text:
    No. 7946.
    Insurance Oil Tank Company vs. John H. Scott.
    A suit brought in the name of a corporation -without designation of any officer, will stand when, on trial of the Exception taken on that point, it is shown that the action was instituted by the President with the approval of the Board of Directors.
    A corporation is entitled to have its trade-mark as well as a private individual, and may sue for its infringement.
    ‘.The infringer cannot justify his wrongful act by showing that the plaintiff has violated some # general law of the State, not affecting his right to have a trade-mark, hut on a different subject.

      In the United States, trade-marks may be patented, and when the word patented is put on the label of the article sold, though the merchandise itself is not patented, but the word is used in reference to the trade-mark and not for the purpose oí deceiving the public, the owner of the trade-mark will not be disentitled.
    The words “Insurance Oil” are a legal trade-mark.
    A trade-mark is not necessarily defective because it does not indicate the origin or ownership of the article.
    The seller is as much entitled to protection in his trade-mark when his goods are manufactured by others under his orders and directions, as when he is himself the manufacturer.
    APPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      Leovtj & Kruttschnitt for Plaintiff and Appellant:
    ¡First — “The leading principle of the law of trade-marks is, that the manufacturer or merchant who has produced or brought into market an article of use or consumption that has found favor with the public, and who, by affixing to it some name, device or symbol, which serves to distinguish it as his, and to distinguish it from all others, has furnished his individual guaranty,,oí its value, shall receive the reward of his skill, and shall not he deprived thereof by infringement or imitation.” 24 An. p. 96; Upton on Trade-Marks, p. 97; 6 Otto, p. 245 ; 1st Cooley on Torts, 359; American Trade-Mark Cases, pp. 479, 539 and 624.
    Seoond — Any purely arbitrary or fanciful name, device or designation may be used, provided the name selected is not a word in common use, to designate or describe the quality or .nature of the article. Such words cannot he exclusively appropriated by any one, as “ nourishing ” applied to a drink; nor can the name of a place he applied as a trade-mark, because others may see fit to do the same business at the same place. But such names as “ Charter , Oak Stoves,” “Congress Water,” “Bethesda Water,” Ethiopian” Stockings, “Grenade Syrup,” “Excelsior Soap,” “Sunlight Oil,” “Daylight Oil,” “Insurance Oil,” are purely fanciful and arbitrary names, and are good trade-marks. 1st Cooley on Torts, p. 362; Browne, Trade-Marks, Sects. 236, 274; American Trade-Mark Cases, pp. 530, 624, 479; Coddington’s Digest, Trade-Marks, Sec. 680 et seq., 1039; 10 Reporter, 809.
    Third — The trade-mark protects the merchant or seller ot an article, as well as the manufacturer. 6 Otto, 245; 24 An. 297; Am. Trade-Mark Cases, pp. 45, 166, 573, 627; Browne on Trade-Marks, Sects. 35, 62; Upton, Trade-Marks, p. 97; Coddington’s Digest, Sects. 7, 10, 11,14.
    ¡Fourth — Mere symbols or devices, or fancy and unmeaning words, by use and association, indicate origin, and thereby become legal trade-marks. Such words as “Excelsior,” “climax,” “Empire,” “ Charter Oak,” have been decided to he good words for this purpose. Browne. Trade-Marks, Sec. 150; American Trade Mark Cases, p. 736; 13 Wall. 322; 101 U. S. S. C. p. 51.
    ¡Fifth — Complainant will be protected even where there is technically no trade mark. 6th Otto, 245; 96 U. S. 245; 9th Reporter, 603; 33 Md. 252; 10 Reporter, 154; 11 Reporter, 241; 45 Cal. 467.
    Sixth — Though a fraudulent trade-mark will not he protected, au innocent mistake will deprive no one of remedy under the law. Where there is no motive for fraud in the owner of the trade-mark, and “ no intention to deceive,” an injunction will issue. High on Injunctions, Sec. 674; Coddington’s Digest, Trade-Mark Cases, Secs. 548, 561, 565, 570, 571; American Trade-Mark Cases, pp. 282, 559; 39 Conn. 450.
    And when the record shows the objection is removed, and another writ of injunction could he issued, the injunction will not he set aside. 18 An. Ill; 21 An. 324; 22 An. 207, 464; 23 An. 171; 25 An. 222; Rouque’s Dig. 315.
    Seventh — The admissions and the testimony show that the plaintiffs were legally incorporated under the Acts of 1855, Ho. 131, and of 1868, Ho. 73, amending the same, and are properly in court. Besides, the existence of a corporation de facto cannot be inquired into collaterally. 11 Reporter, 110, and authorities there cited; 4 Otto, 104; 2 W. & S. 190.
    Eighth — While exemplary or punitory damages are not given lor violations of trade-marks, a sufficient sum -will be allowed to cover all losses; — that, by injury to the reputation of the article sold under counterfeit trade-marks; that, for depreciation in price, caused by competition, and loss to complainant of the money made by defendant by his illegal traffic— “not smart money or vindictive damages, but full atonement for the wrong.” Browne on Trade-Marks, Secs. 503, 505; Coddington’s Digest, Trade-Mark Cases, Secs. 246, 1051. 1052; 4 McLean, 520.

      Olis. 8. Bice for Defendant and Appellee :
    First — Bodies corporate act judicially through representatives mentioned in their charter. The manager of plaintiff’s company had no lawful authority to bring this suit, sign the affidavit to petition and the bond of injunction. See Act of Incorporation, p. 369; C. P. 112; C. C. 438.
    Second — The plaintiff’s corporation has no showing in court to prosecute a suit for the protection of its mercantile or commercial business. Corporations in Louisiana are, by law, prohibited from such business. Sec. 60. 9th Ed. Angel & Ames on Corporations, C. C. 427, 432, 446; 4 "Wheaton, 636; 3 "Wendell, 583 ; Green’s Brice’s “Ultra Vires,” 79; Acts of'1855, pp. 182 and 183 ; Acts of 1868, pp. 84 and 85; Rev. Stat. of 1870, Art. 683 ; Act of 1880, p. 169; 22 An. 524; Vredenburgh vs. Behan et als., 33 An. (not yet reported) ; Browne on Trade-Marks, Seo. 370.
    Third — The alleged trade-mark is not a valid trade-mark.
    "Words descriptive merely, and not indicating origin or ownership, cannot constitnte a valid trade-mark.
    Words descriptive, or adopted because of, or to indicate a certain state of facts, cannot constitute a trade-mark.
    A person must be the inventor or have the exclusive right from the inventor to sell the goods of such manufacture to entitle such seller to a valid trade-mark ou the manufacture in question.
    Words are descriptive in one combination when not necessarily so iu another.
    Taylor vs. Gillies, 59 H. X. 331 (affirming same case); 5 Daly, 285; 101 U. S. Sup. Court, 51; 13 Wal. 320; 16 Pat. Off. Gaz. 680; Same, 136; 2 Sand (H. X.) S. C. Am. Trade Mark Cases 103; 14 Am. Law Rev. 419; 45 Cal. 467; 7 Laos. (U. X.) 151; 18 How. Pr. Rep. 64 ; S. C. Am. Trade-Mark Oases, 226.
    Fourth — The misrepresentation by plaintiff, in connection with or as a part of his pretended trade-mark, that the article sold by him was patented, forfeitedhisrighfctoprotection, even if such mark were otherwise valid. Rev. Stat. U. S. 4900, 4901; Browne on Trade-Marks, see. 72, p. 254; Coddington’s Dig. of Trade-Mark Cases, Secs. 548, 561 and 562 ; 5 Law Rep. [1877], Ck. Div. 850, Ckeavin vs. "Walker; Am. Trade-Mark Cases, 688, The Leather Cloth Co. vs. The American Leather Cloth Co.
    Fifth — Even if a lawful trade-mark, its protection is forfeited by misuse, e. g., by selling goods not manufactured exclusively by plaintiff for plaintiff by the Standard Oil Company; by selling as Insurance Oil, oils manufactured by and for other persons; and by doing so knowingly and repeatedly, — this on the principle that plaintiff must come into the Equity Court with clean hands, and the aid of the Court will not be given to assist in perpetrating a fraud on the public. Browne on Trade-Marks, sections 327, 374 ; CoddiDgton’a Dig., Sec. 530 to 572; Am. Trade-Mark Cases, 180; Pidding vs. How, Ibid, 640; Perry vs. Truefitt, Ibid, 644.
    Sixth — A Court of Equity will not protect the exclusive use of a trade-mark, to enable a party to sell an ordinary article'of commerce at a much higher price than the regular market rate of the same article, to a public so induced to pay such rate by the mistaken belief that the article is patented or has some peculiarly <md special valuable qualities.
   The opinion of the Court was delivered by

Fenner, J.

The evidence establishes that, prior to 1873, most of the illuminating oils produced from petroleum, then in the market, were of low fire-test, and consequently inflammable, and also generated vapors which, in certain combinations with atmospheric air, liable to take place, became explosive and frequently caused destruction to life and property. Other oils, then in use, not inflammable or explosive, were deficient in illuminating or other qualities requisite to fit them for domestic use in ordinary lamps.

There existed an urgent public demand for an illuminating oil of this character, combining, with perfect safety, the other necessary qualities for family use.

With the view of supplying this demand, plaintiff instituted negotiations with certain oil refiners in Cleveland, Ohio, for the purpose of securing the production of an illuminating oil, having certain desiderated qualities as to color, specific gravity, flashing point, and fire-test.

Plaintiff succeeded, in 1873, in procuring an oil, manufactured for it and under its orders, possessing the required qualities, which, after examination, secured the public approval and recommendation of the Board of Health of this State and of the insurance companies of New Orleans and of other cities. To this oil plaintiff gave the name “Insurance Oil,” and adopted that name as its “ trade-mark,” under which it sold this particular oil, to distinguish it, not only from other different oils, but also from all oils sold by others than itself. Application was made, under the act of Congress, to the IT. S. Patent Office for the registry of this trade-mark and, after due examination, the Commissioner made the registry and issued the certificate. Plaintiff had made, and used, a stencil-plate containing the words: “ Trade-mark Insurance Oil, Pat. Jan. 5, 1875,” cut in letters of peculiar form and character and accompanied with certain distinctive scroll-work, with which it branded the packages containing this oil and sold by it.

