, resulting from their use of her-bonds, were those of creditor and debtor, the second point of inquiry is stripped of all the difficulty, because the transfer as shown by the books of the firm was-made on the 12th of May, 1884, and the firm’s insolvency was announced to the world on the 10th of June following.

The theory «that the transaction by which the Carriéres took possession of Mrs. Brugier’s bonds and pledged them to secure loans of money in January, 1884, was an exchange, is not supported by the p pondeiance of the evidence in the record.

It is true that, in his testimony in this case, E. L. Carriére, who was-the real head and manager of the firm, states that such was the nature of the transaction; and that on the day that he appropriated her bonds, he set apart for her in an envelope an equivalent amount of securities. But his statements are not borne out by undisputed facts evolved out of his own conduct, subsequent to the pretended exchangej and they are flatly contradicted by some of his own statements. He admits that whenever any of the paper which, under his theory had become the property of Mrs. Brugier by exchange, reached maturity, it was taken out of the envelops, collected, and that the proceeds were placed to-the credit of the firm, and not to that of Mrs. Brugier, who-was avowedly kept in perfect -ignorance of all these manipulations by her agents.

.A safer mode of testing the conduct of E. L. Carriére, and of ascertaining the true intent and meaning of the transactions which he conducted under his double-headed capacity of-principal in the firm of A. Carriére & Sons and of agent of Mrs.. Brugier, is to be found in the examination of his acts and words previous to the failure, than by considering his testimony in this case.

In the firsG place the absence of an entry in the books touching the alleged exchange of securities amounting to so large a sum, the absence of any entry to show the source of collections realized 'from notes which were ostensibly'her property, is moré eloquent than words to describe the real nature of the transaction. - - -

But the meaning of that silence is more than illustrated by Mr. Carriére himself by the answer which he gave on cross-examination to inquiries by counsel as to the reasons for making the entry of the pretended exchange on the l£tk of May, 1884, and not before.

He answered thus:

“ Because my father told me on that day that he wanted the thing to-be settled. We were always expecting to get back those bonds, but Mr. Hardie told me he did hot want to exchange the bonds. We waited to the expiration of the maturity of the loans. My father said, Enter a sufficient amount of notes to Mrs. Brugier’s credit in place of those bonds.’ ”

If the exchange had been consummated in January, why should the father insist in May following that the thing should be settled; and if Mrs. Brugier-was not a creditor, wThy give an order to enter notes sufficient in amount to her credit on account of those bonds'?

But the words spoken out of court by E. L. Carriére are yet more significant, and shed greater light on the whole subject.

In- a conversation with M. C. Randall, the expert appointed by the court to examine the books of the defunct partnership, he became very confiding and thoroughly communicative on the subject, and he spoke as follows: “ He made those entries for the purpose of doing what he considered an honorable act; that if he had not done it he would have thrown himself in the Mississippi river; that he had used the property of Mrs. Brugier which had been placed in, his hands as a trust and as a matter of honor he had made this entry.” And further:

“And he gave her those notes for the purpose of settling for those bonds. He stated that he owed her a great deal more. But this was a trust fund, and he had done this as a gentleman in order to secure her.”

And thus from the lips of the prime mover in the res gestee flow the very words which afford an absolute solution of the problem.

He had used the property of Mrs. Brugier, and he transferred the notes to her in OTder to secure her. Does this language sound like an exchange made simultaneously with appropriation of her bonds?

The true version of the case, which is actually demonstrated by the record, is that the Carriéres, being in a great stress for money, simply used the property of their principal in order to raise the funds necessary to bridge over some alarming difficulty, so as to obtain á short-breathing spell. They had no definite or settled programme for a future settlement with-Mrs. Brugier. It was the struggle of a “drowning horse catching at a straw.”

They knew that their concern was rotten to the core. The appearance of the firm’s standing to the outer world had to be kept up. Some eyes blinded with confidence in the house’s inexhaustible resources, were about to be opened, and they had to be closed. Like consumptive patients, the3r hoped against hope, and continued their battle against civil death. But time was about to tell the story in May, and the day of settlement with Mrs. Brugier in the near future loomed up to their vision like an ugly phantom. And then, and then only, losing all hope of ever regaining possession of her bonds, they perfected their “honorable” settlements with her.

They were her debtors; they secured her within the prohibited time; the law says that the deed is null, but the majority of the Court thinks otherwise as to the effect of the evidence.

I therefore respectfully dissent; and I think that the judgment of the district court should be affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9340.
    James Sweeney vs. Henry Otis.
    Wharfage dues are not taxes or duty of tonnage, or regulations of commerce, or obnoxious to the Constitution of the United States, but are lawful charges for conveniences furnished to commerce.
    ¡Neither are they a tax, toll, or impost, within the meaning of the State Constitution.
    The Supreme Court has no jurisdiction over a cause, in which such dues are claimed, for an amount below that fixed as the inferior limit of its jurisdiction.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      € has. 8. Bice for Plaintiff and Appellee.

      W. 8. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a judgment condemning him to pay to plaintiff $256.11 for landing and levee dues.

Among the defenses raised, the defendant has set up one which is designed to provoke a judgment on the merits, if we have jurisdiction >of the case and without which he could not be heard here.

He claims that the charges sued for are in effect a tax, or duty of tonnage, or a regulation of commerce, forbidden by and in conflict with the Constitution of the United States and, therefore, null and void.

Article 81 of the Constitution of this State, vests this Court with jurisdiction over cases in which the constitutionality or legality of any tax, toll, or impost whatever, imposed by a municipal corporation, shall be in contestation, whatever may be the amount thereof and •authorizes this Court to pass on both the law and the facts, in such cases.

The plaintiff claims to be entitled to the dues, as transferee of the rights of a lessee of the city of New Orleans who, under an adjudication and a contract, liad acquired the lease of the landings on the •river in the sixth and seventh districts, and collect such dues under a city ordinance.

The dues claimed cannot be considered in the light of a tax, duty of tonnage, or a regulation of commerce, or even as a tax, toll or impost, imposed by a municipal corporation, as claimed by the defendant. His viewing them as such, does not make them to be such. It is only if such charges or dues could be treated as a tax, duty of tonnage, or a regulation of commerce, or as such tax, toll or impost, as urged by •the defense, that this Court could have jurisdiction over the cause.

In the case of the Transportation Co. vs. Parkesburg, 107, U. S. S. C. 695, 698, the court said :

“When the Constitution declares that ‘no State shall, without the ■consent of.Congress, lay any duty of tonnage;’ and when Congress, in Sec. 4220 of the Revised Statutes, declares that ‘no vessel belonging to any citizen of the United States, ‘trading from one port of the United States to another part ‘of the United States * * shall be subject to any ‘tonnage, tax or duty, if such vessel be licensed, registered or ‘enrolled—they mean by the phrases ‘duty of tonnage’ ■and ‘tonnage, tax or duty,’ a charge, tax or duty on a vessel for the privilege of entering a port. * * It has nothing to do with wharfage, which is a charge against a vessel for using, or lying at a wharf or landing. The one is imposed by the government, the other by the owner of the wharf or landing.”

(Page 695.) “It is conceded by the bill that the wharf for the use •of which the charges are made, though public in the sense of being open to the use of the public, belongs to the city of Parkesburg; that it was built and is maintained by the city as its property; and the •ordinance on its face shows that the charges imposed for landing at or using it are imposed as and for wharfage and nothing else. It may be extoi tionate in amount, but it is wharfage. The allegations of the bill that it is not real wharfage, but a duty of tonnage, in the name and under the pretext of wharfage, cannot be received against the terms of ordinance itself.”

