text:
    No. 11,855.
    D. A. Breard, Jr., vs. Citizens Bank of Louisiana et al.
    The “calls ” for contribution are legal.
    The act 246 of 1858, authorizing the directors of the Citizens Bank to transfer or set apart ajstated number of shares of stock as cash shares, did not have the effect pro tanto of discharging the mortgage indebtedness.
    That act declares that the contribution due on the cash shares, comprising the capital stock, shall remain as heretofore, payable by each of the mortgage stockholders respectively.
    The shareholder had not paid anything upon the shares; heveas on the contrary in- . debted for them. The statute authorized the reduction of the number of shares of the mortgage shareholders, by converting certain shares to cash shares.

      The indebtedness of the mortgage shareholders remained the same, and he was required to pay the same “ calls ” as he would have had to pay if his shares had not been thus converted into cash shares.
    The rule would not apply if the shareholder had paid his stock in full or in part.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Richardson, J.

      Stubbs & Russell for Plaintiff, Appellant.

      Henry Denis (O. T. Madison and E. J. Lamkin, of Counsel), for Defendants, Appellees.
    Argued and submitted June 13, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Breaux, J.

The Citizens Bank seeks to foreclose two mortgages executed by plaintiff’s father in its favor, one executed on the 7th day of September, 1837, and the other on the 13th day of July, 1838, both to secure the payment of seven hundred and fifty shares and of thirty shares of the capital stock of that bank. There was a release by notarial act to the mortgages in 1887, upon a portion of the property originally described, as set forth in the petition for order of seizure and sale.

There is no difference regarding the amount save that plaintiff alleges in his petition for an injunction that twelve shares of stock were taken from his father by the bank and sold and the proceeds received by the bank.

It is urged by the plaintiff that the bank having taken these twelve shares of stock and disposed of them, he can not be compelled to pay for stock thus taken. The plaintiff admits [that he and his coheirs accepted the succession of the mortgagor on 30th of August^ 1875. In the partition he received one-half of the land and his coheir the other.

The other grounds of injunction are: That at most his property is mortgaged only to the extent of his virile shares in the succession of his ancestor, which is one-half.

We think it sufficient, upon this point, to state that the codal provisions of the law are, that a creditor holding a special mortgage can not be compelled to foreclose on one of two properties covered by the same- mortgage for a portion of the mortgage indebtedness. Every part of the property is liable for the payment of the debt.

The second ground set forth in the injunction is that the mortgage had been transferred to Hope & Co.; that the State, by special legislative enactment, became the pledgee of the mortgage securities, and held these securities to secure the payment of the bonds.

That the charter of the bank was forfeited in 1842, and the State assumed control and liquidation of its affairs.

That by Act 100 of 1847 of the General Assembly, the bank was authorized to require such payments on the stock by its stockholders as would realize funds sufficient to meet the obligation of the State for and on account of the bank.

That in 1850 the directors adopted a resolution fixing the liability of each stockholder at seven dollars per share, payable in seven annual instalments of one dollar each, and that the State declared that the payment of the sum of seven dollars on each share would relieve the stockholders from any further liability on account of the bonds issued by the State in favor of the bank; that the amount having been paid, further contributions can not be required. The plaintiff invokes Act 100 of 1847 as having, in view of his compliance with its terms, operated a complete discharge. He pleads specially that all the acts of the Legislature in reference to the Citizens Bank, adopted since May, 1850, are laws impairing the obligation of contracts; that they are violative of the Constitution of the State and of the general government.

The court long since characterized the transfer of the securities granted by shareholders to the State as a species of pledge.

As a matter of fact the mortgages by which the shares were se - cured, as to their payment, were never actually handed to the State; they remained with the bank.

It is well known that the bank’s existence dates from 1833, that the shares were fixed at one hundred dollars per share, secured by mortgage.

The advantage held out to the subscribers was the loan to which he was entitled and the number of his shares thus secured. It was designed that the aggregate of the mortgages should secure the capital, the bank was authorized to borrow to conduct the bank’s affairs, pay the stock of the subscribers and the loans to the stockholders.

In order to facilitate the management of the bank in obtaining these loans the directors were authorized to issue bonds payable by equal portions in the course of a number of years. For the payment of these bonds the mortgages of the stockholders were to remain a pledge to the holders of the bonds, until the final liquidation of the affairs of the bank.

On the face of the bonds issued in 1835, the Citizens Bank acknowledges its indebtedness to the bearer for the sum of one thousand dollars, amount of each bond. The modes adopted did not at first prove successful; investors did not choose to lend their money upon the security offered.

In 1836 the faith of the State was pledged, and the amount desired was obtained. The form of the bond was changed from what it was under the prior act.

Upon its face the State of Louisiana acknowledged its indebtedness to the Citizens Bank for the amount of the bond.

For the guarantee of the bond thus issued, and for which the State had pledged her faith, the securities granted were transferred to the State and the holders of the bonds. Thus the State became the transferee (together with the holders) of the bonds she had issued.

The court has heretofore decided that the fictitious tenure by the State of these bonds and securities was a species of pledge.

In subsequent decisions this court also decided that the mortgagors, who executed mortgages to the Citizens Bank are not released from the payment of the mortgages by any discharge which may have been granted by Hope & Co., the bondholders, to the banking department of the Citizens Bank, so that the relation of the State to the bonds, and that of the bondholder to the banking department, was not a defence which could avail the mortgagor as a debtor, as declared in the deed of mortgage to the bank. The capital of the bank consisted of the money raised, as already mentioned by the subscription to the bank of the stock, secured by mortgage.

It was in proof that “he,” the mortgagor, “acknowledged himself by these presents to be justly indebted to the said bank in the sum of-,” it was not possible to hold that the mortgagor was not indebted to the bank, but that he was indebted to the pledgees of the bank.

We return to enactment 100 of 1847, invoked by plaintiff. It authorized calls upon the stockholders. Plaintiff pleads that having paid the calls made under that act he has a right to immunity from further calls.

This court has decided that Act 100 of 1847 did not have the effect of relieving the stockholders of the Citizens Bank from all further contributions.

In that legislative act, in the different resolutions of the Board of Directors, there is no such limit to contributions as that pleaded by plaintiff.

We examined that point in the case of the Citizens Bank vs. Heirs of Gay, 47 An. 551, and gave it all the attention we could command. Our conclusion was that the act in question did not secure the shareholders from future calls.

The plaintiff has also interposed the plea of prescription.

The grounds upon which he bases that plea are similar to those pleaded in the case cited supra.

For the reasons assigned in that ease prescription is not a bar to the recovery of defendant’s claim.