Owing to the character of the oil and aided by active and expensive canvassing and advertising, plaintiff succeeded in establishing an extensive trade in this and contiguous States, profitable to itself and advantageous to the public — -the evidence showing that no accident has ever occurred from the use of this “ insurance oil.”

The defendant, a rival dealer in oils in this city, after the reputation of plaintiff’s oil had been thus established, commenced putting up and selling oils dealt in by him, as “Insurance Oil,” and had made a stencil-plate, the facsimile of that used by plaintiff, with which he caused his own packages to be branded and put upon the market.

Plaintiff brought the present suit to restrain, by injunction, the infringement of its trade-mark and to recover damages.

The defenses, interposed by exceptions and answer, are manifold, and will be considered in order.

1st. It was excepted that the plaintiff corporation did not, in its petition, appear by its proper officer, as required by law. The petition was in the na,me of the corporation without the designation of any officer. The exception was cumulated with the merits, and, on trial, it was proved that the action had been brought by the President with the approval of the Board of Directors. This cures the defect.

2nd. The objection raised to the validity of plaintiff’s act of incorporation, was not properly presented by the pleadings, and was waived by the express admission found in the record, viz.: “ It is admitted that the company is legally incorporated, and its name is the Insurance Oil Tank Company.”

The further objection that plaintiff is violating the law by carrying on a mercantile business, is not presented by the pleadings, nor was it considered in the lower court. It does not properly arise in this case. The sole question involved is plaintiff’s right to protection in the exclusive use of its trade-mark. Á corporation is entitled to have its trademark as well as a private individual, and may sue for its infringement. Defendant cannot justify his wrongful act, by accusing the plaintiff of violating some general law of the State, not affecting plaintiff’s right to have a trade-mark, but on a different subject. We express no opinion as to the legality of plaintiff’s business, in support of which much might, however, be said. We simply overrule the objection, because (1st) not presented by the pleadings, (2d) not relevant to the issues in this case, (3d) as being a question which defendant is without interest to raise.

3d. Defendant urges that the use of the abbreviation “ Pat.,” meaning patented, in the trade-mark, is a fraud on the public and a violation of law, which deprives plaintiff of the right to redress.

It is undoubtedly true that the affixing of the word “ patent” to an unpatented article, “ for the purpose of deceiving the public,” is prohibited, under penalties, by the laws of the United States. U. S. R. S. §4901; and that a representation in a trade-mark that an unpatented article is protected by a patent “ prima facie amounts to a misrepresentation of an important fact, which would disentitle the owner of the mark to relief in a court of equity, as against a pirate/’ Browne on Trade-Marks, § 572; Coddington’s Dig. Tr. M. Cases, § 548; 39 Conn. 450.

But, to have such effect, the use of the word “ patented ” must be “with the purpose of deceiving the public,” and if such fraudulent intention does not exist, and the use of the word may be explained in any reasonable sense consistent with truth and honesty, the party will not be prejudiced. ' High on Injunctions, § 674; Ooddington’s Dig. § 570, 571.

The plaintiff avers that the use of the word “ patented” in its label or brand was intended to refer, not to the article, Insurance Oil, but to the word Trade-mark placed on the top of the label. Had the words “Begistered in Patent Office” been used, no question could have arisen; but the use of the word patented, as applied to a trade-mark so registered, is so common; that we are referred to an example where so learned a jurist as Judge Oooley uses the language: “In the United States, trademarks may be patented, etc.” Oooley on Torts, p. 361, note. Under such circumstances, we consider the explanation of plaintiff as sufficient to maintain its honesty of intention.

. 4th. Objection is made that the words “ Insurance Oil ” are not a legal trade-mark, because the word “ insurance ” merely denotes the description or quality of the article, without, in any manner, indicating origin or ownership.

The law on this subject is tersely expounded by Judge Oooley: “In general, a man may adopt for a trade-mark whatever he chooses; but when he asserts, and seeks to enforce, exclusive right therein, it becomes-necessary to ascertain whether it is just to others that this be permitted. If the name, device or designation is purely arbitrary or fanciful, and has been first brought into use by him, his right to the exclusive use of it is unquestionable. But the mere designation of a quality, as ‘ nourishing’ applied to an article of drink, cannot be appropriated as a trademark; neither can any general description, by words in common use, of a kind of article, or of its nature or qualities.” The defendant contends that the trade-mark is defective, (1st) because the word insurance as applied to an illuminating oil, merely denotes the quality of safety, and may, therefore, be used by a vendor of any safe oil; (2d) that it indicates that the oil has been approved by insurance companies, and so may be employed as applicable to any oil having such approval. The learned judge of the court a qua sustained the defendant on these points and rejected plaintiff’s demand.

We cannot agree with our brother of the District Court. While the word insurance may, by some process of association of ideas, suggest the notion of safety, it is not synonymous with safe, nor can it be said to describe any possible quality of oil. The word is a noun substantive» not grammatically applicable to the description of the qualities of things. The dictionary furnishes several examples of its use as part of compound words, such as insurance-broker, insurance-clerk, insurance-company, insurance-office, insurance-policy — -all of which have well-understood-meanings; but insurance-oil is, in itself, meaningless, co’nveying no rational idea, any more than would the words, insurance-house, or insurance-tree.

Equally untenable is the idea that these words signify that the oil has been recommended by insurance-companies. That the selection of this name was suggested by the fact that it had received such approval, is admitted; but thatothe words express such a fact cannot be maintained.

We are strengthened in our conclusion by the decision of the Commissioner of patents in admitting this trade-mark to registry. The authorities of the patent office,- from long experience, are' familiar with the law of trade-marks, and their decisions, though not conclusive, are -entitled to great consideration by courts in the determination of such questions.

5th. It is urged that the trade-mark is detective because not indicating the origin or ownership of the article.

- There are authorities holding that it is essential to the validity of a trade-mark that it should indicate the name or address of the manufacturer or seller of the articles, in such manner as to distinguish them as the goods .made or sold by the parties claiming the benefit thereof.

We consider, however, that the latest and best authorities establish that such particular designation is not essential; but that when a particular form of words or device, otherwise valid as a trade-mark, has been first employed by a particular maker or seller, and has been used by him upon his goods, so long and so exclusively as to have acquired, by association, an understood reference to such maker or seller as the originator or seller of articles so marked — this will be a sufficient compliance with the law, and will entitle the party to protection.

Browne, Trade-Marks, §§ 150, 151; Charter Oak Case, 44 Mo. 173; 57 Barb. 526; 35 Cohn. 402; 13 Wall. 322; 101 U. S. 620; 3 Keyes, 594.

The evidence brings the case of plaintiff within the principle of these authorities.

6th. The objection that the oil is not directly manufactured by plaintiff, but only manufactured by others under plaintiff’s orders and directions, is of no force. The authorities are clear that, in such case, the seller is as much entitled to protection in his trade-mark as if he were the manufacturer. The ground of relief is stated by the Supreme Court of the United States to be that “ complainant has a valuable interest in the good will of his trade or business, and having adopted- a particular label, sign, or trade-mark indicating to his customers that the article bearing it is made or sold by him or by his authority, he is entitled to protection against one who attempts to deprive him of his trade or customers, by using such label, signs, or trade-mark without his knowledge or consent.” ,

McLean vs. Flemming, 6 Otto, 252; Citing 2 Sandf. N. Y., Ch. 586; 2 Barbour, N. Y., Ch. 101; Wolfe vs. Barnett, 24 An. 97; Amoskeag vs. Spear, 2 Sandf. Sup. Ct. 599; Colladay vs. Baird, 4 Phila. 139; Browne on T. M. § 35.

7th. Attack is made upon plaintiffs right to equitable protection upon the ground that it has debauched its own trade-mark by selling thereunder, as insurance oil, oils which were not such. The occasional instances of such sales established by the testimony, are not sufficient, under any authority to which we have been referred, to maintain such forfeiture.

It is true that, on a few occasions, when by detention of its shipments, plaintiff has run short of insurance oil, it has temporarily supplied the trade, with different oil under that name; but the instances are few and the amount so sold inconsiderable, and care has been taken that the substituted article should equal the genuine, in safety, if not in all other qualities. We think this conduct, though reprehensible, was not carried to such extent as to destroy the value of the trade-mark or to deprive plaintiff of his right to protection.

In conclusion, we consider that the interest of the public, which is an important motive for the protection of trade-marks, is peculiarly involved in a case of this character. If,fas the record establishes, the plaintiff has so conducted its business as to~inspire the public with confidence that the insurance oil manufactured for, and sold by it under its trade-mark, is not only useful and convenient, but also absolutely safe, for use for illuminating purposes, and, thereby, to secure'a large and valuable trade based on such confidence — we think both the plaintiff and the public are entitled to protection in their mutual relations of confidence on the one hand and patronage on the other.

It may be, as contended by defendant, that the oil sold by him under plaintiffs trade-mark is equal, in all respects, to the oil of plaintiff. But, if defendant may use this mark, other less conscientious dealers may employ it for inferior and dangerous oils; and the public would thereby be deprived of the security now enjoyed in the purchase of oil so marked, and the business of plaintiff would be destroyed.

Defendant has no right, in justice or law, to trade upon the reputation and business sagacity and enterprise of plaintiff, which are represented by and embodied in its trade-mark.

We find in the record no sufficient proof upon which to base any estimate of damages.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is now adjudged and decreed that the original inj unction herein issued be reinstated and made perpetual, and that plaintiff’s demand in damages be dismissed as in case of nonsuit, defendant and appellee to pay costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8270.
    The State of Louisiana ex rel. Morgan’s Louisiana & Texas Railroad & Steamship Company vs. the Judge of the Twenty-sixth Judicial District Court et al.
    Under tlie provisions of the Relator’s Charter, as -¡veil as of the Code of Practice, this Corporation can he sued for trespass, out of its domicil and in the Parish in -which the trespass lias taken place.
    Tlie word trespass, used in the Charter of the Company, was employed by the Legislature in its broadest sense, so as to comprehend a variety of wrongs, whether direct or indirect, in which force was used, and not in the technical sense of the Common Law term.
    The legal distinction between trespass and trespass on the case cannot be made in the premises.
    The Company may be sued for damages for the killing of a mule, in any Parish in which the act was done.
    APPLICATION for writ of Prohibition.