In the case of Police Jury of Plaquemines parish vs. Mitchell, No. 9259, decided here, in January last, this Court held : that the claim of“ a parish against a riparian owner for costs in making and repairing-the public levee'arid the public roads on the ovyner’s property, is not a tax, toll, or impost, within the purview of the Constitution and, as the amount of the claim was below the inferior limit of an appellate-jurisdiction, we dismissed the appeal.

In the present instance, relying on the ruling in 107, U. S. S. C. 695,. and on qtlier precedents which it is unnecessary to enumerate, we couclu.de that, as the claim is for wharfage dues, which are not taxes-of tonnage, or regulations-of commerce, or obnoxious either to the Federal or State Constitution; but are lawful charges, for conveniences furnished to commerce and as the amount claimed does not exceed $2000, this Court has no jurisdiction over it.

We will take occasion to observe that neither, at the institution of' this suit, in December, 1882, nor at the determination thereof in December, 1884, liad this Court any jurisdiction over it and that it cannot now consider it.

It is, therefore, ordered and decreed that the appeal herein be dismissed with costs.


author: Poché, J.

text:
    No. 9444.
    Lichtenstein Bros. & Co. vs. Gillett Brothers.
    In a proceeding where a non-resident creditor has attached in Louisiana property of a nonresident debtor fraudulently brought in this State, tlie rights thus acquired cannot be-defeated by a receiver appointed under a creditor’s bill, by a court of another State, by means of an intervention in which he claims the property as receiver for the purpose of bringing the same within ihe jurisdiction of the court wherein he holds his appointment.
    The general rule is that such a receiver is the mere creature of the court appointing him,, and his powers cannot he exercised beyond the confines of that State.
    !For the purpose of claiming the protection of our courts, no discrimination can he made-between residents or citizens of this State and citizens of another State. It suffices-that the seizing creditor whose rights are assailed by a foreign receiver, be not a resident or citizen of the State whence the latter derives his powers.
    APPEAL from the Civil District Court for the Parish of Orleans-Monroe, J.
    . T. J. Semmes & Bayne for Plaintiffs and Appellees.

      Gibson, Hall <&' Montgomery and J?.- Titehe for Defendants and Appellants.
   Tlie opinion of the Court was delivered by

Poché, J.

The record shows the following facts as bearing on this-controversy:

The defendants, who wore domiciled in Atlanta, Georgia, fraudulently shipped large amounts of goods to lids city and to other points,, for the purpose of defrauding their creditors.

Plaintiffs, who are residents of New York, and creditors of the defendants, issued attachments against such portions of the goods as were ■ discovered in this city. Other attachments were taken by other creditors, residents of other States.

Several parties, claiming ownership or privileges in and on the goods,, intervened in this suit, but final disposition having been made of their interventions, and none of the x>a-rties having appealed, their proceedings iorm no clement of the contestation which now concerns us.

The contest on this appeal is between plaintiffs and E. A. Augier, who has been appointed by the Circuit Court of Fulton county, State of Georgia, as receiver of the property of the firm of Gillett Brothers, under a proceeding known in common law as a creditor’s bill.

lie has intervened in this case with the object of being placed'.as receiver in possession of all the proceeds realized from the sale of the property attached herein, and he appeals from a judgment denying his demand and dismissing his intervention. The district court also rendered judgment in favor of plaintiffs in the sum of $1142 90, which was the amount of their claim, recognizing their privilege on the property attached.

All objections urged by appellant to the validity of the judgment, on-account of defects in the manner of proceeding against the defendants* and on other grounds, are met by the consideration that the amount of the claim being less than the lower limit of our jurisdiction, we are powerless to revise that judgment, which must therefore be treated as final—at least for the purposes of this discussion.

Our jurisdiction is restricted to the intervention, which involves an. amount in dispute exceeding seven thousand dollars.

The only question for solution is, therefore, the right of interverior,. under his appointment as receiver under a creditor’s bill by the Chancery Court of Fulton county, Georgia, to recover possession of the property óf the defendants, adversely to the rights acquired by plaintiffs-under their attachment of that property which was found in this State..

Plaintiffs’ attachment was effected on the 26th of April, 1883; the-intervention was filed on December 13, 1883.

The record is silent as to the precise date of intervenor’s appointment as receiver, but it appears that the appointment had been made when the goods were attached, and that they had been removed from ■Georgia several days before the institution of the proceedings resulting in the appointment of the receiver, and that some of the goods had been attached here as early as the 14th of April, 1883, by one of the creditors of the fraudulent firm, before the filing of the creditor’s bill.

It is conceded by appellant that he has never had possession of the property herein attached.

His contention is that the legal effect of his appointment as receiver by the Georgia court was to operate a transfer of all the property of ■Gillett Brothers, wherever found.

His proposition is controverted by plaintiffs, who urge the following •considerations:

1. That the insolvent laws of Georgia can have no extraterritorial -effect.

2. That a receiver appointed under a creditor’s bill derives no authority from the insolvent, but is merely the instrument of the court which appoints him and cannot execute its mandates beyond its territorial jurisdiction.

Touching the first point submitted by plaintiffs, the current of authority seems to bo that, under the comity regulating the intercourse of the States of this Union, a receiver appointed by a competent court of -one State will be allowed to'sue in another State and to recover prop■erty belonging, or debts due, to the insolvent corporation or firm which he represents. The rule is founded on the theory that the legal representative of the insolvent has the undisputed power to exercise all the rights which attached to the party whom he represents by assignment.

It must be noted that the rule as thus extended is a marked departure from the practice as understood in the earlier stages of American jurisprudence, when it was held that “ the powers of a receiver are coextensive only with the court making his appointment. They do not reach property, although movable, which is situated beyond the confines of the State.” Rorer on Interstate Law, p. 295; Higli on Receivers, p. 156; Wharton on Conflict of Laws, § 390; Booth vs. Clark, 17 Howard, 337; Life Association of America vs. Levy, 33 Ann. 1203.

But the courts which have recognized and enforced the modified rule, which rests exclusively, as stated, on the spirit of comity between the .States, have established a very material distinction deriving from the mature of the assignment, as voluntary or compulsory.

Under the effect of a voluntary assignment, if valid under the laws-of the State wherein it was made, the assignee or legal representative-of the owner of the property is vested with all the rights which attached-to the assignor; and hence it has been held that the assignee can exercise the rights of the former to sue in another State in order to enforce a claim or to recover property. Whereas the receiver under a statutory or compulsory transfer has been held to be vested with no powers but such as flow from his appointment, and that such powers cannot be exercised beyond the territorial jurisdiction of the court making the appointment.

That distinction was considered by the Supreme Court of the United’ States in the case of Booth vs. Clark, 17 Howard, 327, in an exhaustive- and learned opinion, from which we quote the following language as-entirely applicable to the case in hand:

Such being the rule in American courts, in respect to foreign assignments in bankruptcy, and in respect to such assignments as may be made.under the insolvent laws of the States of the United States, there-can be no good reason for giving to a receiver appointed in one of the States, under a creditor’s bill, - a larger comity in the courts of the United States, or in those of the States or Territories. On the contrary, strong reasons may be urged against it. A receiver is appointed under a creditor’s bill for one or more creditors, as the case may be, for their benefit, to the exclusion of all other creditors of the debtor, if there be any such, as there are in this case. * * * He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor’s property; none which can give-Mm, upon the principle of comity, a privilege to sue in a foreign court, or another jurisdiction, as the judgment creditor himself might have-done, where his debtor may be amenable to the tribunal which the creditor may seek,”

For the purposes of the decree which we propose to render in this, ease, we are not called upon to enforce against intervenor the rule which has been so clearly laid down by the highest tribunal of the land to its fullest extent.