The points heretofore decided here were submitted both in the brief and orally, without extended argument in their support, for the reason, counsel stated, of recent decisions of this court on similar issues.

While plaintiff’s counsel did not abandon any of the grounds of the injunction he argued solely against the demand for contribution on twelve stock shares disposed of by the board of directors of the bank, uoder the authority of the Act 246 of 1853.

These twelve shares, if deducted, would reduce defendants’ demand to the amount of two hundred and eighty-eight dollars. The plaintiff’s insistence is that he should not be condemned to pay contributions on stock sold to another; that mortgages are only accessory to secure a debt or obligation, and if the principal obligation be discharged the security becomes inoperative. The whole argument is based upon the idea of a divestiture of title to property without compensation; the taking of property without process of law and a plain violation of the construction of the Constitution.

From plaintiff’s premises the argument is unanswerable and conclusive. But his premises are not sustained. They receive no sup - port from the facts as we understand them.

The plaintiff overlooks that (different from the shares in other similar institutions) his shares are not paid-up shares. They represent an indebtedness of the shareholder to the bank, instead of a credit. It is not in proof that plaintiff or his ancestor paid these shares, or the amount borrowed, for which these shares secured by mortgage were deposited as security.

The law-making power in 1858, when this indebtedness was more clearly impressed upon the minds of the debtor, creditor, and of the members of the Legislature, and less prone to be influenced by sincere and honest, but none the less erroneous theories, enacted the “ mortgage existing against the stockholders to secure the portion of the stock so set apart shall not be thereby considered as raised, and the contribution due on the same shall remain as heretofore, payable by each of them respectively.”

The purpose, if we correctly appreciate the facts developed by the record, was not to lessen the payments on the shares due.

In other words, the amount of the indebtedness remained, and calls for payment were possible; only the number of shares was less to the extent of not more than one in fifteen.

In Citizens Bank vs. Heirs of Gay, 47 An. 551, it was argued recently that under Act 45 of 1873 a call was made only upon the mortgage stockholders.

That it was contrary to the rules of equality laid down in Brown vs. Insurance Co., 3 An. 177.

It was urged that the cash stockholders should also contribute (that is the stockholders who have paid up in full their shares under the Act 246 of 1853).

We were not impressed by defendants’ theory upon this point when it was presented in the cited case.

In the case under consideration the mortgage shareholder objects to these “ calls,” for reasons already mentioned, and thereby gives cause for inferring that the “calls” should be paid by the cash stockholders who have paid their shares in full.

At first we were impressed by the argument. Upon consideration it became manifest that the “cash shareholders” and “mortgage shareholders” are in reality words of identification; that the “ calls ” are made for the purpose of paying an indebtedness.

The case cited supra, Brown vs. Insurance Company, as sustaining a principle of equality, has no application.

The shareholder in the cited case had made payment of an amount upon his shares, and he was not a debtor to the company. He, therefore, had something to his credit on his shares. Here the shareholder has made no payment upon his shares other than amounts that went to the extinguishment of his indebtedness for money borrowed.

Under the state of facts here, the conclusion is inevitable. The judgment must be affirmed.

It is affirmed.

Nicholls, C. J., absent.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,852.
    The American Freehold Land and Mortgage Company, of London, Limited, vs. The Heirs and Legal Representatives of J. B. Williams, Deceased.
    An appeal from an order of seizure and sale, and an injunction against it, haying been argued and submitted to this court contemporaneously, and the injunction suit haying been decided, this court will take notice of these proceedings, and exproprio motu, abate the appeal.
    APPEAL from the Fifth Judicial District Court for the Parish of Morehouse Potts, J.

      Bussey & Naff, John C. Pugh and H. B. Boyd for Plaintiff, Appellee.

      E. T. Lamkin for Defendants, Appellants.

      Newton & Hall for Third Opponents and Appellants.
    Argued and submitted June 13, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Watkins, J.

This is an appeal from an order of seizure and sale in foreclosure of a mortgage, hence the only question presented for consideration is was there sufficient evidence to authorize the fiat?

It is matter of which this court will take judicial notice, that the appellants have sued out an injunction against the order and the seizure thereunder since this appeal was obtained and prosecuted, involving the validity of the proceedings in pais — the injunction and appeal having been argued and submitted to this court simultaneously, and the injunction suit having been this day decided. To go back and decide the issues raised on the appeal would be too much like reasoning in a circle.

.We think the purposes of justice would be best subserved by abating the appeal ex proprio motu at appellants’ cost.

Appeal dismissed.

Nicholls, C. J., absent.


text:
    No. 11,847.
    W. W. Armistead vs. Vicksburg, Shreveport & Pacific Railroad, Consolidated with Mrs. Lucy Jackson vs. Vicksburg, Shreveport & Pacific Railroad.
    When a space which is indicuted on the plot of a town site as a public street is used, occupied and enjoyed as such for a series of years for the uses and purposes of ti affic and commerce, and private rights have been acquired with reference thereto, the dedication to public use has thereby become so effectual as to preclude the owner of the soil from retaking the property froe from the servitude of way.
    When a dedication to public use of certain spaces as streets is made by a public act duly recorded, the map or plot thereto annexed and made a part thereof becomes part of the authentic evidence of the dedication, and the spaces, measurements and distances may be examined and used in connection with the act in determining the completeness and sufficiency of the dedication.
    The acts and conduct of a person who is a party to an authentic act of dedication are bound by the contemporaneous interpretation such acts and conduct have placed upon it, and on the faith of which the public has acted during a series of years, and with reference to which property rights have been acquired.
    APPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      J. E. Reynolds and J. if. Dormon for Plaintiffs, Appellees.

      Stubbs <& Russell and Wise & Herndon for Defendant, Appellant,
    cite: 37 An. 497; Am. and Eng. Ency. Law, Vol. 5, p. 402; 41 An. 867; 7 Am. and Eng. Corp. Cases, 421; 3 An. 285.

      Argued and submitted June 11, 1895.
    Opinion handed down, June 21, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a verdict of a jury, and the judgment thereon based, in favor of the plaintiffs and appellees, decreeing (1) that what is denominated as Myrtle street in the town of New Arcadia is a public street of that town; (2) that there are obstructions now in said street which should be removed ; that the plaintiff and appellee, Mrs. Lucy Jackson, should have and recover of and from the defendant the sum of two hundí ed dollars, for the damages which were occasioned to her property by the increased volume of water which was thrown upon her property by the defendant, on account of the obstructions it was ordered to remove — all other claims for damages being rejected and disallowed by the jury.