      Hahn, Judge, Respondent.

      Leovy & Kruttschnitt for the Relator :
    Eirst — The single point under discussion in this suit is to determine the particular class of acts which our law intended to denote by the term “ trespass.”

    Second — The term “ trespass'' is derived from the Common Law of England: it must then be taken in some one of the meanings it had in that system. R. C. C. Art. 15.
    Third — In the Common Law the term “ trespass” was applied to throe distinct classes of acts: a. All violations whatsoever of legal duty, causing pecuniary damage; 5. Those acts of violent injury to person or property, the appropriate remedy for which was by an action of trespass vi et armis ; c. Unlawful encroachments upon or injuries to real estate.
    Eourth — It is certain that our law does not use the term trespass ” in the wide sense it had in the Common Law as a general name for all infraction whatsoever of legal duty; Montgomery vs. La. Levee Go. 30 An. 607; Construction of lemguage of Art 165, § 9, Code of Practice.

    Eifth — The term “ trespass ” must, then, have been adopted to designate either that class of violent wrongs which were redressed by the action of trespass vi et armis, or that class of wrongs which consisted in unlawful entries upon or injuries to real estate.
    Sixth — If the term “ trespass ” were taken in any other sense, it would not he taken in any defined sense that it had in the Common Law, and there would be no principle in that system, nor any certain meaning in its popular use, that would enable us to define the particular acts which should he designated as “ trespasses

    Seventh — Tlie term “ trespass " is an enactment which establishes an exception to a general principle of law: the enactment must be strictly construed and the terms in it taken in their narrower signification. Montgomery vs. La. Levee Co., 30 An. 607.
    Eighth — It has been shown in our first brief that the act-whicli was the subject of the suit in the lower court was not one of those acts on which trespass vi et armis lay at Common Law. See, also, 24 Conn. 40; Green's Pleading and Practice, § 86.
    L. Be Foorter, for the Respondents:
    Eirst — There are other exceptions to the general fule which require one to he sued before his. own judge, and these exceptions are in the different paragraphs of Article C. P. 165. By § 8, one can he sued outside of the parish of his domicil, “in actions of trespass on real estate, and in all matters relating to real servitudes,” etc. By § 9, “in all cases where-any corporation shall commit trespass, or do anything for which an action for damages lies,” etc.

      Second — And by section 12 of Act 37 of 1877 of Acts of General Assembly, page 42 of Acts-of 1877, “relator can be sued, in actions of trespass, in the parish in -which the trespass, has taken place.”
    Third — Act of 1855 page 485; R. S. sect. 725.
    Fourth— Gross negligence in the killing of respondents’ mule implies wilful injury, even if respondents were in fault, and the killing was a trespass.
    Fifth — Laws in pari materia should be construed together ; and so with the articles of the Codes, C. C. 17; and the common interpretation of Statutes which has existed for a length of time will be considered, as it generally is, the correct interpretation. “ Communiserror facit jus" 7A.1; 6 A. 496; 13 A. 329.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

The petitioner complains that a suit was brought against it for two-hundred dollars, with interest from judicial demand, before the Twenty-sixth Judicial District Court; that, under its charter, Act 37 of 1877, p. 37, its domicil is fixed in the City of New Orleans, add that it is thereby provided that it shall be sued only at its domicil, except in actions of trespass, when it may be sued in the parish in which the trespass has taken place, Sec. 12 of said Act; that an exception to the jurisdiction of the court was filed, the action not being one of trespass; that the exception was overruled, the case was tried, and judgment was rendered on the merits thereof for the plaintiff therein, and that, unless restrained, said court will proceed to execute the judgment.

The gravamen of the suit in question is, that the plaintiffs therein were damaged through the carelessness and negligence of the employees-of defendants, in charge of a locomotive and of a train of cars, whereby a mule, their property, was struck and killed. The return made by the defendants in this proceeding is, that the cause of action arose from a-trespass, over which the Twenty-sixth Judicial District Court has jurisdiction, as against the defendant, in the case, both under the charter of the company and under article 165 C. P. §§ 8 and 9.

The issue raised is, therefore, simply, whether the cause of action set forth was one of trespass or not. We cannot, of course, inquire into-the correctness of the judgment on the merits.

The petitioner admits that, but for the provision of its charter, the court would have had jurisdiction, under the provisions of the article-cited, which provides that “in all eases where any corporation shall commit trespass, or do any thing for which any action for damages lies, it shall be liable to be sued in the parish where such damage is done, or trespass committed.”

The theory upon which this application is based, seems to be that the provision of the charter of the company already mentioned is inconsistent with the article of the Code of Practice, and supersedes it* because it is the latest expression of the legislative will, and because it is a special, which-derogates from the general, law.

Assuming next, that the provision of the charter rules, the petitioner argues that the cause of action set forth is not one of trespass, but one of trespass on the case, and quotes numerous authorities in support of that position.

We do not consider the charter of the relator as a special law. It is a private statute, requiring plea and proof to be noticed judicially. In the present instance, its existence is established, not only by the sworn averments of the petition, but by the admissions of the defendants.

Even, were it otherwise, it would not be inconsistent with the general law, the main provision of which it reiteratés, without negativing any of its parts. Both the Code and the charter authorize a suit against a corporation in the parish in which it may commit a trespass. So far, then, harmony and not discordance prevails. The charter is silent as to the liability of the company, of being likewise sued, were it to “ do any thing for which an action for damages lies.” Hence, it is argued that the inclusion of the one is the exclusion of the other.

We do not so view the matter. We think that when the Legislature uttered the charter in question it did not intend to emancipate the company from the liability of being sued in the parish in which it would do acts for which actions for damages would lie. There exists no conflict between the charter and the Code. The word “ trespass ” used in the charter was employed in its broadest sense, so as to comprehend a variety ,of wrongs having the common element of a use of force, whether direct or indirect. Cooley on Torts, p. 436 et seq.; Hilliard on Torts, v. 2, p. 1, § 1; 3 Blackstone, 208; Greenleaf 2, p. 201.

“ One of the most valuable features of our system of jurisprudence5 is the simplicity with which parties are permitted to bring their rights before the tribunals of justice. The technicalities which, in other countries, embarrass and obstruct the progress of justice, are unknown to it. All it requires is that each party shall so state his grounds of attack and defense, that the adversary shall not be taken unawares, and that the judgment which may be rendered will enable him, for or against whom it has been given, to protect himself by the plea of res judicata.” 23 An. 676.

Oonceding that the case presented is one of trespass on the case, we consider that it comes wit-bin the purview of both the Code and the charter. Were it not so, there never would arise an instance, in which the defendant company could be sued at all for trespass, it being a fictitious, juridical being, which never could commit such, acting necessarily by the agency of others.

We cannot admit that the legislative use of common law térms has introduced in our system the practice in relation to them. 3 M. 186; 7 N. S. 164; 16 L. 389.

It is manifest that, if the company were to satisfy the judgment rendered against it and complained of, the claim in the case being for damages sustained in consequence of a trespass committed under its responsibility, such payment could be successfully pleaded in bar of another suit, for the same damages, if alleged to have resulted from a ' trespass on the case.

We think the District Court had jurisdiction, the cause of action set forth being One of trespass within the proper intendment of the charter of the relator.

It is, therefore, decreed that the preliminary restraining order herein made be rescinded, and that the application for a prohibition be refused with costs.

Behearing refused.


author: Levy, J.

text:
    No. 7908.
    The State of Louisiana, ex rel. C. E. Girardey, vs. The Southern Bank. The Bank of Commerce, Opponent.
    The Bank of Commerce sent to the Southern Bank for collection three checks on other banks in New Orleans. They were collected and the proceeds passed to the credit of the Bank of Commerce in its general account, as it had given no instructions for any special disposition of the money, but, on tbe contrary, drew against the proceeds of those checks, as an ordinary depositor. On the same day that the checks were collected, the assets of the Southern Bank were seized by the sheriff, and Receivers were appointed. The Bank of Commerce claims in this case the restitutio adinteqrum of the proceeds of its three checks. Held that this bank was an ordinary depositor of the Southern Bank; that the proceeds of the three checks were mixed with its general funds, and the Bank of Commerce is no more than an ordinary oreditor.
    APPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      T. Gilmore & Sons for the Bank of Commerce, Opponent and Appellant:
    First — The Bank of Commerce, of St. Louis, having remitted to the Southern Bank, of New Orleans, three checks, aggregating $21,000, to be applied with the balance of its account in paying a check drawn by the remitting bank upon the collecting bank of $35,000 : and the Southern Bank having collected^ the money on the checks* on the morning of its suspension, and after it had ceased, operations, but failed to apply the proceeds as advised, the remitting bank is entitled to the avails of the three checks in the hands of the liquidators. Succession of Do Boisblano, 32 An. p. 109, and other authorities*cited in the body of tnis brief.
    Second — The relation between tbe two banks was that of principal and agent, and not that of depositor and depositary.

      Third — When the agent mixes the funds of his principal with his own, so that they cannot be distinguished, the whole becomes trust property, and the demand of the principal upon the fund must be first satisfied.

      J. O. Nixon, K D. White and N. J. Bermudez, for the Beceivers, Appellees:
    Pirst — A judgment of homologation constitutes res adjudicata. 14 L. 241.
    Second — Where a check is collected by a monied institution, a restitutio in i/ntegrwn of the assets realized therefrom, when no instruction to set them apart to be used in a particular way has been given, is impossible, the money having been, the moment it was received, placed in the general fund of the bank. 2 Wall. 256, 257.
    Third — Where a party for whose benefit a check is collected by the bank to which it is given for collection, subsequently draws against the amount so realized, the relations existing between him and the bank are those of depositor and banker, and no other. 10 An. 342.
   The opinion of the Court was delivered by

Levy, J.