We do not propose to deny to him, and we must not be understood as debarring him absolutely, of any right under his appointment to-claim and obtain possession of the property of G-illett Brothers, in case the exercise of such right does not militate with or destroy any existing rights acquired by. creditors under proceedings instituted in'our courts. In his brief, his counsel concedes that the claim which he now presses to. our favorable consideration could not be enforced to the detriment of previously acquired rights of our own citigens. But he contends that the protection cannot be extended to plaintiffs, for the reason that they are residents of the State of New York.

Wo have given a careful ¡consideration to the numerous authorities ■ which he invokes in support of that proposition. But they do not bear him out in his line of argument. Every case which he cites, and in which effect was given to an assignment made in another State when sought to be enforced in this State, adversely to seizures made by creditors of property found in the State, presented the question of a voluntary and not of a compulsory or statutory assignment, 8 R., United States vs. Bank of the United States; 1 Ann. 430, Richardson vs. Leavitt; 2 Ann. 660, Merchants’ Bank vs. Bank of United States; 4 Ann. 351, Whittenwright vs. Leavitt; 14 Ann. 554, Southern Bank vs. Wood & Chaplin.

Wherever the protecting aegis of our courts is invoked by a bona fide creditor seeking a just remedy on the property of his debtor found within the borders of the State, we see no good reason to justify a dis- ■ crimination between citizens or residents and non-residents of the State. The rights acquired under our laws through legal proceedings in our courts, by a non-resident, are and must be held as binding and .as sacred as would be the same rights enforced at the demand of one of our own citizens. These views have been entertained and enforced by very respectable authorities. Hoyt vs. Thompson, 5 N. Y. 320; Hunt vs. Jackson, 5 Blach. 349; Rhawn vs. Pearce, 110 Illinois.

In our opinion, it is sufficient that the creditor who has acquired rights by legal process in our courts be not a resident or a citizen of the State whose court has appointed a receiver who urges claims adverse to his acquired rights in our courts.

The plaintiffs in this case, residents of New York, are not more amenable to the jurisdiction of the Georgia courts than would be a citizen of Louisiana, and they are legally entitled to the full protection of ■ our courts against the claims of intervenor.

Such were the conclusions of our learned brother of the- District ■Court, and we find them correct.

Judgment affirmed.


author: Todd, J.

text:
    No. 9410.
    The State of Louisiana vs. Joseph Minau.
    ' Where, in a criminal case, the jury after retiring to deliberate on tbeir verdict, return into court and request the judge for certain information, not pertaining to the evidence adduced on tlie trial, and the counsel for the accused present, consents that tlie information may be given, and it is given, accompanied by a statement of tlie judge that it lias nothing to do with the ease,’which must he determined by the evidence heard on the trial j such irregularity, under these circumstances, is not sufficient to vitiate the verdict.
    ,An indictment under Act 8 of 1870, denouucmgthe offense of shooting at a house occupied hy persons lawfully therein, is not amen Able to the charge-of duplicity, because, of the averment that the shooting was with intent to murder a person named in the house.
    APPEAL from tlie Twenty-fifth District Court, Parish of Vermilion. DeBaillon, J.

      It. G. Smecles, District Attorney, and M. J. Gnnningham, Attorney •Genera], for the State, Appellee.

      J. A. Ohargois for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Todd, J.

The defendant was tried and convicted under an in formation charging:

“That one Joseph Minau, unlawfully, feloniously and of his malice aforethought, did shoot and strike with a dangerous weapon to-wit: ■a shot-gun, then and there loaded with divers leaden balls, in and upon the dwelling-house of one Adam Broussard, with intent in so ■doing to kill and murder one Lucie Catallan, the wife of said Broussard, he, the said Adam Broussard, his wife and his children, being then and there peaceably and lawfully in said dwelling-house.

He was sentenced to seven years imprisonment at hard labor and .appeals.

1. The defendant moved for a new trial substantially on the ground that, after the case was closed and the jury had retired to deliberate ■on their verdict, they returned into court for further instructions, which were given:

That these instructions consisted of additional evidence, which was imparted to them by the judge, and which had not been adduced on the trial.

We gather from the bill of exceptions, that the jury returned into court and asked the judge to inform them whether the accused had been in custody or out on bail since the charge was preferred against Mm. Tlie judge asked the counsel for the accused whether he had any objection to his giving the jury information, touching the matter inquired about, and upon being told by the counsel that there was no objection, gave the desired information, but, at the same time, stated to the jury that this was no concern of theirs, and. that the only evidence they1 could consider was that adduced on the trial. The judge states in the bill that if objection bad been made by tbe counsel, he would not have given the information to the jury.

We think, under this state of facts, the overruling of the motion gave no cause of complaint.

2. There was a motion in arrest, on the ground of duplicity in the information.

Tlie duplicity was alleged to consist in charging an offense provided by Act No. 8 of 1870 and an offeuse declared by Sec. 792, R. S., in one and the same count.

Tbe latter section referred to, reads: “Whoever shall assault another by wilfully shooting at him or with intent to commit murder,” etc.

It is very evident from an inspection of the information, which we have literally quoted above—that it contains no charge against tbe accused of an assault “by wilfully shooting at,” or of an assault-“•with intent to commit murder.” The real charge, it is obvious, is that declared by tbe act of 1870 against shooting at a bouse occupied by persons lawfully therein; and that tbe words with reference to tbe intent to murder the person named in the information, -whilst they are irregular, may be properly treated as surplusage as was held by tbe trial judge. Include them and they do-not make out another offense, eliminate them, and they have the information perfect with respect to the offense above named, provided by tbe Act of 1870, which alone purports to have been tried.

Judgment affirmed.


author: Manning, J. Poché J.

text:
    No. 9330.
    The State ex rel. John Thorn vs. The City of New Orleans.
    The power of taxation of a municipal corporation anti its extent at the date of a contract are incorporated in and become a part of the contract, and. continue to exist for its enforcement regardless of, and in opposition to, anysubsequent restriction or limitation of that power.
    Under the Act of 1870 it is the duty of the municipal authorities of New Orleans to provide for the payment of registered judgments in tlie only mode in which her judgment creditors are permitted to enforce their judgments, and this duty is not discretionary but imperative. If the oity fails or refuses to perform it she will be compelled to do it under a mandamus.
    APPEAL from the Civil District Court for the Parish of OrleansTissot, J.