In this court W. W. Armistead, plaintiff and appellee, appears and answers the appeal, and prays that the judgment appealed from be so amended as to order the defendant to remove the extension of their station and other improvements from Myrtle street in the town of New Arcadia; and further so as to award him the sum of three thousand one hundred and seventy-five dollars actual damages, and the additional sum of five thousand dollars punitive damages.

Mrs. Lucy Jackson also answers the appeal and prays a similar amendment as to the removal of the obstructions complai ed of, and for an increase of the amount of damages allowed to four thousand five hundred dollars actual damages up to the time of rendering judgment, and two dollars and fifty cents per day, for each additional day, until said obstructions shall have been removed out of Myrtle street, and in the further sum of five thousand dollars punitive damages.

While it is not conceded to be perfectly accurate in one or two particulars, and not exactly conforming to the maps and profiles that are introduced in evidence, we will extract from the brief of the defendant’s counsel an exhibit which pretty clearly exhibits the locus in quo and .discloses the matter in controversy between the litigants to be, that portion of ground which is designated as a parallelogram, through which the line of the defendant’s track is delineated:

The claim of the plaintiffs is that when the addition to the town named and styled New Arcadia was plotted the space which is designated on the sketch as Myrtle street was extended entirely through the town from north to south, and dedicated by the owner of the soil to public uses as a street or passage-way for the public, and which, on account of such dedication to public use, the defendant had no legal right to obstruct in any way.

On the other hand, that of the defendant is that its franchise and right of way entitled it to construct its depot, buildings and other works and improvements needful for the operation of its trains and the handling of its traffic across the space asserted to be so dedicated to public use, and that it is legally entitled to use and maintain the same.

With great elaboration and detail plaintiffs have stated their case to be, that recently, and without any right or authority, the defendant has built an extension to its depot, so as to extend it across Myrtle street, and thus obstruct its use by the public, and precipitates a large quantity of water upon the adjacent property of Mrs. Lucy Jackson.

They aver that the defendant is estopped from denying that Myrtle street crosses the railroad track, and that the ground on which the extension of the depot is built is a part of Myrtle street, for the following reasons, viz.:

1. That under an agreement between O. Q. Butler, P. P. Stubbs, P. Y. Dabney and the Vicksburg, Shreveport & Pacific Railroad Company, the town of New Arcadia was surveyed into lots and streets, one-half of said lots being on the north side of the defendant’s track and the other on the south side thereof; one-half of the lots being on the east side of Myrtle street and the other half of the lots being on the west side thereof, a map of the whole of which was made and filed by defendant.

2. That as a part of said agreement O. Q. Butler, in 1884, executed a deed donating to the defendant a right of way for its depot grounds, as indicated by the map; and likewise donated streets to the public, as same are actually staked off on the ground.

3. That the defendant built the Myrtle street crossing over the track, and that this crossing, and the stakes on each side, showed that Myrtle street continued uninterruptedly across the railroad of the defendant.

4. That in pursuance with said deed and dedication the defendant sold lots on Myrtle street, and especially lots one (1) and two (2) and four (4) and five (5) in block P of the plan of said town.

5. That the defendant itself treated the crossing of Myrtle las a public crossing continuously from 1884, the date of the dedication, to 1892, and that in the meanwhile all of its acts were such as to> create the belief in the mind of the public that this space had been dedicated to public use, and did nothing which was calculated to give notice to the public that it was not a public crossing.

6. That the town authorities worked Myrtle street and kept it in repair up to the railroad track on both sides, and cut ditches on each side of the street up to the track of the defendant, and it kept in repair the crossin? over the track, and dug'ditches on each side of the street under its track.

Then follows the general averment that Myrtle street was the principal street of the town, and prior to 1892 almost the entire trade of the town crossed the railroad track on Myrtle street crossing. That the obstruction to Myrtle street has caused great loss and damage to the plaintiffs in their respective businesses.

That by the obstruction which the defendant placed on Myrtle street, a large quantity of rain water had been diverted from its natural and legitimate course and precipitated upon the property and premises of the plaintiff, Mrs. Jackson, causing her great damage and injury.

The defence of the railroad company is a general denial, coupled with the special defence that the space of ground, as indicated upon the sketch, between Hazel street on the east and Maple street on the west, and designated as a parallelogram, through which its track is traced, is its private property, and that Myrtle street does not cross it.

That Myrtle street north terminates at this parallelogram on its north Side; and likewise it terminates at this parallelogram on the south side. That no part of the space which is included within the limits of said parallelogram has been at any time dedicated to public use, directly or by implication. That if it was so used by the public as a street, it was with the distinct understanding, as expressed by the defendant’s agent, that it was so used without the consent of the company, and that the public should acquire no right thereby. That the attempts of the town authorities to assume control of this space as a locus publieus was, at all times, protested against by the company’s agents, and their protest was effectual in preventing undue interference. That the company has always denied and resisted the right of the town to extend its authority so as to include the property in dispute.

With respect to the claim of Mrs. Jackson, the defendant’s answer is that the site of the town, at this particular locality, is on a steep inclination, on the side of which her property and improvements are erected, and that this declivity naturally drains the rain water rapidly toward the same. That the front of her property is immediately upon a natural drain and owes a servitude to the property above. And finally, that the particular culvert that is complained of now was built before the plaintiff (Mrs. Jackson) acquired her property, and that her purchase subjects her property to this servitude of drain.

The pleadings, and the proof at the trial as well, took a very wide range.

The evidence as to the’ original dedication is full and complete, and is shown by a formal notarial act by the owner of the soil, and was duly recorded in the recorder’s office on February 7, 1884.

The deed declares that O. Q. Butler is the lawful owner of a certain described tract of land, which is altogether unencumbered. That being desirous of extending the limits of the town, the act declares that he therewith submits a plat of the town of New Area-ilia, which he has caused to be made from an actual survey of eighty acres of his said land; besides including in said plat the whole of the balance of said tract above described, and portions of land adjacent thereto * * * all of which lies on the forty-eighth mile of the Western Extension of the Vicksburg, Shreveport & Pacific Railroad. And the said Butler further declares that, in consideration of the location by the said railroad company of its depot on his said land, and for other considerations received from the company, he has transferred, sold and assigned, and by this act hereby transfers, assigns and delivers, to the said railroad, the part of said plan indicated thereon as depot ground, and comprising four and thirty-seven one-hundredths acres, and the right of way, as actually shown, through the whole of said one hundred and sixty acres of land, to have and to hold the same, both depot grounds and right of way as plotted, surveyed and staked out on the land itself, unto the said railroad company and its assigns forever. And the said Butler further declared that he now attaches hereto said plat of the town of New Arcadia, hereby dedicating all the streets as marked thereon to the public use forever.”