On the 18th of March, 1879, the Southern Bank was, by decree of the Fourth District Court of the parish of Orleans, dissolved and commissioners were appointed to liquidate its affairs. On June 17th, 1879, the liquidators filed an account, known as “ first provisional account,” showing assets of the bank to be distributed to its ordinary creditors, being balance on hand, difference between total of privileged charges and claims to be paid in full and cash on hand, to wit: balance of $55,708 70. Among these creditors, the Bank of Commerce of St. Louis appears on the schedule accompanying the account, for the sum of $34,668 20. To this “ first account ” a number of oppositions was filed, but none by the Bank of Commerce. On the 28th of June, 1879, this account, after being in some items amended, was homologated as far as not opposed, and the funds on hand, as per the account, ordered to be distributed accordingly. A second provisional account was filed on the 20th of November, 1879, showing another balance for distribution among the creditors named, in addition to amount remaining on hand, as per first account, of $83,829 94. To this second account, among others there was filed on November 27th, 1879, an opposition of the Bank of Commerce. This opposition was made to the accounts and tableaux, in which, after setting forth that the Southern Bank had, on the 17th of March, 1879, received three several checks on other banks of New Orleans', for collection for said Bank of Commerce, the opponent avers that, when these checks were thus received, the directors of the Southern Bank, in charge thereof, “ being aware of its insolvent condition, had determined upon the closing of said bank and the winding up of its affairs, and had passed a resolution transferring the drafts remitted to them for collection to the New Orleans Canal and Banking Company, and ought to have delivered said checks to the said Banking Company for collection, or returned them to petitioner;” that^ this was not done, but that, on the contrary, on the morning of the 18th of March, 1879, at or about the time -the sheriff took possession of the assets and property of said Southern Bank, under a writ of sequestration herein, the officers of said bank ■collected said checks, to the said amount of $21,000, belonging to peti-' tioner, which went into the hands of said sheriff and is now in the hands ■of the liquidators, and which they propose to distribute among .the creditors of said Southern Bank, as money belonging to said bank, whilst the .same is the property of petitioner. Petitioner prays that the liquidators be ordered to pay to him the said sum of $21,000, by preference and privilege over all the creditors of said bank.

During the trial, the Bank of Commerce filed an amendment to its ■original petition, as follows: “And now comes-the Bank of Commerce, of St. Louis, opponent herein, and to prevent any misapprehension as to the. relief which it seeks, by its opposition herein, prays that, before any distribution of funds belonging to said Southern Bank, be made by the -commissioners of liquidation of said bank, it be paid the said sum of twenty-one thousand dollars, as its own money and funds and not as the funds of said Southern Bank.”

The liquidators representing the Southern Bank excepted to the opposition of the Bank of Commerce on the grounds: 1st. That the judgment homologating the first account, so far as not opposed, which is now final, is res acljucliccita to the claim now made by said bank for the money -as theirs; 2d. That said account, as homologated, is an estoppel and prevents the bank from claiming an ownership.

There was judgment dismissing the opposition of the Bank of Commerce, thus refusing its claim to be recognized either as privileged creditor or as the owner of the proceeds of the checks referred to, $21,000. Erom this judgment the Bank of Commerce has taken this appeal-

The grounds upon which the Bank of Commerce relies in support of 'its claim are these: The Southern Bank (is alleged to have) collected the money on the checks on the morning of its suspension, and after it had ceased operations, but. failed to apply the proceeds as advised, and, ■ therefore, the remitting bank is entitled to the avails of the checks in ■ the hands of the liquidators.

“ The relation between the two banks was that of principal and agent, and not that of depositor and depositary.

When the agent mixes the funds of his principal with his own, so that they cannot be distinguished, the whole becomes trust property, . and the demand of the principal upon the fund must be first satisfied.

The defendant, Southern Bank, on the other hand, contends: That • the homologation of the first account, unopposed by the Bank of Commerce, in which said Bank of Commerce was recognized as an ordinary ■ creditor, constitutes res adjudicata and estops it from maintaining this proceeding; that, where a check is collected by a monied institution, a restitutio act integrum of the assets realized therefrom, when no instruction to set them apart to be used in a particular way, has been given, is impossible, the money, having been, the moment it was received, placed in the general fund of the bank.

Where a party for whose benefit a check is collected by a bank to which it is given for collection, subsequently draws against the amount so realized, the relations existing between him and the bank, are those of depositor and banker, and no other, or, in other words, of debtor and creditor.

Defendant also contends that the Bank of Commerce has entirely failed to identify any specific money as that with which the checks were paid.

The facts which control the decision of this case are substantially these: The Southern Bank had been doing business with the Bank of Commerce and, on the 17th of March, 1879, the former received three checks from the latter, amounting to $21,000, for collection. At that time, there was to the credit of the Bank of Commerce in the hands of the Southern Bank a balance on deposit account of about $13,000. On the morning of the 18th of March, these checks were collected by the runner of the bank, in the usual way, i. e. by striking balances with the banks upon which the checks were drawn, by deducting the amount of checks held by them on the Southern Bank, and receiving the balances. The balances thus collected by the runner were turned into the bank in gross and then became mixed and confounded with the other funds of the Southern Bank. It appears from the record, that these balances were received from the runner between ten and eleven o’clock on the morning of the 18th of March and that the sheriff, under the sequestration proceedings, took possession of the bank and its assets shortly after twelve o’clock on that morning. The Bank of Commerce had drawn a check on the Southern Bank for $35,000 (béing several hundred dollars in excess of the balance on deposit and the checks for $21,000), which was presented for payment shortly after nine o’clock on the morning of the 18th of March and left with the paying-teller on his suggestion. In the meantime the seizure having been made by the sheriff, on demand made, later in the morning, payment was refused.

On the checks being remitted for collection, no special instructions were given by the Bank of Commerce as to the disposition of their proceeds. The relations which had theretofore existed between the two banks, were those of banker and depositor; the check drawn for $35,000 had no particular identification with those remitted and received on the 17th March. The amount did not even correspond with the aggregate of the remitted checks and the balance in hands of Southern, Bank; indeed, it exceeded this aggregate. The business relation continued, so far as the record discloses, the same as had previously existed, and we can perceive nothing which changed the relations so far as even the $21,000 collected on the checks, were concerned; nothing to constitute the proceeds of the three cheeks a special deposit; nothing to take this transaction out of the rules governing the liabilities and responsibilities as to ordinary depositors in banks, or which takes it out of those general rules and subjects it to the operation of those in regard to principal and agent, or gives to the Southern Bank the character of cestui que trust.

“The relation of the depositor to the bank being that of a simple creditor, if the bank goes into insolvency the depositor has no right to any preference, but shall come in like any other creditor.” Morse on Banks and Banking, 45; 1 Paige, 249.

The record does not show that, on forwarding the cheeks for collection, the Bank of Oommerce instructed the Southern Bank to remit the proceeds; on the contrary, the Bank of Oommerce drew against those proceeds, as well as for other amounts, before the cheeks had been collected. 5 Biss, 515; 10 La. 342.

The admixtión of the proceeds of the checks with the other funds of the bank is established by the proof, and this admixtión took place before the seizure by the sheriff. Although the bank was embarrassed in its financial affairs, we cannot say, that its failure or going into liquidation took place anterior to its receipt, in the manner hereinbefore mentioned, of the proceeds of the checks.

In the case of Reeves vs. State Bank, 8 Ohio, 56, 465, it was held that a note deposited for collection, if passed to the credit of the depositor in his general account, becomes the property of the bank, which becomes indebted unto him for the proceeds. If the bank becomes bankrupt, the proceeds are assets available to the general creditors. This rule, in our opinion, is equally applicable to a check deposited for collection. In this case, it is clear that there was an account current between those two banks just as between any other depositor and the bank.

In Marine Bank vs. Fulton Bank, 2 Wallace, 252, it was decided that money collected by one bank for another, placed by the collecting bank with' the bulk of its ordinary banking funds and credited to the transmitting bank in account, becomes the money of the former. We think it would be. otherwise if, when the checks or note were transmitted for collection, there were instructions, either to remit their proceeds or to hold them for special deposit, or for some special purpose; but here there were no such instructions, and the drawing upon the Southern Bank for an amount which, it is true, included the amount of the proceeds of the checks, cannot be construed by us as giving a character to the transaction other than that attaching to a mere depositor and. banker, as described in the opinion in the case just cited.

There being no obligation resting upon the Southern Bank to keep the funds arising from these checks separate and apart from its other funds, and not even a fairly deducible intimation of such intention or desire on the part of the Bank of Commerce, no claim could be legally urged for the recovery of the identical funds collected, and the admixtión of these funds with the general funds of the collecting bank, having taken place in the usual course of business and justified by the character and relations of the parties, we cannot recognize any right in the Bank of Commerce to be paid by preference over other ordinary depositors, creditors of the Southern Bank. “ Where endorsed bills of exchange are deposited by a customer with a banker, the latter has the absolute power of disposing of them; and, in the event of his bankruptcy, though the ■customer might recover such bills, as remained in specie, subject to the banker’s lien for the balance of his account, yet he cannot follow the proceeds if they have been converted.” ’ Ewell’s Evans on Agency, 128.

We do not think the plea of res adjudicata well taken.

It is urged, however, that there was mala fides on the part of the 'Southern Bank in receiving the proceeds of these checks and mixing them with its general assets, as it was on the eve of failure and declared bankruptcy. This is not shown to our satisfaction. It is true, a seizure of its assets was made on the very day of the collection, but it is not shown that this was within the knowledge of the bank, and it is not unusual that such disasters come suddenty upon banks as well as individuals, who are disappointed in getting available means which they reasonably expected and which would avert the disaster, or that the failure of others on whom they rely, suddenly precipitates their own failure to meet their engagements and liabilities.

Appellant contends that “ when the agent mingles the funds of his principal with his own, so that they cannot be distinguished, the whole ’becomes trust property, and the demand of the principal upon the fund must be first satisfied.” This proposition is entitled to no weight and its discussion and consideration are unnecessary, because it is based upon the assumption that the relation of principal and agent existed, and we hold that, in this case, there was no such relation.

In regard to the time at which the runner and the bank itself received the proceeds of the checks, our opinion heretofore expressed is deduced from the testimony in the transcript, and we are further satisfied from the evidence and all the circumstances and facts therein, that payments -were made by the bank subsequent to the receipt by the bank of the funds collected by the runner.