      W. S. Benedict for the Relator and Appellee.

      Walter R. Rogers, City Attorney, and Wynne Rogers, Assistant City Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

A judgment ivas rendered in this court in favour of W. J. Behan against the City of New Orleans for seventy thousand five hundred and fifty dollars and fifty-six cents with interest. Behan v. New Orleans, Manning’s Unrep. Cas. 215. The relator Thorn as subrogee and owner of that judgment now seeks by mandamus to compel the City to provide for its payment. A statement of facts was agreed on setting forth as follows;—

First.—That the Relator is plaintiff in the judgment declared upon for the amount therein stated, which was duly affirmed by final decree of the Supreme Court of this State:

Second—That the said judgment was based upon a contract with the city of New Orleans, dated the 26th day of June, 1867, by act before W. J. Castell, notary, and for the balance due upon said contract, the judgment was so rendered against said city :

Third.—-That the said judgment was duly registered as required by act No. 5, of 1870, extra session, on the 5th day of June, 1878 :

Fourth.—That the said judgment has not been paid in whole or in part, and that no provision has been made to pay the same:

Fifth.—That under the annual appropriations as made by the city of • New Orleans, in its annual budgets for the purpose of complying with act No. 5, of 1870, extra session, a period exceeding twenty years must necessarily elapse before said judgment can be paid thereunder:

Sixth.—That the appropriation made by the city of New Orleans:—

For the year 1878, amounts to the sum of......................$20,000

For the year 1879, amounts to the sum of..................... 10,000

For the year 1880, amounts to the sum of..................... 20,000

For the year 1881, amounts to the sum of..................... 20,000

For the year 1882, amounts to the sum óf..................... 10,000

For the year 1888, amounts to the sum of..................... 5,000

Seventh.—That from and after the fifth day of June, 1878, there have been recorded in the office of the Comptroller of the city of New Orleans, judgments amounting to the sum of two million, three hundred- and twenty-five thousand, nine hundred and seventy-nine and eleven one hundredth dollars, still unpaid, exclusive of interest and costs, and the judgments due and unpaid prior to said date, amounting to the sum of one hundred and thirteen thousand, eight hundred and fifty-three and four one hundredth, dollars, exclusive of interests and costs,

The case was decided below in favour of the relator on the authority of Rousseau v. City, 35 Ann. 557, and since then we have decided the case of State ex rel. Marchand v. City not yet reported wherein the issues presented were identical with those now before us.

The contract now sought to be enforced was made in 1807. The judgment upon it was registered in June, 1878 as required by the Act of 1870. No portion of it has been paid nor has any provision for its payment been made, nor will there be any payment under the ordinary administration in twenty years, and the city refuses to provide for its payment in the mode pointed out by the Act of 1870 or in any other manner save by the ordinary taxation which is confessedly inadequate.

We held in the Marehand case that jurisprudence had settled that the power of taxation existing at the date of the contract was incorporated in it and continues to exist for its enforcement regardless of any subsequent restriction or limitation of that power, and that under the Act of 1870 it is the duty of the city authorities to provide for the payment of registered judgments in the only mode in which her judgment-creditors are permitted to collect them, and that this duty is not discretionary but imperative. The reasoning „froin which these principles were evolved was elaborately set out in that opinion, and the antecedent decisions that had severally established each principle were grouped so as to form a consistent and harmonious system. ■

The extent of the power -of taxation at the time of the Marehand contract (1872) was twelve and a half mills, and we therefore decreed that taxation to that extent must be imposed if it was needed to pay his judgment but need not be if the judgment could be paid with less. The extent of the power of taxation at the time of the relator’s contract (1867) was fifteen mills, Sess. Acts 1856, p. 68, and we shall therefore restrict the taxation to that limit. The lower court did not restrict it at all and in that respect is error.

It is therefore ordered and decreed that the judgment of the lower court is amended by limiting the taxation ordered to fifteen mills on every hundred dollars of assessed valuation, and as thus amended it is affirmed, the relator paying the costs of appeal.

Poché J.

Yielding to the force of the rule stare decisis, I concur m this decision.


author: Tenner, J.

text:
    No. 9353.
    E. P. Bonnecaze vs. Mrs. Adele Beer.
    WlieD, during the pendency of a lease, it is discovered that repairs are osseutial to secure the safoty of the building, and -which, are urgent and not safely to be postponed, the lessor has the right, as it is his duty, to make them; and the rights of the parties are governed by A.rt. 2700, C. C. The lessee must submit to the inconveniences resulting • therefrom, having the right to claim a diminution of rent, in case they last more than one month, or a total remission if he is compelled to abandon the premises,
    He is not entitled to damages for unavoidable injury to bis business or for annoyance and vexation. Injury to the lessee’s stock and fixtures stands on a different footing, if occurring without fault of the lessee.
    A PPEAL from the Civil District Court for the Parish of Orleans. J_JR. Houston, J.

      Ohas. S. Bice for Plaintiff and Appellant.

      Brauglm, Bucle & Hinlcelspiel for Defendant and Appellee.
   The opinion of the Court was delivered by

Tenner, J.

Plaintiff was the lessee from defendant of the ground floor of the building at the corner of Canal and Baronne streets for a term beginning on December 1,1882 and ending on September 30, 1885.

In October, 1883, the lessee of the upper portion of said building, discovered and reported to the lessor that the middle wall of the building (which was a double four-story brick) was sinking.

This led to an examination by experts, including the City Surveyor, who decided that the building was unsafe. Long prior to the date of plaintiff’s lease, the middle wall referred to had been partially cut away on the ground floor and it was supported on arches. The experts decided that, to make it safe, it was essential either to build props or supports under the arches or to lighten the weight of the superincumbent wall. The latter course was decided upon. In making the examinations, it was found necessary to enter on plaintiff’s part of the premises to inspect the arches and for that purpose, to cut away the ornamental paper which he had placed there. This examination and the work found necessary to be done to the arches, lasted about two days and a half, and constituted the only actual entry upon plaintiff’s premises.

But it was followed by other necessary work upon the upper portion of the wall and, it being at the same time discovered that the galleries on the upper floor required re-flooring, and that their supports were of insufficient strength, this work was also done and girders were let into the wall for its support,

The whole repairs lasted less than one month viz : from October 22, to November 21.

They undoubtedly occasioned plaintiff, who kept a confectionery, restaurant and bar-room, inconvenience and damage, creating noise and dust, and obstructing, to some extent, the sidewalks in front of his place and the entrances thereto.

But the evidence satisfies us that care and prudence were exeicised, to cause him as little injury and inconvenience as the nature of the work permitted and for as short a time as possible.

We are satisfied that the rights of the parties are governed by the provisions of Article 2700 C. C.

The lessor is bound to make all repairs which unforeseen events or decay may render .necessary. C. C. 2693, 2717.

He is, at the same time, bound to secure to the tenant the free and peaceable enjoyment'of the thing leased. C. C. 2692.

Now, since the repairs may and generally must, to a greater or less extent, interfere with the lessee’s enjoyment, it is obvious that a com flict of duties arises.

The very object of Article 2700 is to reconcile and regulate the rights of the parties under such conflict.

Hence it provides, substantially, that if the repairs are not urgent, the lessee may require them to be postponed until the end of his lease; but, if they are urgent and cannot safely be postponed, the lessor has the. absolute right to make them, and the lessee must submit to whatever inconvenience they may cause him, subject only to his right to claim a diminution of rent in case the repairs last for a longer period than one month, and to an absolute remission of rent in case they have been of a nature to compel him to leave the house.

These rules may not be ideally just, but some sacrifices of self-interest are due to good neighborhood; and, in any event, they are prescribed by law.

Now, in the instant case, the repairs were necessary, urgent and incapable of postponement; they did not oblige the tenant to leave the house, but only impaired his enjoyment; they did not continue for a longer period than one month. No diminution or remission of rent is claimed in this suit, and the record does not inform us whether any was allowed' or not. The damages claimed are, in the greatest'part, for injury tó business, loss of patronage and inconvenience, vexation and annoyance. Such damages are clearly not recoverable under the article of the Code.' Redon vs. Caffin, 11 Ann.