This deed is signed by C. Q. Butler and F. Y. Dabney, O. E., superintendent of the defendant; and it is signed by Frank P. Stubbs and H. H. Russell, as attesting witnesses.

Accompanying this deed of dedication is the plat of the locus in quo, on which are endorsed these words, viz.:

“ Plan of the Town of New Arcadia.

“ On the

“ Vicksburg Shreveport & Pacific Railroad

“47 miles west of the Ouachita River.”

To identify the plat with the deed of dedication, same was paraphed by the notary who passed the act, ne varietur the 2d of February, 1884.

A further endorsement by the clerk and ex-officio recorder of the parish of'Bienville, placed on the plat, shows that same was “ filed for record on the 7th of February, 1894,” contemporaneously with the deed of dedication.

On this plat there is delineated the space of ground which was conveyed to the defendant.

Amongst others Myrtle street is delineated on the plat as an open space or way of eighty feet in width, and extending entirely through the town from north to south, at right angles with the open space which was conveyed to the defendant.

On either side of this space is an avenue of sixty feet in width, one of which is named “ R. R. Avenue North,” and the other is named “ R. R. Avenue South.”

This space extends east along the line of the railroad to the space indicated as Hazel street on the plat, and west to the space indicated as Maple street — Myrtle street being between the two and parallel therewith.

One noticeable feature of the plat is that the name “Myrtle street” is plainly written in the space bearing the name, the word “ Myrtle ” being written in that portion of'the space which is south of the railroad, and the word “ street” is written in that portion which is north of the railroad. The same is true of Elm street, Laurel street and Hazel street, which are east of Myrtle street, and also of Maple street, Beech street and Cherry street, which are west of Myrtle street.

Running parallel with the railroad there are Locust street, Chestnut street and Sycamore street, on the south side of the railroad; and First, Second, Third, Fourth and Fifth streets on the north side •of the railroad.

The foregoing is a complete analysis.of the dedication of the streets and space of the defendant in so far as the record is’concerned, leaving no doubt as to the locus, the intention to dedicate and the fact of dedication — the proof disclosing that all the streets and squares were staked and measured as indicated in the deed and plat.

Quite an important feature of this case is that the defendant had acquired and owned an interest in the property of this new town. Also that the defendant first built the crossing onjMyrtle street even before it had erected its depot buildings, as was stipulated in the deed of dedication, thus clearly evidencing its contemporaneous construction of its rights thereunder.

Without going fully into the details of the matter we will state, in synoptical form, the result of our investigation of the testimony found in the record.

That at the time of the dedication there was a survey made of the locus and stakes put down at the corner of each block, on either side of the railroad track. Nothing indicated to the eye of an observer that Myrtle street stopped at the defendant’s parallelogram, but, on the contrary, it appeared to extend across the track. At the crossing of the track Myrtle street had the same appearance as other streets of the town.

That not only was the crossing on Myrtle street established by the defendant, but it was worked and kept in repair by the company’s servants and employees up to 1892, when they undertook to establish an addition to its depot over the street crossing, and therewith blocked the passage-way.

During the series of years from 1884 to 1892 the authorities of the town of Arcadia worked and kept in repair the street on either side of defendant’s track, and caused a ditch to be dug on either side of the street, and caused the like ditches to be dug under the bed of the railroad, from north to south, entirely across the defendant’s parallelogram. That the defendant’s servants and employees dug the ditches underneath the bed of the railroad, and kept the same open and in repair.

That defendant built its depot, originally, on a line with the west side of Myrtle street, on both sides of its track, and also on a line with the business houses on the west side of said-street, above and below the railroad track. That the railroad crossing came right up to the east end of the defendant’s depot. That the depot was not built by thedefendant until six or eight months after the establishment of the street crossing.

That the warehouse which stands adjacent to the depot was built up to the east line of Myrtle street by the direction of defendant’s agent, the west end being placed on a line with the east side of Myrtle street, and on a line with the buildings on the east side of Myrtle street, above and below the railroad. That this warehouse having thus been established, the entire length of Myrtle street was left open, and free from obstruction. That from the time the depot was first built, in 1884, to the time of the erection of the addition thereto, in 1892, the crossing on Myrtle street was the principal railroad crossing in the town of Arcadia. That it was used as a public crossing, and Myrtle street was the main route of travel for people going in and out of the town. That this crossing was freely, openly and publicly used as part of York street from 1884 to 1892, without question or dispute. That during that interval of time properties and town lots in the vicinity of Myrtle street were bought and sold with reference to the uses and conveyances of this as a public crossing of the defendant’s track, and common for the purposes of the businesses and trafile of the public, and that on that account higher prices were demanded and obtained.

That when, in 1892, the defendant proposed to extend its depot east across Myrtle street, the town council made a formal protest against it, using the following language in its resolution, viz.:

“We beg'leave to say that we approve the plan except the occupation of the crossing east of the present depot. The crossing named is a crossing which has been declared as such by action of the town council, and it is the main thoroughfare of the town. Hence, to allow said crossing stopped up would materially militate against the interest of the whole community, both town and country. Therefore, we respectfully ask that the extension be made on the west end of present depot, or that the present depot be moved west sufficiently to admit of the addition being made to the east end without obstructing the erossiug above named.”

^Reference to the plot of the town discloses that the defendant’s right of way, at the west end of its former depot, at its intersection with Myrtle street, is of one hundred feet in width and of four hundred in length, thus affording ample room for the proposed addition to its depot at that point, without detriment to the public interest by obstructing the Myrtle street crossing, or serious inconvenience to the defendant’s business.

The foregoing protest of the town authorities being altogether disregarded by the defendant, the council adopted a formal ordinance instructing and requiring the town marshal to wait upon defendant’s agent and representative and notify him that they “ would not submit to the closing, or in any obstructing the passage by foot or vehicle of the public crossing, immediately east of the defendant’s depot and known as Myrtle street,” etc.

This protest was likewise disregarded by the defendant, and Myrtle street was completely obstructed by the establishment of an addition to its depot across the space which had been dedicated as a public street.

From a ca eful perusal of the record, and as fully illustrated by the foregoing excerpts from the evidence, it is our deliberate opinion that the dedication was complete and perfect, and that it has been so interpreted by the acts and conduct of the defendant daring a series of years, and on the faith of which the public has acted and with reference to which private contracts have been made, and on which property rights have been founded.