We cannot perceive how the Bank of Commerce can, on legal principles, be entitled to any greater consideration, or have any preference to be paid over other depositors whose position, we think, is similar in legal right to its own, and, to the extent oí the losses sustained, equally unfortunate. It is entitled to no greater relief on account of its non-residence than the home creditors of the bankrupt depositary.

The judgment appealed from is affirmed with costs.

Rehearing refused.

The Chief Justice recuses himself, in this ease, having been of counsel.


author: Fenner, J.

text:
    No. 7205.
    Workingmen’s Bank vs. Geo. T. Converse et al.
    A private statute should be offered in evidence on the trial of a suit, and cannot he judicially noticed. Affirming Decision in 28 An. 415.
    A written act, purporting to be a transfer of all the rights of an association and signed by parties, who therein pretend to be the sole members of such association, will not enable the assignee to stand in judgment, in default of accompanying proof that the assignors were really members and sole members of tbe said association.
    APPEAL from the Eifth District Court for the parish of Orleans. Rogers, J.

      W. 8. Benedict and Jos. P. Hornor for Plaintiff and Appellant:
    First — On an allegation of ownership, any person or corporation may prove such allegation by any species of evidence not prohibited by law.
    Second — On a merger of a defacto, into a dejure corporation, all rights being transferred, the new company can judicially assert its claims in court.
    Third — When, in addition thereto, all the old stockholders approve, ratify and sanction such, action, a defendant sued, who cannot he injured, and has no defense, cannot be heard to question such right of transfer.

      Percy Roberts aud E. E. Mo’isa for Defendants and Appellees:
    First — That peremptory exceptions must stand or fall according to the facts as alleged in the petition. They cannot be affected by evidence subsequently introduced tending to alter, contradict, or modify the allegations of the petition.
    Second — Evidence to show a different source of title from the one declared on, is not admissible.
    Third — Evidence is not admissible to prove a ground of action not alleged. 2 ÜT. S. 358; 1 Da, 24; 9 L. 10*7 ; 4 It. 465 ; 5 An. 424: 9 An. 119; 14 An. 355; 22 An. 89 and 538.
    Fourth — Property owned in common by certain individuals does not become the property of a corporation subsequently formed by those individuals, in the absence of a specific assignment by them in favor ot the corporation. 5 Iowa, 366 ¡ 8 Pickering, 455.
    Fifth — An association of persons not a corporation cannot, as a corporation, convey property or rights which the persons of the association individually own.
   The opinion of the Court was delivered by

Fenner, J.

In the ease of Workingmen’s Accommodation Bank vs. ’ Geo. T. Converse et al, decided by this Court and reported in 29 An. 369, the then plaintiff, as a corporation, brought suit against the defendants as principal and surety on the bond of a defaulting .paying-teller. The Court there decided that the then plaintiff was not a corporation and could not maintain the suit as such, which was, therefore, dismissed, reserving the rights of the individual members of the association to sue, in their own names, on the bond.

The present plaintiff brings this action, on the same bond, against the same defendants, alleging that it had become the legal proprietor of the rights and claims arising upon said bond, by reason of a certain notarial act passed before Andrew Hero, Jr., notary, on January 13,1874, and by reason of its own incorporation by a legislative act passed on March 28th, 1874.

By express and proper pleadings the defendants put at issue (1st) the corporate capacity of the plaintiff, and (2d) its right to stand in judgment on the bond sued on.

It became necessary for plaintiff to establish, by affirmative proof, as an essential part of its case, both'its corporate capacity, and its right to sue on’the bond.

Counsel for defendants, in his oral argument, called our attention to the entire absence of evidence upon these essential points, and demanded the affirmance of the judgment.appealed from on that ground.

Neither the plaintiff’s charter nor the act before Hero, notary, were offered in evidence.

The charter of plaintiff, although a legislative act, is a private statute, which requires to be offered in evidence in order to have effect in judicial proceedings. Such was the express decision of this Court in the case of Mandère vs. N. O. Savings Institution, 28 An. 415, which is in harmony with sound jurisprudence. 1st Greenleaf on Ev.; Dwarris on Statutes.

There is thus no proof whatever of plaintiff’s corporate capacity, which would be sufficient to abate the'presenfc action.

There results an equal absence of evidence in support of the allegations of its petition touching its proprietorship of the claim sued on. This last defect was sought to be remedied by the offer of an act purporting to be signed by the members of the original association, after the institution of this suit, maintaining and confirming the right of the present plaintiff to stand in judgment. This act is signed by a number of persons, but is accompanied by no proof to show that the persons signing were really members of the original association, or that they were all of said members, or what proportion of said members they were.

It could, therefore, form no basis for a judgment in favor of plaintiff for the whole or any fixed proportion of the claim asserted by it under the bond.

The judgment appealed from was one of nonsuit, and, for these reasons, it is affirmed at appellant’s costs.


text:
    No. 6880.
    Mr. and Mrs. J. M. Conté vs. L. B. Cain et al.
    A subsequent mortgagee bas no interest in the question whether an antecedent mortgage was or not properly re-inscribed, when the property upon which said antecedent mortgage rested, was sold and the purchaser assumed the mortgage as part of the price of sale, and the act of sale was recorded before the alleged peremption of the said antecedent mortgage. The holder of such vendor’s privilege will necessarily outrank the subsequent mortgagee, whether the said assumed mortgage is oris not perempted.
    Plaintiff’s demand comes within the purview of the Revocatory action, to which, under the facts of the case, the prescription of one year applies.
    APPEAL from the Fifth District Court, parish of Orleans. Bogers, J.

      Geo. L. Bright for Plaintiffs and Appellants.

      J. McConnell for Defendants and Appellees:
    Eirst — Mortgages, "under the hypothecary system of Louisiana, may be given to secure debts having no legal existence at the date of the mortgage, and to secure loans to be obtained in the future on the faith of its security. C. C. 3292 (3259.)
    Such mortgage shall be realized, in so far as the promise shall be carried into effect, by the person making it. O. C. 3293 (3260.)
    Second — It is not essential in .such a mortgage, even with respect to third persons, that it should express on its face, that it was executed to secure future debts. 7 An. 297.
    Third— Such a mortgage may be described as a security for existing debts, and yet used to protect those which, in the contemplation of the parties, were to be created. 22 An. 285 ¡ 7 An. 297.
    Eourth — The action en decimation de simulation cannot properly or legally be joined, in the same petition, with the action for revocation of real but fraudulent contracts, as the allegations of reality, which are essential to support the latter, are inconsistent with, and contradictory of, those of unreality necessary to maintain the former. 24 An. 123, 125; 24 An. 35 ; 1 An. 133; 31 An. 863.
    Eifth — Subsequent mortgagees have the right to ascertain by action whether apparent contracts, made between their debtors and other persons, are real, or mere fraudulent simulations.
    Sixth — Subsequent mortgagees h'ave also a right, subject to the limitation which the law has préscribed, to an action for the avoidance of contracts, which) although they are real, were made in fraud of their rights as creditors.
    Seventh — Where property on which a mortgage exists is sold, and the purchaser assumes the payment of the mortgage note as apart of the purchase price, this stipulation gives to the holder of such mortgage note, irom the date of such assumption, the additional security of vendor’s privilege. 17 An. 255-257; 17 La. 67.
    Eighth — The object of pleading is to notify the adverse party of the nature of the claim or defense, that he may be prepared to rebut it, and not be surprised on the trial; and if the record discloses notice, previously brought home to the party, so that it was impossible for him to have been surprised, the lack of more full and explicit pleadings will not compel the rejection of pertinent evidence. 12 An. 796 ; 23 An. 675; 4 An. 534; 5 An. 531; ib. 673; 6 An. 531.
    Ninth — Where the validity of a mortgage is attacked by a subsequent .mortgagee, the party holding the mortgage thus attacked, must be permitted to show by evidence its real character and consideration. Where the plaintiff provokes the inquiry, he cannot object to its being pushed to the extent of finding out the real truth. 22 An. 286. '

      Tenth. — Where tlie evidence, as in this case, shows that the contract assailed is not a mere simulation, but, on the contrary, establishes it to be a real and veritable contract, the prescription ot one year applies to the action for its revocation. C. C. 1987 (1982), 1989 (1984), 1994 (1989); 24 An. 123; ib. 246; ib. 552 ; 7 An. 297; 6 An. 87; 6 B. 142; 31a, 29; 8 B. S. 675; 1 An. 133.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for the cancellation of mortgage inscriptions.

The plaintiff avers that she has obtained a judgment against Antonio Palacio for #9314 with interest, which was duly recorded on the 21st of June, 1875, in the mortgage office of this parish; that she issued execution under it and seized real estate belonging to the defendant; but that, owing to three inscriptions, made in said office, anterior to her own, apparently affecting the property to the extent of $53,000 with interest, etc., which by far exceeds the value of the real estate, she was and still is obstructed in the collection of her claim.

She charges that the first inscription made on the 16th February, 1866, of an act of mortgage executed by one Randall in favor of James McConnell, to secure $3000, was not renewed until the 16th of March, 1876, more than ten years afterwards; that the property then mortgaged was subsequently, viz: the 21st February, 1867, acquired by Palacio and forms part of the real estate seized as aforesaid; that the inscription within the ten years, viz: on the 27th of February, 1867, of the act of sale by Randall to Palacio, although it contained an assumption of the debt and a reversion of the mortgage in favor of McConnell, did not operate as a reinscription, and the original inscription of 1866 having perempted should be canceled. She charges that the second inscription of an act of mortgage, executed on the 8th of May, 1874, by Palacio, in favor of Jose San Roman for $25,000, with interest, etc., is a simulation, and should be erased from book 128, fol. 266. She charges that the third inscription of an act of mortgage executed on the 15th January, 1874, by Palacio, in favor of L. B. Cain, for $25,000, with interest, is a fraud, and should be canceled. She avers that McConnell claims to be the owner of the pretended notes secured by the $3000 mortgage; that L. B. Cain claims to represent the notes said to be secured by the $25,000 mortgage, last-mentioned. And she prays for a cancellation of all said inscriptions, five in number, and for a money judgment for damages sustained, in the shape of attorneys’ fees, etc.

Cain filed exceptions and an answer. His defence was adopted by his co-defendants. The exceptions were referred to the merits, to be disposed of therewith.