So‘far as the items for damages to stock, fixtures and furpituré are concerned, they might stand on a different basis; but we consider that the evidence does not satisfactorily establish any except that occasioned by the cutting of plaintiff’s papering, which the defendant was always ready to remedy and which the judgment fully recognizes. The form of the judgment is objectionable; but no effort was made to correct it in the lower court, a merely formal motion for new trial without specifying grounds having been alone filed; and as we think it will afford plaintiff the relief to which he is entitled, we will not amend it.

On the question of costs, the gross injustice of throwing on defendant the onerous costs of a litigation, the only result of which is to condemn her to perform that winch, prior to the suit and in her answer, she expressly offered to do, is too apparent to justify us in disturbing the judgment.

Judgment affirmed.

Rehearing refused.


text:
    No. 9358.
    Leonide Lacroix vs. Manuel Escobal.
    The petition of a citizen of the republic of France, asserting the bight of ownership to a trade mark, discloses no canse of action in the absence of specific ayerment tbat copy of tbe mark was deposited, as required by the second article of the convention between the United States and France, proclaimed ’on April 16, 1869, in the Patent office at Washington.
    A PPEAL from the Civil District Court for the Parish of Orleans. /~\ Monroe, J.

      Farrar & Krwttsehnitt for Plaintiff and Appellant:
    1. In trade mark cases the question is not whether the complainant was the original inventor, nor whether the article made and sold under his trade mark by the defendant is equal to his own in quality or value. But the Court proceeds on the ground that plaintiff has a valuable interest in the good-will of his trade or business; and having appropriated to himself a particular label, sign or trade mark, indicating to his customers that the article is sold by him or his authority, he is entitled to protection against one who attempts to pirate upon the good-will of his friends or customers, or the patrons of his trade or business, by using such label, sigu or trade mark without his consent or authority. . Partridge vs. Mencke, Cox’s American Trade Mark Cases, 72; Upton on T. M., p. 97, and cases cited under II and HI.
    2. The property in trade marks has been repeatedly recognized in Louisiana, and also the property in good-will generally, yet we find no special statutory or codal enactment for either. Wolf vs. Barnett, 24 Ann. 97; Funke vs.^Dreyfus, 34 Ann. 80 ; Ins. Oil Tank Co. vs. Scott, 33 Ann, 946; Berg.)mini vs. Bastian, 35 Ann. 60; Wintz vs. Vogt, 3 Ann. 16 ; Verges vs Forshee, 9 J. un. 294; Succession of Tournó, 21 Ann. 391.

      3. Tliis property has very little analogy to that which exists in copyrights or patents. The essence of the wrong consiscs in the false representations. The doctrine of the protection of trade marks does not depend entirely upon invasion of individual rights, but upon the broad principle of protecting the public from deceit. MatselL vs. Planagan, Cox s Am. T. M. Cases, 367; Taylor vs. Carpenter, Cox’s Am. T. M. Cases, 45; Taylor vs. Carpenter, Cox’s Am. T. M. Cases, 37 and 38; Trade Mark Cases, 100 TT. S. 82.
    4. Alien friends are entitled to claim the same protection of this good-will as citizens, even though they reside and carry on their business in another country, and have no establishment here, and do not even sell or usually sell the goods on which such trade mark is affixed in this country. Joyce on Injunctions, p. 3; Collins Co. vs. Brown, Cox's Manual of T. M. Cases, Case No. 151; Collin’s Co. vs. Cohen, Cox’s Manual of T. M. Cases, Case No. 152; Collins Co. vs. Beeves, Cox’s Manual of T. M. Cases, Case No. 164; Taylor vs. Carpenter, Cox’s Am. T. M. Cases, 14 (Story J.); Taylor vs, Carpenter, Cox’s Am. T. M. Cases, 32, (Woodbury J.); Taylor vs. Carpenter, Cox’s Am. T. M. Caseb, 45, N. Y. Ct. of Appeals.); Coat vs* Holbrook, Cox’s Am. T. M. Cases, 20; Coffeen vs. Brunton, Cox’s Am, T. M. Cases, 82; Deringer vs. Plate, Cox’s Am. T. M. Cases, 324; Lemoine vs. Ganton, Cox’s Manual of T. M. Cases, Case No. 125.
    5. Nor does the fact that no reciprocity exists in the foreign country affect this case. Taylor vs Carpenter, Am. T. M. Casos, 37.
    6. The protection extended by the treaty referred to by defendant was intended to confer an additional and cumulative statutory benefit on aliens not before possessed, nob to strip them of any old rights. Such has been the construction uniformly placed on statutes protecting trade marks, and a treaty is but a statute. Taylor vs. Carpenter, Cox’s Am. T. M. Cases, 37; Deringer vs. Plate, Cox’s Am. T. M. Cases, 328.
    7. But if the treaty had any other object in view than the one admitted by us. it would be open to the same constitutional objections as the Act of Congress pronounced void in 100 tT. S. 82. That a treaty violating the constitution is void; that a treaty possesses no greater validity than any other law; that it is abrogated by a subsequent conflicting statute; that it abrogates prior conflicting statutes, are no longer open questions. The Cherokee Tobacco, 11 Wall, 616; Poster vs. Wilson, 2 Peters, 314; “Dred Scott” case, 19 How. 629; Cooley’s Principles of Constitutional1 Law, p. 33.

      F. T. Florance for Defendant and Appellee:
    VAGUENESS.
    1.A petition claiming a right based on prior user, must allege specifically the date at which such user began.
    NO CAUSE OP ACTION.
    2. This Court takes judicial cognizance of the historical fact that the civil law as a system, and not the common law, prevails in Prance. 2 Ann. 335; 4 Ann. 129; 4 Ann. 254 ; 1 La. Bep. 540; 1 Wharton on Evidence, §§ 315,296, 329; 91 U. S. {1 Otto 37.)
    3. Under the civillaw prevailing in Prance, “user” alonéis insufficient to vest title to a trademark—special statutory permission is pre-requisite. Laurent, Droit Civil Inier_ national, Vol. 3, § 356.
    4. Having no trade mark in Prance, a Prench citizen cannot (without acquiring it regularly in a foreign country) prevent a concurrent use in a foreign country.
    5. A Prench citizen, even if owner of a trade mark in Prance, must comply with conditions of Treaty of Beciprocity of 1869, between United States and Prance on the subject of trade marks.
    6. A treaty must be construed bo as to give effect to its provisions • Sedgwick on Statutory Construction, notep. 226 ; 6 Wheaton, U. S., S. C. atp. 72.

      7. A treaty is not unconstitutional merely because control over tbe subject matter thereof is not specially delegated to Congress. 3 Dallas, 237; 14 Peters, 388, 412, 415-16; 18 Howard, 349, 357; 2 Elliotts5 Debates, 368, et seq.; Federalist letter, 64. At the utmost (and even then quaere) when it actually violates an oxpress constitutional «prohibition. V. also Constitution of United States, Ait. VI., 16 Howard, 657-8; Art. 1 Sec. 8, Amendment X. The treaty making power has often been maintained where legislation would be ultra vires of Congress. 10 Ann. 391; 12 Ann. 577; 13 Ann. 113.
    8. This treaty is valid as a “Regulation of Commerce.55 100 XT. S. 99; 15 Peters, 505-9, 13; 3 "Wall. 417; 11 ‘Wall. 616.
    9. Louisiana does not permit the monopoly of “common things55 by user —particularly non-local and non-exclusive. C. C., 450.
    10. Plaintiff not being owner of trade mark, nor entitled to protection under the treaty, has no interest to prosecute, and discloses, therefore, no cause of action. C. P. 1,15; 30 Ann. 810; 28 Ann. 412.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff appeals from a judgment which dismisses his petition, on the grounds of vagueness and no cause of action.