In this situation the defendant had not even the color of legal right to arbitrarily resume possession, notwithstanding it was owner of the soil.

The subordination of the space indicated on the plat as Myrtle street was perfect and complete, and the public is entitled to be restored to its use.

In so far as the increased allowance of damages are concerned we regard them as too speculative and remote to base a judgment upon. Schleider vs. Deilman, 44 An. 462. We note the fact as one worthy of consideration that it was the defendant who moved for a new trial in the lower court; and that plaintiffs seemed to have acquiesced in its refusal without argument. But we think the plaintiffs are entitled to an amendment requiring defendant to remove the obstructions which are complained of.

It is therefore ordered and decreed that the judgment appealed from be so amended as to require the defendant to demolish and remove, at its own cost, the obstructions-which are complained of, and that, as thus amended, the judgment be affirmed.


text:
    No. 11,498.
    Guillaume Perez et al. vs. The New Orleans, City & Lake Railroad Co. and T. J. McMahon & Sons.
    The driver oí a tally-ho, laden with passengers to whom the proprietors had hired the vehicle to go to a specified destination and return, in attempting to cross a railroad track comes in collision with a rapidly approaching train, whereby the vehicle is demolished and one o£ the passengers killed, is guilty oí gross carelessness which subjects the proprietors to damages in favor of the deceased passenger’s parents.
    Unless the passenger undertakes the management and direction of the driver of such public conveyance in some manner, outside of indicating the route he is to travel, and the destination to which he is to take him,he incurs no responsibility to the proprietor for the happening of an accident through the driver’s acts; and the passenger’s failure to advise the driver does not subject him to the charge of contributory negligence.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor J.

      Louque & Pomes for Plaintiffs, Appellants.

      Walter D. Denegre and George Denegre for New Orleans, City & Lake Railroad Co., Defendant, Appellee.

      Gilmore & Baldwin for T. J. McMahon & Sons, Defendants, Appellees.
    Argued and submitted May 8, 1895.
    Opinion handed down June 3, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Watkins, J.

In June, 1892, plaintiff’s son, in company with nine other young men, hired from the defendants, T. J. McMahon & Sons, a tally-ho to carry them to West End. On returning at about the hour of 11 o’clock p. m. , the tally-ho came in collision with a train of the defendant railroad company, while attempting to cross its track at the junction of Canal street and Carrollton avenae; and, as a result of the collision, the tally-ho was demolished and the son of plaintiffs killed, after being dragged several hundred feet.

Alleging that the accident and fatal injury were occasioned by the mutual negligence of the engineer of the locomotive and that of the driver of the tally-ho, plaintiffs sued both, claiming against them in solido damages in the sum of ten thousand dollars.

The defendants, T. J. McMahon & Sons, tendered an exception to the effect that the firm had been dissolved, and that they were not suable in their partnership name.

The railroad company tendered a plea of no cause of action.

These exceptions having been overruled, and the railroad company having obtained a severance of tria1, each of the defendants filed an answer, that of McMahon & Sons being a general denial, and that of the railroad company being a general denial, coupled with the special defence that the accident was caused through the fault and carelessness of the driver of the tally-ho.

The cause first went to trial before a jury, who rendered a verdict in favor of McMahon & Sons, and on the following day there was a similar verdict in favor of the railroad company.

The plaintiffs have appealed from both judgments, and both causes are brought up in one transcript. With regard to the exception of McMahon & Sons, the facts appear to be as follows, viz.:

That they had been for several years engaged in the livery and undertaking business, and, for their own convenience, they sought to establish a limited company, but did not perfect it, or put their project into operation, at least in so far as the general public was concerned.

For instance, their old sign remained upon their vehicles, and particularly upon the one which was hired to the party of young men on the evening of the fatal accident. They continued to use the same bill heads. Their bank account remained unchanged, and their checks were drawn in the same way. The firm name was unaltered in the city directory.

As parties hold themselves out to a community, so will they be bound on their contracts. McDonald vs. Millaudon, 5 La. 403; Grieff & Byrnes vs. Boudousquie & Fortier, 18 An. 631; Story on Partnership, 36; 3 Kent, 31.

In Baldey & Lightner vs. Breckinridge, 39 An. 660, the court say: “In point of fact there may have been no partnership, but that can not affect the rights and claims of plaintiffs who dealt with the defendants as partners, and upon their own acts and representations to that effect.

“ Parties, though not .partners inter se, may be such as to third persons.”

We think this exception was properly overruled.

Notwithstanding the severance of trial the testimony on each of the trials was about the same.

The state of the appears jcase to be as follows, viz.:

On returning from West End toward the city the driver of the tally-ho took the] right-hand side of Oanal street coming in, and when he had reached the intersection of Carrollton avenue he attempted to cross over the track of the railroad to the other side, there being at that place a barricade erected so as to prevent travel upon the newly-graveled roadway on the side he was traveling. As a witness, the driver testified that before attempting to cross he looked and saw the approaching train, and, fully believing that he had sufficient time to cross the track ahead of the engine, he attempted to cross. The tally-ho was struck just in front of the rear wheels and completely demolished, six of the passengers being scooped into the engine. One jumped to the left hand, two to the right hand, and the plaintiffs’ son was killed.

This occurrence happened on a clear moonlight night, the railroad track was straight, and the headlight of the locomotive burning brightly, and the tally-ho carried regulation lights and Chinese lanterns besides.

The plaintiffs’ contention is that the driver of the tally-ho was guilty of great imprudence and want of care in attempting to cross, as he did, in front of a moving train and in full view of it, and that the defendants’ train was being run at a greater rate of speed than was prudent at the intersection of two important avenues of the city. That the engineer’s attention must have been attracted to the tallyho had it not have been for the|presence in his cab of a person who had no right to be there, the engineer being occupied at thi time with this visitor.

Therefore his conclusion is that both defendants are liable in solido.

The effort of counsel for McMahon & Sons was to show that the driver of the tally-ho was exceedingly careful in driving, and drove at a slow rate of speed; and to»put the blame upon the railroad' company on account of the reckless rate of speed at which it was being run at the time. While on the other hand, counsel for the railroad company use their best efforts to demonstrate from the evidence that the fault was exclusively that of the driver of the tally-ho, and resulted from his careless attempt to put his conveyance across the track, immediately in front of a rapidly approaching train, which was easily seen and plainly visible.

There can not be a doubt that the fault was upon one of the two, if not upon both — unless we are to adopt the theory that it was exclusively the fault of the driver of the tally-ho, and that he was the agent and servant of the passengers, and at their command and und.er their control and direction.