The exception filed by the defendants set up the prescription of one year to plaintiffs’ action, as, in character, revocatory of the mortgage of May 15th, 1874, by Palacio to Gain, said to have been made in fraud of plaintiffs’ rights and to her injury.

The lower court passed upon the merits and upon the exceptions simultaneously, and rendered judgment in favor of the defendants. The plaintiff appeals.

We propose to consider the charges made against the validity of the inscriptions, in the order in which they have been above chronologically announced.

I. The evidence shows that on 21st February, 1867, Randall sold the property mortgaged to James McConnell to Palacio who, as part of the purchase price, assumed payment of the notes and the reversion of the mortgage. The act by which this was done, was recorded in the mortgage office, on the 27th of February, 1867, the assumption and reversion being fully set forth in the registry; that is, within the ten years following the inscription of the act of mortgage by Randall to McConnell. The notes, together with the mortgage securing them, were afterwardstransferred by McConnell to Cain, who was a subsequent mortgage-creditor.

Plaintiff’s judgment against Palacio was recorded more than eight-years after this assumption and reversion, viz : on the 21st June, 1875.

It is indifferent to plaintiff, whether the act of mortgage in favor of McConnell was or not reinscribed within the ten years following its original inscription ; nay, whether it ever was recorded at all. It is-sufficient, in order to strip plaintiff of all interest to question the validity of the inscription and reinscription, that the debt of $3000 was assumed and made part of the purchase price, and that the act mentioning the same was properly recorded before the judgment was put on the mortgage books. That registry was notice to the world of the encumbrance existing on the property to secure the payment of the $3000 notes with vendor’s privilege.

Had plaintiff’s judgment been recorded previous to the registry of the assumption and sale, and had the original inscription not been seasonably and regularly renewed, a question quite different would be presented.

What is it to the plaintiff that part of the purchase price was a debt due to McConnell, or an original indebtedness to Randall, the vendor, arising directly and merely from the sale of the property to Palacio? 32 An. 283; 17 An. 255; 20 An. 385; 21 An. 521, 523; 12 R. 399; O. B. 47, fol. 190-5; R. C. C. 1890; 1902; 3249.

McConnell’s transfer and conventional subrogation was, at the time, unnecessary. Cain, himself a mortgage creditor, subsequent in rank, had an interest in paying, with an intention to purchase, that preferred debt and, by such payment or purchase, was subrogated of right, by operation of law, to McConnell’s titles to the claim and mortgage. R. C. C. 2161 (1) 9 An. 247; 20 An. 359; 31 An. 859.

As transferree and subrogee of McConnell, Cain, who had been receiving interest from Palacio from 1867 up to August 1875, does not rely so much on the original act of mortgage and inscription in 1866, as he does upon the sale by Randall to Palacio, as an independent act, whereby payment of the debt was assumed and secured by vendor’s privilege, on the property sold. It was lawful for Randall to make the stipulations in favor of McConnell, as the holder of the $3000 claim, as a condition of the sale. The moment they were accepted by McConnell they constituted a binding and irrevokable contract, -as to him, the terms of which enured to the benefit both of Randall and himself. R. C. C. 1890, 1902, 1903, 3249, 3271. 19 An. 125; 17 L. 66; 12 R. 279; 3 L. 112; 3 R. 216; 17 An. 256; 5 An. 225; 6 R. 407; 23 An. 757; 20 An. 223; 12 R. 399, 152; 5 M. 322; 5 R. 240; 6 R. 607; 5 An. 228. See, also, Scionneaux vs. Waguespack, 32 An. 283.

There can be no doubt that the inscription of the McConnell mortgage, made on February 27th, 1866, not .having been renewed until March 16th, 1876, has perempted ; but its peremption does not affect the security resulting from the act of sale by Randall to Palacio, on February 21st, 1867, recorded on the 27th following, for the payment of the purchase price, which, as a legal concomitant, was secured by vendor’s privilege, without the requirement of any stipulation at all. Adheret visceribus rei. R. C. C. 3249, 3271, 3251; 3 An. 600; 4 An. 313; 32 An. 822, 828; Troplong, Vte. II, No. 592, 596; Laurent Cours Elém. vol. 4, No. 400.

That principle springs into existence from the mere fact of a sale on credit and continues in force as long as the price remains due, contingent on proper registry to bind third parties. It extends, not only to such portion of the price as may be due to the vendor, but also to all other portions which may be represented by others and which form a consideration for the sale. They are all protected by law, with this distinction, however, that where part cf the price is a debt of the vendor, the creditor holding that debt would outrank the vendor; as for instance, where there are successive sales on which the price is due, wholly or in part, the first vendor is preferred to the second, the second to the third, and so throughout.

II. The second inscription,, charged with simulation, is proved to have been canceled at the time of the mortgage to Cain. The certificate annexed to the act shows the cancellation. It was not, therefore, a stumbling-block in the way of plaintiff.

III. The transactions between Palacio and Cain, which resulted in the issue of the notes of the former for $25,000, secured by the act of mortgage of May the 15th, 1874, which was duly recorded on the next day, took place nearly three years previous to the institution of this suit, which was brought on the 10th of April, 1877. Rlaintiff’s judgment was rendered on the 18th of June, 1875, more than one year after the mortgage in question was consented.

The action given by law to creditors to cause to be revoked, contracts made by their debtors in fraud of their rights, with a view to deprive them of their recourse against their property, and coming within the purview of the provisions of the Code on the subject, is limited to one year, from the time the creditor has obtained judgment against the debtor, and then only when his debt, or claim, accrued before the contract was formed. R. C. C. 1987,1989, 1994, 1993.

This suit was brought nearly three years after the date of the contract sought to be revoked. The exception of prescription of one year was well taken and properly sustained. 6 N. S.'675 ; 6 R. 142 ; 9 R. 275 ; 3 La. 29 ; 2 R. 277 ; 24 An. 123 ; 4 L. 260 ; 24 An. 246, 522 ; 8 La. 106 ; 4 R. 408, 438 ; 11 L. 424, 532 ; 2 An. 483, 659 ; 14 L. 308 ; 4 An. 65 ; 3 An. 248 ; 16 La. 103, 370 ; 6 An. 439 ; 19 La. 594; 7 An. 298 ; 12 An. 889.

This view of the case renders it unnecessary for us to consider the bill of exception taken by the plaintiff to the admission of the evidence introduced by the defendant under his answer, and which plaintiff claims should not have been received under the averments in the answer, which are charged as being fatally vague and indefinite.

Were plaintiffs exception sustained and the evidence rejected, and had the suit been brought in time on the charge of fraud, we would not hesitate to say, the burden being on plaintiff to establish the charge, that she has failed in her assaults.

We find no error in the judgment appealed from.

It is, therefore, affirmed with costs.


text:
    No. 8156.
    The State of Louisiana, ex rel. Emile Ecuyer, vs. E. A. Burke, State Treasurer.
    In a suit to compel the Treasurer of the State by Mandamus to stamp six bonds of the State of Louisiana, for $1000 each, reducing the interest thereon, under the provisions of the Ordinance of the Constitutional Convention of 1879, this Court has jurisdiction, because the amount in dispute is the interest on $6000, at the rate of two per cent per annum for five years, three per cent for fifteen years, and four per cent thereafter until the year 1914, making an aggregate sum of $6660.
    Act bTo 121 of 188U, Sec. 6, providing that “ * * * no bond shall be stamped until the said January coupon shall have been surrendered to the Treasurer or Agent,” is violative of the Constitutional Ordinance, in imposing additional requirements for the stamping off the bonds, and, to that extent, it is inoperative.
    The duty of the Treasurer to stamp said bonds, as required by the Ordinance, is purely ministerial, and he should be compelled by Mandamus to perform it.
    i PPEAL from the Civil District Court for the parish of Orleans. n_ Tissot, J.

      D. G. & L. L. Labatt and Ghs. 8. Bice for the Delator and Appellant:
    First — A mandamus will lie to enforce the performance of amere ministerial duty against the-State Treasurer. C. P., Art. —, and 2 Otto, McComb.
    Second — The State debt ordinance in the second article is not conditional on the creditor’s-acquiescence in the third article, and any legislation to produce that result is unconstitutional and void.
    Third — The refusal of the Treasurer to stamp the bonds at the reduced interest is based on an unconstitutional statute of the Legislature requiring surrender of the coupon due January 1,1880, without payment, which effectually violates the Federal Constitution, Art. 1, Sec. 10, by impairing the obligation of a contract.
    Fourth — The State judges are personally and officially bound to administer the Federal constitution as the “supreme law of the land.” 1 Wheaton, Hunter vs. Martin ; 1 Wh., 340.
    Fifth — -This proceeding by mandamus is in no sense a suit against the State, but, on the contrary, is authorized by the State to enforce her will, as expressed in the organic law, according to justice and equity.
    Sixth — The State is not presumed to have authorized its officer to resist obedience to her behests, based on an iniquitous condition in a statute, which amounts to confiscation, spoliation or repudiation, because she was powerless under her Federal relations to do so if' this were attempted.

      J. C JEgan, Attorney General, for the Despondent and Appellee :
    First — This Court has no jurisdiction in this case, as the amount involved is under one thousand dollars.
    Second — The State Treasurer is prohibited from stamping these bonds by Act Ho. 121 of 1880, unless the January coupons should be surrendered.
    Third — The relator cannot accept one portion of the debt ordinance and reject another.
   The opinion of the Court was delivered by

Levy, J.

The relator represents that he is the holder and owner of six bonds of $1000 each issued by the State of Louisiana, under authority of an act of the General Assembly of January 24,1874, No. 3, payable in 1914, with interest at seven per cent per annum, making $35,. due semi-annually, on 1st July and 1st January of each year from 1874;. that the payment of principal and interest is provided for by a levy of an annual tax, fixed and guaranteed by an amendment of the Constitution of 1868; that, by an ordinance passed by the Constitutional Convention of 1879, which was submitted to and adopted by the people, relator was entitled to present said bonds to the Treasurer of the State, for the purpose of reducing the interest as set forth therein, and it is made a mere ministerial duty of said Treasurer to stamp thereon the following words, to wit:

“Interest reduced to two per cent per annum from January 1,1880, three per cent per annum for fifteen years, and four per cent per annum thereafter.”