Plaintiff alleges that lie has, for many years past, manufactured cigarette papers; that he has adopted a trade mark for said papers, of which he gives a full description in his petition; that the papers are put up in the form of small books, using the trade mark on the covers of the books, in manner and form shown in said books, of which one is filed with the petition and is annexed to the transcript in this Court; that he invented the trade mark, and was the first person to use it. The customary allegations in trade mark suits fcdlow, including the allegation that defendant is engaged in the sale of cigarette papers in books resembling those used by petitioner, and so colored, stamped and labelled as to resemble the books and envelopes used by plaintiff. The prayer is for an injunction (which, however, was not insisted upon and not issued) and for damages and an account of profits made by defendant’s violation of plaintiff’s trade mark.

In support of his exceptions, the defendant charges that the plaintiff does not aver that ho has used the alleged trade mark in the United States; that he is entitled to the exclusive use of it; that the averment that he is the first person to use, is insufficient as a basis of title; that the plaintiff is not the owner of the. trade mark; that he has not averred compliance by him with essential prerequisites, exacted by the law of France and the convention between that country and the United States, as conditions precedent, to preclude the use of it even as charged, in this State and country.

We do not propose to state, consider and pass upon the numerous and interesting propositions of law in which the able counsel have engaged, as no practical good would be accomplished in doing so.

We will even abstain from determining whether we should or not take judicial notice of what the law of Prance, on the subject, provides—the more so, as counsel who would seek an expression of opinion, has not volunteered to whisper its behest and has remained content with a quotation from a learned commentator on the Napoleon Code.

The merits of the contention in the present controversy as exhibited by the pleadings (the petition and the exceptions) can well be determined on superior and more substantial grounds.

The following is the text of the convention between the United States of America and Prance, concerning trade marks, proclaimed April 16, 1869.

Article 1. “Every reproduction in one of the two countries of trade marks, affixed in the other to certain merchandise to prove its origin and quality, is forbidden, and shall give ground for an action for damages in favor of the injured party, to be prosecuted in the courts of the country in which the counterfeit shall be proven, just as if the plaintiff were a subject or citizen of that country.

“The exclusive right to use a trade mark, for the benefit of citizens of the United States in Prance, or of French subjects in the territory of the United States, cannot exist for a longer period than that fixed by the law of the country for its own citizens.

“If the trade mark has become public property in the country of its origin, it shall be equally free to all in the other country.

Art. 2. “If the owners of trade marks, residing in either of the two countries, wish to secure their rights in the other country, they must deposit copies of these marks in the Patent Office at Washington, and in the Clerk’s Office of the Tribunal of Commerce of the Seine, at Paris.” See treaty; Appendix to Brown on Trade Marks, p. 558.

It is apparent, that if this convention be law, the plaintiff, who is a citizen of the Republic of France, should have deposited a copy of the trade mark in question as indicated in the last article, if he wished to secure his right to it in this country, and, having done so, he should have averred accordingly that material fact, in his petition, which he has not done.

Counsel for plaintiff, when thus confronted with the treaty, returns that, if it has any other object in view, than a mere regulation of commerce, it would be open to the same objections successfully raised to the legislation of Congress of July 8, 1870, and August 14, 1876, which was pronounced void in the Steffers’ case. (Y. Trade Mark Cases, 100 U. S. 82-99.)

A reference to the decision in that memorable case, shows that the court substantially held: that if an act of Congress can, in any case, be extended to trade marks, as a regulation of commerce, it must be limited to their use in “commerce with foreign nations, and among the several States and with the Indian tribes;” that the legislation is not in its terms or essential character, a regulation thus limited; but in its language it embraces and was intended to embrace all commerce including that between citizens of the same State; that the legislation-is void for want of constitutional authority, in as much as it is so framed, that its provisions are applicable to all commerce, and cannot be confined to that which is subject to the control of Congress.

The convention is not an act of Congress. It is a contract or pact between the United States and France, for the security of the rights of their respective citizens on the matters agreed upon. It is a treaty made under authority of the United States, that is by the President and the Senate. 16 How. 657-8.

Courts have no doubt the right and, therefore, the power to declare in proper cases that acts of Congress are null and void, as not having been made in furtherance of the Constitution; but, they have several times questioned their authority to pronounce a treaty unconstitutional and surely would not attempt to do so, unless the treaty violated the organic law of the general government. 3 Dali. 237; 14 Pet. 338, 412; -415-6, 18 How. 349, 357 ; 3d Elliots’ Deb. on Const. 368, et seq.; Federalist, 614.

It cannot be questioned that in a treaty entered into between two nations, the subjects or citizens of each nation are represented therein by the organ of each country, and that what is there stipulated as rights and obligations of such subjects or citizens respectively is binding on the two governments and on such subjects or citizens.

Treaties have been given force and effect, when legislation would have proved unavailing.

Before concluding his opinion in the trade mark cases, Mr. Justice Miller, who was the organ of the court, used the following language, having no doubt in his mind, the convention above recited, which had already been proclaimed, when the legislation of Congress was adopted, which was subsequently by the judgment in said case, pronounced unconstitutional. He wrote:

“In what we have said, we wish to be understood as leaving untouched the whole power of the treaty making power over trade marks and of the duty of Congress to pass any law necessary to carry the same into effect.” (100 U. S. p. 99, § 1).

In the controversy now pending in this Court and now under consideration, we fail to see in what respect the convention in question violates the Constitution, and do not hesitate to say that even had we any doubt on the subject, we would not undertake to exercise such transcendent authority in the present case.

Judgment affirmed.


author: Poems, J.

text:
    No. 9283.
    M. Abascal et al. vs. P. L. Bouny et al.
    l'he fifth municipal district of New Orleans, known as Algiers, being included in the levee system specially created for New Orleans by law, could not be legally included in the third levee district of the State.
    Hence said district is not liable to the special levee tax levied under the'authority of said third levee district.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      A. J. Lewis and B. B: Forman for Plaintiffs and Appellants.

      John MeFhiery and W. B. Bommerville for Defendants and Appellees.
   The opinion of the Court was delivered by

Poems, J.

Plaintiffs and intervenors, residents and tax-payors of the fifth municipal district of New Orleans, commonly known as Algiers, resist the collection of a tax of five mills levied on their property for each of the years 1880, 1881, 1882 and 1883, by the third levee district of the State, on the ground mainly that said district being a portion of the city of New Orleans, the property therein situated is not liable to taxation for levee purposes by any other authority but the council of said city.

Under the provisions of Act No. 7 of 1870, the suburban town of Algiers was incorporated into the city of New Orleans and became the fifth municipal district of said city.