' Pretermitting any expression on that question for the present, we will first attend to the exception of no cause of action, which was tendered by the railroad company, and by the court a qua overruled ; and to which our attention is specially attracted by counsel for the railroad company.

It is to the effect that plaintiffs’ petition alleges that the immediate cause of the accident was the carelessness or negligence of the driver of the tally-ho on which the deceased was riding.

And the averment of the petition that is relied upon as sustaining the exception is the following, viz.:

That plaintiffs’ son, with others, “ hired of T. J. McMahon & Sons a wagonette, or tally-ho, driven by a driver, an employee of said firm; that said driver, when on Canal street in this city, at the intersection of Carrcllton avenue, attempted to cross the railroad track of the New Orleans City & Lake Railroad Company, when one of the trains of said company was approaching, when by reason of the approach of said train such attempt was dangerous, and that through the gross carelessness and recklessness of said driver in attempting said crossing, said wagonette was struck and demolished by the locomotive or dummy of the train;” particularly describing the manner of young Perez’ death.

Accepting this statement, the counsel for the railroad company say it is quite impossible for it to have been in fault, or guilty of negligence, if, as plaintiff alleges, the driver of the tally-ho attempted to put his conveyance across the railroad track when one of the company’s trains was approaching, “ when by reason of the approach of the said train such attempt was'dangerous, and that through the gross carelessness and recklessness of the driver said wagonette was struck,” and young Perez instantly killed.

And in this opinion we concur. The foregoing allegation is positive and unequivocal to the effect that when the driver attempted to cross the track the railroad train was dangerously near, and that he was guilty of gross carelessness and recklessness in attempting to cross. That admission of fact is binding on the plaintiffs, and there is no escape for them from its forre and effect.

Accepting that statement, how can it at the same time be true that the railroad company was at fault?

If the train was, at the time of the driver’s attempt to cross the track, dangerously near the crossing, it was certainly not to blame for the accident.

If this were an action by McMahon & Sons against the railroad company for damages, they certainly could not recover in the face of such an admission, and how can the plaintiff recover against the railroad company, having thus interposed as an independent, efficient cause, the gross negligence and carelessness of the driver of the wagonette?

We think it evident that the exception of the railroad company should have been sustained, and the suit, as to it, dismissed at plaintiffs’ cost. '

But with respect to the defendants, McMahon & Sons, the case is differently circumstanced. The plaintiffs’ son, with the other young gentlemen, hired from the defendants, T. J. McMahon & Sons, a tally-ho, a public conveyance, to transport them to West End and back to the city again. The defendants furnished the conveyance with a driver for a fixed and stipulated consideration. The defendants were engaged in the business of hiring conveyances, as they did on this occasion. That was their business. The only part the young gentlemen sustained to the transaction was that of persons who had, for a designated price, entered into a contraes of safe carriage with the defendants. The conveyance, as well as the team and driver, were at defendants’ exclusive risk, and their management and direction were under their control.

We find it pretty clearly established by the evidence that the driver was careful, and drove his team at a steady and moderate gait. On the way out, as well as on the return trip, to the point where the accident happened, nothing occurred which presents the appearance of recklessness on the part of the driver. But just as the driver came to the intersection of Carrollton avenue and Canal street, and finding the right-hand roadway blocked so as to impede his further progress, he attempted to cross his team to the opposite side, immediately in front of a rapidly approaching train. The night being clear, and there being no obstacle to impede his view, the driver must have been, and confessedly did see, the train, and was undoubtedly guilty of gross carelessness in attempting to cross, when by waiting a few seconds the passage could have been made with perfect safety.

The proof shows that the locomotive engineer could not possibly have slowed up his train in time to have prevented the accident, it having been less than a block away when the vehicle was first discovered. And we think this is apparent from the situation, as it is described by all the witnesses. It is true that the train was “ making time,” though not traveling faster than usual, and consequently it could not have been checked within the space of a single block. Therefore, the argument of the defendants, McMahon & Sons, can not avail them as an offset to the carelessness of their driver.

We do not regard the proof as showing, or the fact to be, that the plaintiff’s son was in any way identified with the driver, so as to defeat his action on account of his contributory fault. His seat in the tally-ho was at a little distance from the driver, and he was not in any manner directing or interfering with the movements of the train. Nor was this duty imposed upon him.

In Holzab vs. Railroad Co., 38 An. 185, quite a similar case is stated, and the court say:

“More elaborately stated, the doctrine is, that a party who is a passenger in a public conveyance is, in some way, identified with those who own or have charge of it, and that he can recover of the owner of another public conveyance that has collided with it and injured him thereby, only when they who own or have charge of the conveyance in which he is riding can recover — the principle being that their contributory negligence is imputable to him, so as to preclude his recovery from any injury when they can not recover in consequence of this negligence.

“ The doctrine was first asserted in Thorogood vs. Bryan, 8 C. B. 115, decided by the English Court of Common Pleas, and while generally followed in that country since, its correctness has been questioned there by high authority.

“In this country it has been followed by some courts and rejected by others.

“ It is so unjust to attribute to a passenger the negligence of the agents of the company in whose carriage he is riding; so untrue, in point of fact, that any identity exists between them; and so true that it can only be held to exist by a sort of legal fiction that it is not surprising there has been a judicial revolt against the doctrine.

“The only way in which the identification of a passenger with the driver or train conductor can result, is by holding the latter to be the servant of the former; but that can not be, because the passenger has no control over'the conductor; and the right to control the conduct of the servant is the foundation of the doctrine that the master is affected by such conduct, and is responsible for it., We should reject the doctrine as illogical and unjust, even in the face of authority as high as the English courts; but the question is set at rest for us'by a decision just rendered by the United States Supreme Court,” etc.

The case cited is Little vs. Hackett, 116 U. S. 366, the substance of the opinion being as follows, viz.:

“That a person who hires a hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both managers of the train and of the driver.”

In the course of their opinion, the court reviewed the case of Thorogood vs. Bryan, cited supra, and disapprove of it, citing: Bennett vs. Railroad Company, 36 N. J. (Law) 225; Railway Company vs. Steinbrenner, 47 N. J. (Law) 161; Chapman vs. Railroad Company, 19 N. Y. 341; Dyer vs. Erie Railway Company, 71 N. Y. 228; Transfer Company vs. Kelley, 36 Ohio, 86; Wabash Railway Company vs. Schacklet, 105 Ill. 364; Danville Turnpike Company vs. Stewart, 2 Met. (Ky.) 119; Louisville, etc., Railway Company vs. Case, 9 Bush. 728; Cuddy vs. Horn, 46 Mich. 596; Tompkins vs. Railroad Company, 4th West Coast Reporter, 537.