He alleges that he has presented said bonds and informed him of the acceptance of the terms and conditions in said ordinance, and required him to perform the duties imposed on him by law, which he refuses and neglects to perform, to relator’s injury and detriment and without warrant of law. He avers that the duty of said Treasurer is merely ministerial, and the law has lodged with him no discretion in the premises. He further alleges that he has a valid contract with the State, which is protected by the Federal Constitution, Art. 1, Sec. 10, and by the Constitution of the State of Louisiana, Arts. 155 and 110 of 1868, and that no law can be legally passed to impair its obligation. He prays for a mandamus to said State Treasurer, commanding him to perform said duties, and that the said mandamus be made peremptory, after due proceedings had. A provisional writ of mandamus was issued.

The Treasurer answers, that the law authorizing the stamping of the bonds of plaintiff makes it conditional on the bondholder’s surrendering his interest-coupons, due January 1st, 1880, and all the coupons falling due subsequently, and denies that relator has offered-to surrender these coupons. He alleges that he has no authority to stamp said bonds until said coupons have been delivered up as the law requires. He further alleges that the service required of him by plaintiff is not a ministerial duty, and that the judiciary has no control over the executive and co-ordinate branch of the State government except as regards purely ministerial duties of executive officers. He prays that the peremptory mandamus be refused, etc.

There was judgment of the lower court refusing the peremptory-mandamus prayed for, and relator has appealed.

- In his brief, defendant suggests that this Court is without jurisdiction as to the appeal, because the amount in dispute is the January coupons on six bonds of $1000 each, amounting to $210. We think this-objection is not well taken. In our opinion the amount in dispute is the interest on the bonds of $6000, at the rate of two per cent per annum for five years from January 1st, 1880, three per cent for fifteen years, and four per cent thereafter untd the year 1914, making an aggregate sum of $6660.

Delator's right to have the bonds stamped is given by ordinance of the Constitutional Convention of 1879, known as the " Debt Ordinance,” which was adopted by the voters of the State. This ordinance, so far as it relates to this case, is as follows:

Art. I. Be it ordained by the people of the State of Louisiana in Convention assembled, That the interest to be paid on the consolidated bonds of the State of Louisiana, be and is hereby fixed at two per centum per annum for five years, from the first of January, 1880, three per centum per annum for fifteen years, and four per centum per annum thereafter, payable semi-annually. * * * * *

Art. 2. The holders of the consolidated bonds may at any time present their bonds to the Treasurer of the State, or to an agent to be appointed by the Governor, — one in the City of New York and the other in the City of London, — and the said Treasurer or agent, as the case may be, shall indorse or stamp thereon the words “ interest reduced to two per cent per annum for five years from January 1st, 1880, three per cent per annum for fifteen years, and four per cent per annum thereafter;” provided, the holder or holders of said bonds may apply to the Treasurer for an exchange of bonds, as provided in the preceding article.

Art. 3. Be it further ordained, That the coupon of said consolidated . bonds falling due the first of. January, 1880, be and the same is hereby remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the State government.

The proviso in the second article refers to the right, of the holders of consolidated bonds to exchange them for other bonds to be issued at the rate of seventy-five cents on the dollar of bonds held and to be surrendered by such holders as fixed by first article, the said new issue to bear four per cent per annum interest, payable semi-annually.

The terms, conditions and requirements of this ordinance are plain, unmistakable and mandatory. In order to enable the holders of the bonds to avail themselves of the provisions of Art. 2, they “ may at any time present their bonds to the Treasurer of the State, and the said Treasurer shall indorse or stamp the words ” prescribed in the article. The ordinance, which by its adoption by the people, “ forms a part of the Constitution ” requires this andJnothiDg more. Sec. 6, Act No. 121, of 1880, reads: “ That any holder of said consolidated bond or bonds may at any time present his bond or bonds to the State Treasurer, or to either of said bond agents, and the said Treasurer or the said agent to whom presented, as the ease may be, shall stamp such consolidated bond with the stamp furnished him by the Governor, after first detaching from said bond the coupon which fell due on the first day of January, 1880. No bond shall be stamped until the said January coupon shall have been surrendered to the Treasurer or agent.”

We do not think the Legislature has the right either to enlarge or detract from the plain provisions and enactments of the Constitution. That instrument defines with precision what may be done by the bondholder, and what shall be done by the Treasurer, and, therefore, without a special grant of power, the Legislature can no more impose additional requirements in the matter, than it can by statute abrogate or repeal, or set at naught the expressed requirements.

The relator has the right to demand and the Treasurer has the duty imposed upon him to comply with the provisions of article two of the ordinance in the manner therein directed; and the requirement of the surrender of the coupon, as a condition precedent to the stamping of the bond, is violative of the Constitution itself, in conflict therewith, and the act 121, therefore, inoperative to that extent.

In his answer, defendant, alleges that, the service required of him by relator is not a ministerial duty, and that the judiciary has no control over the executive and co-ordinate branch of the government except as regards purely ministerial duties of executive officers. As regards the first proposition, we decide that the service required in this case is the performance of a purely ministerial duty, and this is too plain to require argument. As to the second proposition, it is elementary; but while fully recognizing the independence and all the rights of the co-ordinate branches of the government, it is only necessary to say that it is the province and duty of the judiciary, whenever the question is properly brought before it in judicial proceedings, to decide whether duties sought to be enforced at the hands of officers, are or are not ministerial, and that it is of the essence of the judiciary to adjudge such questions, as otherwise these officers would themselves by their own decision be judges of their legal and constitutional powers.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by said court, it is now ordered, adjudged and decreed that the mandamus prayed for be made peremptory and the same is perpetuated; appellee to pay the costs of both courts.


author: Poché, J.

text:
    No. 7828.
    John C. Weems, John S. Rainey, Subrogated, vs. The Delta Moss Company.
    An agent employed to solicit sales oi the goods of a manufacturer, with a monthly salary and a commission on all sales effected by him, is not a clerk within the meaning of the law, in respect to the privilege for the payment of salaries.
    A judgment, recognizing the privilege of a creditor, does not conclude other creditors in ak concurso and only makes a prima facie case against them.
    ’ The pledgee may have possession through a third person, chosen by him and the pledgor.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      J. O. Nixon, Jr., for Plaintiff and Appellant:
    First — Reicliard’s pledge is invalid "because there was no actual delivery. 17 L. 185-428; 18 L. 453 ; 6 A. 516 ; 19 A. 368 ; 26 A. 185 ; C. C. 3162.
    Second — He has no seizure because the description of the property is too vague to give any information as to what was seized.
    Third — He lost any privilege under his fi. fa. by the failure to obtain a copy within twenty-four hours. C. P. 642.
    Fourth — The privilege of defendant or a clerk is established by the judgment and concludes all parties 19 A. 143 ; 5 A. 401; 4 A. 135 ; 17 L. 205 ; 15 L. 59 ; 14 L. 459.
    Fifth — That privilege is superior to that of a seizing creditor. 1 R. 443.
    The validity and regularity of our fi. fa. canuot be attacked by Reichard who claims the proceeds of property sold under it. 2 A. 648; 3 A. 454 ; 16 A, 287; 21 A. 262-495; 22 A. 135 ; 23 A. 245 ; 24 A. 289-597 ; 28 A. 711; 29 A. 274.

      Leovy & Kruitschnitt for Defendant Reichard, Appellee :
    First — Defendant in rule is entitled to payment by preference over plaintiff in rule out of the fuud in the sheriff’s hands: (a) Because he was pledgee of the property sold to realize the fund. (6) Because, at the date of the sale, said property was held by the sheriff under a writ of fieri facias issued by said defendant in rule, and enjoying priority over the writ of plaintiff in rule.
    Second- — Plaintiff in rule is not entitled feo a clerk’s privilege on the fund in dispute for two reasons: (a) Because his judgment is not based upon a debt for salary as clerk. (&) Because the evidence of the alleged privilege was never recorded, as required by the laws in existence at the time when the rights of the various parties to the fund in dispute were fixed.
    Third — Under said laws, a judgment was not even prima facie proof, inter alios, of the existence of a privilege recognized by it, because the question of privilege vel non as between debtor and creditor was then an entirely different one from the same question as between conflicting creditors.
    Fourth — Under said laws, the question of privilege vel non, as between debtor and creditor, depended upon the nature of the debt; as between conflicting creditors it depended upon registry.
    Fifth — Plaintiff in rule claims that defendant in rule has no claim "under his fi. fa., because that fi. fa. was returned by the sheriff at its expiration, and because the clerk failed to send a copy to tho sheriff within twenty-four hours as required by C. P. 642. To this claim, defendant in rule answers: (a) The premises upon which it is based are not true.

      (b) Even if they be true, defendant’s rights are not affected, because the sale out of which the fund in dispute was"realized took place during the seventy days when the original writs of both plaintiff in rule and defendant in rule were in full force. The rights of all parties to the proceeds of sale were fixed by that sale, and the action of the sheriff, in demanding and obtaining a copy of the writ, was wholly unnecessary. Paul Pont Traité des Hypotbéques, p. 979, and numerous authorities cited. 13 An. 559; 8 An. 505 ; 32 An. 352.
    (c) The return of a fi. fa. upon its return day, does not operate a release of any seizure thereunder, unless the seizure be released by order of the party in whose favor it was made, or by order of court. 24 An. 164; R. S. 3416.
   The opinion of the Court was delivered by

Poché, J.

In execution of a judgment in favor of plaintiff, all the property belonging to the Delta Moss Company, an insolvent corporation, was sold and realized the sum of $ 1465.

Plaintiff’s claim to be paid from said proceeds the full amount of his judgment of $156 is resisted by Augustus Reichard, another judgment creditor of the same defendant for $1500, who claims a preference over the proceeds, by reason of a pledge made to him by the defendant, of all the property, subsequently seized and sold, and by further reason of a priority of seizure of said property under a writ issued on his judgment, which writ had been enjoined by third parties, who had intervened in his suit for the purpose of arresting the execution of his judgment.

A. Mereier, the owner of the land on which the defendant’s factory had been erected and on which the property seized was situated, also intervened, and set up the lessor’s privilege for an unpaid balance of rent ■of $75.