By paragraph 2 of Section 12 of said act, the city council of New Orleans was specially empowered * * * to regulate the proportion and to make and repair all common sewers, drains, canals, public roads, levees, dykes, causeways and bridges, notwithstanding any superintendence which might be set up by any corporation or individual over such works.” * *

Under the effect of this legislation, the territory comprising Algiers became a part of the levee system to be established and controlled by the city of New Orleans, and all authority previously lodged in any other corporation or system over the levees of that territory was recalled and effectually abolished. Now under the provisions of Act No. 33 of 1879, the right bank of the parish of Orleans* including the fifth municipal district of New Orleans, was incorporated into the third levee district; and that act is the authority invoked for the levy and collection of the special tax herein resisted.

While it is true that Act 33 of 1879 contains the usual repealing clause, it cannot be claimed, and it is not even pretended, that it could, or purported to, repeal that portion of the Act of 1870, which incorporated Algiers into the city of New Orleans. No such intention was included in its title as one of the objects of the act.

It therefore appears from the record that after the Act of 1879 the city of Algiers continued, in fact, as it remained legally, a portion of the city of New Orleans, and was thus subject to the levee system created and controlled by said city, and liable to the payment of all taxes levied by and under the authority of said city.

Hence it results that under the practical operation of the Act of 1879, the fifth municipal district of New Orleans, which pays the State tax of six mills and the municipal tax of New Orleans of twenty mills, is required, in addition, to pay a special levee tax of five mills, enacted by the third levee district, making an aggregate of thirty-one mills, while all other portions of the city of New Orleans are only taxed twenty six mills.

Again, as a part of the levee district, that municipal district is subject to a tax amounting, as stated, to thirty-one mills, while all other portions of the same district cannot be taxed an excess of twenty-one mills, composed of the State tax of six mills, the parish tax of ten mills, and the special levee tax of five mills.

It therefore follows that, viewed either as a part of the city of New Orleans or as a component part of the third levee district, the fifth municipal district is subject to a tax in excess of that levied against all other portions of the territory of which it forms a part.

Hence, it is safe to conclude that the tax thus levied and sought to be enforced is not uniform, and that it is amenable to objection under tlie provisions of Art. 118 of tlie Constitution of 1868, and of Art. 203 of tlie present Constitution, treating of the uniformity of taxation.

That reasoning- applies to the tax of the years 1880, 1881 and 1882.

The tax claimed for the year 1883 is in addition stricken with nullity by the provisions of Act No. 20 of 1882, which is the present charter of the city of New Orleans. Section 7 of that act clothes the council cf that city with full power to maintain levees, dykes', and to protect the city from overflow. Section 24 provides that tlie commissioner of public works shall have general charge and superintendence of all matters relating to levees.

Now, under that act, the city of Algiers is still retained as the fifth municipal district of New Orleans; and it therefore follows that the control over levees therein conferred on the city of New Orleans excludes the power to exercise control over the same subject from any and all other corporation or State functionary. Hence, itis undeniable that, under tlie effect of the repealing clause (Section 78) of the Act of 1882, all provisions in the Act of 1879 which subject the city of Algiers, as a part of the right bank of the parish of Orleans, to the control of the third levee district, are in terms repealed by the latter legislation. And under its effect disappears the power of said levee district to legally levy a tax on property situated within the fifth municipal district of New Orleans.

Prom these considerations it seems impossible to reach any other conclusion but that plaintiffs and intervenors are clearly entitled to the relief which they claim, and that there is error in the judgment which denied it to them.

The judgment appealed from is therefore annulled, avoided and reversed. It is now ordered that there be judgment in favor of plaintiffs and iptervenors perpetuating the injunction granted in limine, decreeing the special levee tax claimed of them under authority of the third levee district illegal, null and void, ordering the' cancellation of the mortgage resulting from the inscription of said taxes for the years 1880, 1881, 1882 and 1883, and allowing them their costs in both courts.

Mr. Justice Todd concurs in that part of tlie decree which annuls the tax claimed for the year 1883, aud dissents in all other particulars,

Mr. Justice Peuner dissents entirely from the opinion and decree.


author: Manning, J.

text:
    No. 9318.
    Columbia Steam Fire Company No. 5 vs. Firemen’s Charitable Association.
    Although an appellee and plaintiff is estopped from deDyingJbis jurisdictional allegation of damages sustained and bis motion to dismiss will be refused, yet if upon an examination of tlio case on its merits it appears that tbe damages claimed are wholly unreal and fictitious, and all parties have treated the case as not involving any moneyed demand whatever, and thus want of jurisdiction is disclosed, the court will dismiss the appeal of its own motion.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Jos. P. Hornor and F. W. Baker for Plaintiff and Appellee.

      Wytme Bogers for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The statement of the pleadings and of the issue presented thereby is so fairly made in the plaintiff’s brief that we adopt it.

“Tbe plaintiff alleges that on 6th March, 1865, it, with the other fire companies of the city of New Orleans, formed the defendant corporation, on certain terms and conditions as laid down in the charter, constitution and by-laws of tbe defendant, tbe Firemen’s Charitable Association of New Orleans; that by tbe terms of that charter it was provided that tbe individual persons comprising tbe plaintiff corporation^ Columbia Steam Fire Company No. 5, should be members of the Five-men’s Charitable Association, provided, that with the exception of those who were members at the date of incorporation of defendant, plaintiff should not be entitled to have more than forty of its active members enrolled as members of defendant association; that no person could be a member of the association without being a member of one of the companies comprising tbe association, and that when any member of the association ceased to be a member of his company, he ceased ipso facto to be a member of tbe association; that each of the companies were tbe sole judges of whom they should Admit to membership, and alone had power to discipline and expel their members, independently of tbe association, except in cases where such members should be accused of a violation of any of tbe provisions of the charter, constitution or by-laws of the defendant association, in which case the association and the company would both have jurisdiction.

“Plaintiff further alleges that, by the 7th article of its by-laws, any member could be impeached, admonished, fined or expelled upon charges.“of conduct, calculated to bring disgrace, contempt or derision on this company as a body,” after due trial and conviction in said company. That at a regular meeting of the plaintiff company, held on 4th February, 1884, such charges were preferred against one W. H. Dougherty, then a member of the company, which were duly entertained by the plaintiff company and a copy of the same with specifications were served upon said Dougherty, together with a notice to appear, etc.; that on 3d March, 1884, said Dougherty- did appear and pleaded not guilty, and was regularly tried and found guilty and expelled from his membership in the plaintiff company- and, as a consequence thereof, from his membership in tho defendant association, which was duly notified thereof, and said Dougherty ceased to be a member of the plaintiff company and of the defendant association.

“Plaintiff further alleges that subsequently, at a meeting of the board of delegates of the defendant association (the governing body-) the said Dougherty presented a complaint against the action taken against him by plaintiff, which was received and acted upon by said board against the protest of the delegates representing the plaintiff herein; and on the 29th April. 1884, a resolution was adopted by said defendant association reinstating said Dougherty- as a member of said association and placing him on plaintiff’s roll without any formal articles of impeachment having been made against plaintiff, and without any form of trial and without hearing any' evidence, all of which was idtra vires, illegal, null and void, and contrary to the provisions of the charter, constitution and by-laws of the defendant association, said defendant association having no jurisdiction whatever over the. matter. That said illegal act of said association in trying to force upon the plaintiff company a member found guilty of violating its laws, and depriving the company of the right to have a better man member of the company upon the rolls of the defendant association as a member thereof from the plaintiff company has caused great damage, etc., and plaintiff pray for an injunction restraining the defendant from continuing to carry-said Doughert.y as a member upon its rolls, especially as a member of the plaintiff company.