The opinion then proceeds:

“ There is no distinction in principle whether the passengers be on a public conveyance like a railroad train, or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on the hack do not become responsible for the negligence of the driver, if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. * * * From the simple fact of hiring the carriage or riding in it, no such liability can arise. The party hiring, or riding must, in some way, have co-operated in producing the injury complained of before he incurs any liability for it.5?

In commenting upon the same question the New Jersey court said:

“ If the law were otherwise, not only the hirer of the coach, but also all the passengers in it, would be under the constraint to mount the box and superintend the conduct of the driver, in the management and control of his team, or be put for his remedy exclusively to an action against the irresponsible driver, or equally irresponsible owner of a coach taken, it may be, from a coach stand, for the consequences of an injury which was the product of the co-operating wrongful acts of the driver and of a third person; and that, too, though the passengers were ignorant of the character of the driver, and of the responsibility of the owner of the team, and were even strangers to the route over which they were to be carried.” New York, etc., Railroad vs. Steinbrenner, 47 N. J 161.

This case is quoted and approved in Little vs. Hackett. Counsel for McMahon & Sons press upon our attention two New York cases, which have been recently decided, and insist that they sustain the opposite theory; but the cases referred to do not carry out their idea.

The first is Hoag vs. the New York, etc., Railroad, 111 N. Y. 199; but that case presents the question of an accident which happened to a gentleman while driving his own team — his buggy colliding with a passing locomotive.

The second is Buckett vs. New York Railroad Co., 120 N. Y. 290; but that case presents the question of an accident happening to a gentleman while sitting by the side of the driver of a buggy which he had hired — the buggy colliding with a passing locomotive.

Those cases are not in point, because they were not public conveyances. But in no event can the authority of those cases prevail over the various authorities we have collated.

On the faith of those authorities we assume it to be a proposition definitely settled that passengers on a public vehicle, whether street ear, railway train, omnibus or tally-ho, do not exercise any control over the conductor or driver, unless they undertake to superintend and direct him further than to indicate the route which they wish to travel or the places to which they desire to go, and consequently do not become responsible for the negligence of the driver.

On this question the proof is clear to the effect that plaintiffs’ son did not, in any manner, interfere with the driver in the management of his team.

Our conclusion is that the driver was solely and exclusively at fault in recklessly attempting to drive a heavily laden tally-ho across the railroad track immediately in front of a rapidly advancing train, at the hour of eleven o’clock at night; whereas by patiently biding his time for only a few moments he could have driven across in perfect safety.

It was the duty of the driver to have looked and listened before attempting to cross the railroad track. And notwithstanding that he did look and did plainly see the approaching train — the night being clear and the headlight of the locomotive distinctly visible — the driver rashly undertook to drive his tally-ho, containing ten passengers, across the track immediately in front of it, scarcely a block away and moving at a confessedly rapid rate of speed.

As between McMahon & Sons and the railroad company the fault was clearly that of the former, though it may be that the speed of the train was greater than is usual and customary, for it can not be supposed that the conductor of the train, seeing the term of McMahon & Sons traveling along a parallel roadway, believed that he would attempt to make the crossing. Consequently, he was taken by surprise, and was unable to put his train in a position to avoid an accident.

Consequently, we must examine the evidence and ascertain the measure of damages.'

Plaintiffs put their claim to compensation upon the ground that their son was suddenly precipitated from the tally-ho against the locomotive by the collision of the two, and was thereby horribly mangled ; that his body was dragged for a distance of several hundred yards; that he suffered great pain of body and anxiety of mind, and shortly afterward died.

On this score five thousand dollars are alleged to have resulted in damages to their son, for the recovery of which the right of action “has survived by law” to them.

Their further claim is that as the parents of the deceased they are personally damaged in the killing of their son in the sum of twenty-five hundred dollars, occasioned by their own mental suffering and mental anguish upon ascertaining his sad fate and in beholding his frightfully mangled condition. They further allege that their son was about twenty years old, living with and working for them. That by his death they were deprived of his companionship and of his association and of his services, and on this score they claim twenty-five hundred dollars.

The proof discloses that the young man was in his twenty-first year at the time of his death. That he was a butcher in the market, and was working for his father, and had been so engaged since he was large enough to work. When his father first saw his son, during the night of the accident, he was dead. His body was horribly mangled. His parents were awakened from their sleep and informed of his death. It was a great shock.

Being interrogated as to the value of his- son’s services the father said: “He was my right hand.” That he was so well up in the business that he could “ trust the whole business to him and let him carry it on.”

The evidence does not definitely show what length of time elapsed between the happening of the accident and the death of young Perez; but there was sufficient time for the train to make the first telephone station and the conductor to send the Charity Hospital ambulance and students to the locality of the catastrophe to render assistance.

Nor does it show any estimation of the value of young Perez’ service to his father, that is to say, in dollars and cents.

Without, however, apportioning the same to the different items, our conclusion is to award to the plaintiffs the sum of fifteen hundred dollars, in full of their demands.

It is therefore ordered and decreed that in so far as the railroad company is concerned, the judgment be affirmed, but that in respect to T. J. McMahon & Sons, it be reversed; and it is further ordered and decreed that the plaintiffs do have and recover of T. J. McMahon & Sons the sum of fifteen hundred dollars, and one-half of all costs.


text:
    No. 11,832.
    W. B. Thompson & Co. vs. E. L. Daniel, Sheriff, et al.
    It is a well established principle of jurisprudence that one can not judicially claim, atone and the same time, the thing and its price; nor can a litigant attach a judgment as null and void, and at the same time demand the fruits or proceeds of a sale made in execution thereof.
    A creditor whose claim is unsecured by either privilege or mortgage has no right, under O. P. 301, to compel another creditor, who has a judicial mortgage, as well as the privilege of a seizing creditor, to bring the proceeds of sale into court for a ratable distribution in concursu.

    APPEAL from the Third Judicial District Court for the Parish of Union. Barksdale, J.

      L. E. Thomas for Plaintiffs, Appellants.

      J. D. Everett (C. B. Roberts of Counsel) for Defendant Sample, Appellee.
    Argued and submitted June 6, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs are appellants from a judgment sustaining the defendant’s exception of no cause of action and dismissing their suit.

It appears from the record that in 1892 George E. Murphy became indebted to J. F. Sample in the sum of seven thousand and nine hundred dollars, for which he gave a confession of judgment, bearing date June 22, of that year.