The judgment of the lower court distributed the proceeds as follows:

1st. Allowing to A. Mereier, under the lessor’s privilege, seventy-five ■dollars.

2d. Allowing to plaintiff the sum of sixty-eight dollars, realized by property seized under his writ only, and hot covered by Reichard’s ■seizure.

3d. Allowing the balance to Augustus Eeichard under his judgment -and pledge.

Plaintiff appeals and urges the reversal of the judgment on several .grounds, which we shall consider seriatim:

1st. He relies on his judgment, which recognized his privilege on the defendant’s property for the unpaid balance of his wages as clerk in the ■employ of the company, and contends that this judgment concludes all parties. The authorities which he quotes in support of this position, contain nothing more than the recognition of a familiar principle, under which such a judgment in the case of a concursus, is prima facie evidence in favor of the party holding it, and throws the burden of proof on the party contesting the validity and binding force of the judgment.

The privilege claimed by plaintiff, when tested by his own admission and by an extract from defendant’s books, cannot be recognized by us, and was properly enjoined by the District Judge.

We find from that evidence that plaintiff was employed by defendant as a salesman, or agent to solicit sales of its moss, and that his compensation was a monthly salary of fifty dollars, and a commission on all ■sales effected by him, and that he was not a clerk within the meaning of ■the law, which secures by privilege the payment of the wages of that class of employees.

It follows, therefore, that the presumption of a privilege in his favor, as clerk, flowing from his judgment, is fully met and overcome by the evidence, and that he had no privileges as such on defendant’s property.

He urges in the second place that Eeichard had no privilege under the pledge which he set up, for want of delivery to him of the things -.pledged, as required by Art. 3162 of our Code.

The act of pledge, which was under the authentic form, recites that the property of the Moss Company, consisting of a building or factory, and numerous movable effects, fully enumerated, were putin the possession of Reichard by the president of the company, thereto fully authorized, and that by common consent, the property was placed in the possession of one G. D. Luce, who was constituted as the agent of Reichard, which trust was formally accepted by said Luce, who intervened in the act for such purpose.

It further appears that subsequently, this trustee having abandoned his position, the President and Reichard, - after making a second list of the things pledged, selected another party, as the keeper or custodian of the property, and that the possession of the latter continued until the seizure of the property by the sheriff. Under the provision of Art. 3162, which allows the possession of the pledgeerto be vested in a third person, agreed upon by the parties, we find that these transactions show such a possession in the pledgee as the law requires, even under a vigorous construction of its provisions.

The objection that the two custodians of the property pledged were employees of the company, has no force, and cannot destroy the effect of the delivery made to Reichard.

By its own act the company had lost the custody and control of its property, and any attempt on its part to dispose of the property thus pledged, to the prejudice of the act of pledge, could have been successfully and legally resisted by Reichard, the pledgee. Conger, Executor, vs. City of New Orleans, 32 An. 1250.

The pledge of Reichard was, therefore, properly recognized and enforced by the lower court.

We find no error in the judgment appealed from, and itis, therefore, affirmed with costs.


text:
    No. 7201.
    The Citizens’ Bank of Louisiana vs. L. Grand, and Glover & Odendahl.
    This Is a suit against the payees of two cheeks, in the body of which it was declared by the maker, that they were given in payment of corn bought from said payees and that the money to be paid by the bank was. an advance on exchange sold to it. Held that the payees of the checks were not privy to the declarations contained therein and were not bound by them.
    APPEAL from the Sixth District Court for the parish of Orleans, Bightor, J.

      Armand Pitot for Plaintiff and Appellant:
    First — Parties to a check for advances on a contract mentioned in the body of the check, commit themselves by tbeir signatures on the check, and cannot afterwards contradict the conditions forming the basis of the advance made, in order to exonerate themselves of the misapplication of the money to a contract different from that mentioned in the check.
    Second — The endorser of a check to his own order, upon which advances are made for his own benefit, cannot avoid his responsibility by saying that he did not read the check. The legal presumption is to the contrary.
    Third — The testimony of a party interested cannot he admitted by the Court to contradict the* written conditions certified by his signature.
    ¡Fourth — The testimony of a party interested cannot, even when it does not contradict written evidence, outweigh the testimony of two disinterested persons? a fortioH when 'the testimony of said disinterested witnesses is corroborated by the contract signed by the party interested.

      Miller, Finney & Miller on the same side.

      Singleton & Browne for Defendants and Appellees:
    ¡First — That L. Grand was a necessary party to this suit, and, in his absence, as a party, the judgment of the lower court must be confirmed.
    Second — The writ of sequestration should he set aside, because tbe security on the sequestration bond was not good and solvent, which is a condition precedent. And because plaintiff had no lien on the corn, sold by Glover & Odendahl to Grand. 17 La. 437 ? 2 An. 415 j 4 An. 425? 12 An. 41? 33 An. 52? 9 Bob. 476? B. C. C. 2162.
    Third — We have shown that the checks sued on impose no contract upon Glover & Odendahl' towards the bank. That the checks, so far as Glover & Odendahl are concerned, contains, a statement that L. Grand had purchased from them corn generally, and that they were' drawn to pay the balance of the price, the correctness of which is admitted by both the hank and L. Grand.
    ¡Fourth — That if the hank intended to make Glover & Odendahl liable on L. Grand’s contracts with the bank, it wás as security, and this cannot be done, because the checks are vague and unintelligible and do not clearly define any contract or contracts existing between L» Grand and the bank. “ Suretyship cannot he presumed? it ought to be expressed, and is to be restrained within the limits intended by the contract.” B. O. C. 3039.
    ¡Fifth — There is no written evidence to establish a contract on the part of Glover & Odendahl, to make themselves liable for the obligations of L. Grand? and hence, they cannot be made liable for Grand’s contract or contracts with the hank. B. C. C. £278.
    Sixth — The hank intended by tbe checks to make Glover & Odendahl (without interest or remuneration) perform duties which belonged only to the officers of the 'bank, which ia unusual and unjust, and should not be enforced by this Court. 6 An. 611.
   The opinion of the Court was delivered by

Levy, J.

The Citizens’ Bank of Louisiana brought suit against L. Grand, drawer, and Glover & Odendahl, payees and endorsers of two checks, one for $10,000, dated June 2d, 1877, and the other for $5000, dated June 4th, 1877, which checks (with the difference in date and amounts) read as follows: *

“ New Orleans, June 2d, 1877.
“The Cashier of the Citizens’ Bank of Louisiana will please pay Messrs. Glover & Odendahl or order, ten thousand -fife dollars, in part payment of corn bought from them, the same being an advance on exchange, for 40,000 bus. of corn, sold to your bank.”
“The bill of exchange to be furnished complete within five days from date of sale.”
“ $10,000.’ . (Signed) L. Grand.
“(Endorsed and signed) Glover & Odendahl,
per N. E. Bailey.”

Plaintiff seeks judgment against all said defendants in solido for the amount of these two drafts, on the ground that these cheeks were given for exchange to be delivered to them as stipulated in the checks, this exchange being for corn sold by Glover & Odendahl to Grand, to the extent of á0,000 bushels, and that the corn was other than that which had been sold to Grand, shipped on the vessel “Arno”; that Glover & Odendahl, knowing that the exchange thus to be furnished was given for payment of other corn (on which the bank would have a vendor’s lien), applied these checks to the payment of the corn shipped on the Arno, and by endorsing the checks, bound themselves to apply their proceeds as the bank and Grand had contracted in the check. The defendant Grand, although duly cited, filed no answer and put in no appearance in the suit; and no proceedings beyond citation appear to have been had against him.

The defendants, Glover & Odendahl, admitted the receipt of the two checks and the collection of the amount thereof from plaintiffs. They aver that the two checks were given to them »by Grand, in payment of about thirty-one thousand bushels of corn, sold to him by them, and shipped and placed on board the bark Arno and delivered to Grand, after the corn had been laden on board the said bark by these defendants in their own names and for their own account. They denied that at the time said checks were delivered to them, in part payment of the corn laden on said bark or since, they had in their possession or under their control, any corn or other property belonging to said Grand, in whole or in part, in which he (Grand) was interested, either directly or indirectly; they aver that the corn shipped by them on board the bark Alpha and the steamer Yanguard belongs to them, and Grand never had any interest in the same, and the same had never in whole or in part been delivered to said Grand, and the plaintiff well knew this fact, because the plaintiff had been previously so informed in answer to a direct interrogatory propounded by its clerk or agent to these defendants; that, the corn for which said checks were given in part payment of the price thereof, was the corn shipped on the bark Arno as above stated. They reserved the right to sue the plaintiff in a separate action for damages caused them by the illegal seizure of the corn shipped by them on the Alpha and Yanguard, under the attachment and sequestration issued herein, at plaintiff’s suit.

We think the action of the lower court in allowing the substitute of a solvent for an insolvent surety on the sequestration bond is sustained by the authorities relied on by him in his reasons for discharging the rule to dissolve the writ of sequestration.

We can perceive no grounds on which plaintiff’s claim against Glover & Odendahl can be maintained. There is nothing on the face of the checks, nothing in the statements, or so-called stipulations therein, which connect them with any contract or agreement with Grand, that these checks were to be applied to the payment of corn sold, delivered or to be shipped on any particular ship, or which goes to show that'Glover & Odendahl knew anything of Grand’s transactions with the bank in regard to bills of exchange previously purchased by the bank and drawn against the shipment on the Arno. Odendahl testifies positively that these checks were received by his firm “ in part payment of the price of the corn shipped on the bark Arno.’’ In point of fact, the testimony shows that they had sold or delivered, or shipped no com on the Alpha or Yanguard to, or for account of Grand. We are at a loss to perceive how the liability sought to be imposed on Glover & Odendahl can, under all the facts of this ease and by application of any legal rules or principles, attach to them. The clause in regard to the furnishing the bill of exchange has, we think, been properly construed by counsel of defendants in their brief, as referring and applying to the understanding between Grand and the bank, and as being a “reference to the exchange and nothing more than a postscript or memorandum for the information or instruction of the bank.” The bank seem to have put this construction upon it, or if they regarded the furnishing of the exchange as a condition precedent or necessary to be complied with, why did they pay the'check before it had been done?

We find no error in the judgment appealed from, and it is, therefore, affirmed with costs.