“The answer virtually admits all the allegations of fact contained in the plaintiff’s petition, and denies all the conclusions of law therein set forth ; it especially admits the action of the defendant association relative to Dougherty complained of by' the plaintiff, and avers that he became a member of the defendant association on 7th January, 1878, and on 7th January, 1884, upon the certificate of plaintiff’s secretary that ho had served six years as an active fireman, he was placed, in accordance with defendant’s constitution, upon the exempt roll of the defendant, and is credited to Columbia Fire Company No. 5 (plaintiff herein), through membership of which company he became a member of the defendant association; that since bis membership of the defendant association he has always obeyed tlie constitution, etc., of the same, and been in all things in good repute and standing. That on 14th April, 1884, at a regular mooting of the defendant association, said Dougherty presented a petition in which he set forth that on 3d March, 1884, at a meeting of the plaintiff company, of which he was an exempt member, after a pretended trial on fictitious charges and despite bis protest, he was declared expelled from his membership in the plaintiff company; and defendant avers that, if said expulsion had been legally and properly done, it would have the effect of depriving the said Dougherty of all relief that he would otherwise be entitled to at the hands of the defendant association, and he would he and remain a member in had standing upon the rolls of the defendant association until his expulsion should have been rescinded by the company from which he was expelled; hut defendant avers that such expulsion, to be binding and have full force and effect, must have been conducted in all things in accordance with the constitution, by-laws, etc., of the defendant association, and must have been based upon real and substantial charges, and not upon fictitious ones, otherwise it would he null and void and could and would have no force and effect. That the said petition of Dougherty contained allegations and charges which, if true, showed such a wanton and deliberate violation of tlie charter, etc., of the defendant association' and of the rights and privileges of said Dougherty as a member of the defendant association, which would strike with nullity the aforesaid expulsion and render it as if it had never been, and defendant avers that it was her duty to inquire into and investigate tlie matters complained of in said petition of Dougherty; that she had the right to conduct this investigation by'reason of the inherent powers that exist in all corporations for the proper protection of the rights and privileges of their members; and defendant avers that she did investigate said charges and complaint, and that the result of said investigation was the resolution complained of, which had the effect of annulling said pretended expulsion and restoring the said Dougherty to the position he occupied before the alleged expulsion took place.

“ The only question really before this Court is, whether the Firemen’s Charitable Association had an appellate jurisdiction over the action of Columbia Steam Fire Company No. 5, in the case stated.”

Upon this statement of the pleadings it is manifest we have no jurisdiction, hut there is a formal allegation at the close of the petition that the plaintiff has suffered damage to the amount of three thousand dollars. The plaintiff had judgment below restraining and injoining tire defendant from continuing Dougherty on its roll of members, and on the defendant lodging its appeal here, the plaintiff moved to dismiss on the ground of our want of jurisdiction. We refused that motion for the reason that a party is estopped from denying his own jurisdictional allegation, and we adhere to the principle there established. Motions to dismiss do not usually necessitate an examination of the merits. They rarely do and did not in this case.

But now that we have examined the whole case we find that the allegation of damage is fictitious and unreal. No evidence was offered to sustain it. No allusion was made to it on the trial. Of course the judgment below gave not a dollar, and equally of course no amendment of it is prayed here since there is no proof whatever of any damage.

It is therefore patent that both parties have treated the suit as npt involving any moneyed demand. Dougherty is not a party to it. If he has been aggrieved by any act of- the plaintiff, he has made no complaint to a court of justice about it. If he has suffered any damage by such act, he does not seek redress at our hands. These two corporations alone are disputing whether the conduct of the one in expelling a member is reviewable by the other, and however interesting the determination of that question may be to them, wo can take jurisdiction of it only under constitutional warrant.

In Breaux vs. Judges, 34 Ann. 1220 the case was admittedly appeal-able somewhere, and the appellant having been led into the Circuit court by the appellee’s own jurisdictional allegation we would not permit him to be ousted of his appeal by a subsequent counter allegation. The difference of this case at its present stage is patent.

While we would not permit the plaintiff to avoid our jurisdiction by a denial of his own allegation, the question whether we have jurisdiction lies behind that, and when the examination of the merits discloses want of it we must take cognisance of it and act accordingly, and therefore we dismiss the appeal of our own motion.

Rehearing refused.


author: Fenner, J.

text:
    No. 9308.
    Levy, Loeb, Scheuer & Co. vs. Joseph H. Acklen. State National Bank, Garnishee.
    It is thoroughly settled that the act oí* 1839, authorizing garnishment proceedings under-writs of fi. fa., did not abolish former modes of seizing incorporeal rights, and that valid seizure of such rights was effected by service of notice of seizure upon the debtor thereof.
    The debt due by a hank to a depositor of money, is an incorporeal right. The fact that the writ of ft. fa., was issued to the sheriff of another parish, and the notice of seizure made and served by the latter, does not affect the case. £?o other officer could execute the writ than the sheriff of the domicile of the debtor of the incorporeal right. C. P. 642.
    APPEAL from the Civil District Court for the Parish of Orleans. .. Houston, J.

      Thos. J. Oooley for Plaintiffs and Appellees.

      J. MeOonnell and H. H. Upton for the Garnishee and Appellant.
   Tlie opinion of the Court was delivered by

Fenner, J.

On a judgment against defendant rendered by the district court of St. Mary parish, plaintiffs issued a writ of fieri fiadas addressed to the civil sheriff of tlio parish of Orleans.

On the second of August, 1884, the sheriff served on the State National Bank a n vtice of seizure of. the rights and credits of Acklen in its hands.

At the date of above notice, the bank was indebted to Acklen in the sum of $2018.87.

Acklen, being informed of this seizure, sought to rescue Ms money from the grasp of Ms creditor, and, to that end, drew Ms check for $2000, which he induced the. bank to pay upon furnishing his bond with security to hold it harmless.

Petition and interrogatories in garnishment were not served upon the bank, until after this'payment, and, in its answers, the bank denied indebtedness except in the amount of eighteen dollars and sixty-seven cents. Upon proceedings traversing the answers of garnishee, and upon proof of indebtedness in the sum of $2018.67 at the date of service of the notice of seizure, judgment was rendered against the bank for the entire amount, from which the present appeal is taken.

The correctness of the judgment depends upon the question whether the service of the notice operated an effectual seizure of the debt due by the bank to Acklen.

The question is not an open one. It has been very deliberately settled by repeated decisions of this Court, that the act of 1839, authorizing garnishment proceedings under writs of fi. fa. did not abolish former modes of seizing incorporeal rights under such writs, and that valid seizure of such rights was effected by service of notice of seizure upon the debtor of the rights. McDonald vs. Insurance Co. 32 Ann. 596; Stockton vs. Downey, 9 Ann. 606; Safford vs. Maxwell, 23 Ann. 347.

Our closest scrutiny fails to suggest any ground for not applying this principle to the present case. Wheiher mere notice of seizure would avail as a seizure of corporeal effects in the hands of a third person, is a question not before us.

It cannot be pretended that the money due by the bank to Acklen was a corporeal effect or anything else than a simple debt or incorporeal right, which, prior to the Act of 1839, could not have been seized otherwise than by notice on the debtor of the right.

The writ was properly directed to the sheriff of the parish of Orleans and the seizure could not have been made by any other officer, as expressly provided by C. P. 642.

Aside from the intrinsic correctness of the decisions referred to, the question is of a character peculiarly entitled to the application of stare decisis.

Judgment affirmed.