In 1894 Sample filed his confession of judgment in court and proved same, and obtained a final and definitive judgment thereon; and as soon as the term of court had adjourned he caused a writ of ft. fa. to be issued thereunder, and the property of Murphy to be seized and advertised for sale.

Soon afterward the plaintiffs filed a third opposition to this seizure, coupled with an injunction restraining the sale, on the ground, mainly, that Sample had procured the seizure of all the property of their common debtor. They prayed for judgment against Murphy on his indebtedness to them, for the sum of about two thousand dollars, and asked for a decree canceling and erasing Sample’s judical mortgage on the property seized, praying that the proceeds of sale be brought into court and' ratably distributed upon their claims respectively.

The plaintiffs also allege that Murphy was insolvent at the time, to the knowledge of Sample, and that Murphy and Sample had resorted to collusion and fraud to create, in favor of the latter, a preference to which he was not entitled in law, by the registration of his judgment.

The position to which this case is assigned by the counsel of Sample is, that the plaintiffs seek to have the proceeds of the sale of the property of Murphy realized by the execution under Sample’s judgment, brought into court and “ distributed amongst all the creditors of Murphy (whereas) Murphy is neither a bankrupt nor a declared insolvent.” That plaintiffs’ debt is an ordinary one, not entitled to any lien, privilege, or any lawful cause of preference, and for that reason they have no standing in court under O. P. 396. That Sample was the first seizing creditor, and as such has the seizing creditor’s privilege on the property seized, which is a lawful cause of preference over the claim of opponents in the distribution of its proceeds. O. P. 722.

On the contrary, opponent’s counsel insist that the relief they claim is grounded on O. P. 301, which is couched in the following words, viz.:

“The sheriff may be enjoined from paying the claim of the plaintiff out of the proceeds of the property seized if a third person oppose such payment, alleging that the defendant had no other property to pay his debts except that which had been seized, and pray that the proceeds of the sale be brought into court to be distributed among all the creditors of the defendant, according to the order of their re - spective privilege and hypothecation.”

On the face of the papers plaintiffs’ action appears to be threefold, (1) seeking to recover a personal judgment against Murphy as a common debtor; (2) to strike down Sample’s mortgage and privilege so as to make way for the ratable distribution, that is proposed, of the sale under ft. fa.; (3) to obtain a decree of court ordering such ratable distribution of the proceeds to be made.

In other words, plaintiffs have sought to blend the relief the law accords in a revocatory action with that accorded in a third opposition.

They are at once confronted with the well-established principle of jurisprudence that one can not claim at one and the same time the-thing and its price; nor can he attack a judgment as null and illegal, and at the same time demand its fruits and proceeds.

In this case plaintiffs are in court claiming a proportionate share of the proceeds of a judicial sale, and at the same time demanding the annulment and .revocation of this lien and privilege of the seizing creditor, charging collusion and fraud. Provosty vs. Carmouche, 22 An. 135.

Such pleading is inconsistent and irreconcilable.

But there is no claim made that Sample’s demand is simulated or fictitious. Being genuine, Murphy had a perfect right to confess a judgment on his indebtedness to Sample. Stein vs. Brunner, 42 An. 772.

Sample was certainly entitled to have a copy of his judgment recorded so as to operate as a judicial .mortgage on Murphy’s property. He was equally entitled to execute his judgment as soon as the session of the court was at an end sine die.

Viewing the situation from this standpoint, the only course there was left open to the plaintiffs was to stand upon their third opposition, and abandon the cause as a revocatory action.

Coming to this proposition we have to consider what relief plaintiffs are entitled to under C. P. 301.

To our minds there is considerable force in the query of defendant’s counsel, viz.:

“Now, if (opponents and other creditors of Murphy) are to be paid in the order of their privileges and hypothecations, what right of action has W. B. Thompson & Co. in their suit to enjoin the proceeds and ask for their distribution over (Sample) as the first seizing creditor, whereas theirs is an ordinary debt, unsecured by any privilege?”

Their contention is that the provisions of C. P. 301 have reference to a settlement among creditors in concursu among all claims, privileges or mortgages, one or both, and that they have no reference to-the claims of ordinary, unsecured creditors, such as that of opponents. And in this view the averment of opponents’ petition to the-effect that Sample had obtained a seizure of all of Murphy’s property, who was insolvent to his knowledge and utterly unable to pay his debts, takes on a great deal of significance, but that significance is, that on the face Of the papers the claim of Sample enjoys a legal preference. Code of Practice, 301, was interpreted in the early case to mean that it made “ a provision in favor of creditors who have a higher privilege than that of the seizing creditor. It directs the proceeds to be divided among creditors according to their respective privileges and hypothecations, including the privilege obtained by the seizure.” Campbell vs. His Creditors, 3 R. 106.

Article of the Code 722 declares that the first seizing creditor is invested with a privilege by the mere act of seizure unless the debtor has been previously declared a bankrupt, and in this connection counsel for Sample very pertinently observes:

“Now, if a seizure created a privilege in those cases only in which the property of the debtor is sufficient to pay all his debts, the privilege would only attach in those cases in which it would be needless.”

Recognizing the difficulty of his situation, counsel for opponents assail the decision of the old court in Campbell vs. His Creditors, and say:

“We are fully aware of the decision rendered by Judge Martin in his last days as reported in the case of Campbell vs. His Creditors, 3 Rob. 106, and it is that decision we desire to attack, believing as we do, that the interpretation there placed on Art. 301 repeals it as effectually as if the same had never been written. It is the only decision we can find to that effect, and for that reason we do not consider it stare decisis.”

While it may be true that this is an isolated opinion of this court, counsel’s proposition takes too much for granted.

In the case of Mayewski vs. His Creditors, 40 An. 94, this court affirmed a very important principle of the insolvent law upon the faith of a single decision and said:

“If we were to express an opinion on it, as a new question, we would feel inclined to differ from the views therein expressed, but when we take into consideration the great length of time that that opinion has been suffered to remain undisturbed, we may safely rest our approval of it on the consecrated doctrine of stare decisis.”

But the opinion assailed is, in our opinion, in keeping with other and more recent adjudications under Code of Practice, 301, and we cite the following as inferentially applicable: Deneufbourg vs. Didion, 7 An. 344; Dobard vs. Baybi, 36 An. 136; Smith vs. His Creditors, 21 An. 241; Young vs. Municipality No. 1, 5 An. 736; Turner vs. Parker, 10 Rob. 154; Larthet vs. Hogan, 1 An. 330.

In our opinion, the language of the article itself is too obvious for any doubt or discussion.

The judgment of the court a qua is correct.

Judgment affirmed.

Nicholls, C. J., absent.