source: Caselaw Access Project

author: Fenner, J. Breaux, J.

license: Public Domain

text:
    No. 10,942.
    Leon Godchaux vs. Emile Bauman.
    Sections 2156 and 2168 of the Revised Statutes, so far as they apply to the fixing of causes in this court, together with all other statutes on the same subject matter, were repealed by Act No. 70 of 1884; but considering that suits to recover possession of leased premises are entitled to speedy trial, in the exercise of the discretion vested in this court, the order to fix by preference after three days* notice is granted.
    The proceedings to eject a tenant are summary. At the expiration of the lease the statute provides fifteen days’ notice to the tenant to remove.
    ¿Upon his failure to comply, suit may be brought and the defendant notified by .citation to appear and defend after three days.
    The jurisdiction must be tested by the pecuniary amount in dispute, as shown by the pleadings, and as appearing from the nature of the action.

      It may be shown on the trial (i£ admissible by the nature of the action) that the amount involved is within the court’s jurisdiction.
    Plaintiff had the right to ejectment proceedings against the tenants of his property after fifteen days’ notice upon the expiration of the lease.
    Np plea of tacit renewal for another month haying been presented the lease will not be presumed to have been continued or tacitly renewed (recondueted).
    APPEAL from the Civil District Court for the Parish of Orleans-Ellis, J. _

      Buck, Dinkelspiel & Hart and F. J. Dreyfous for Plaintiff andAppellee.

      F. Miohinard for Defendant and Appellant.
   On Application to Fix Cause.

The opinion of the court was delivered by

Fenner, J.

This is a suit by a landlord to recover possession of leased premises, and an application is made to fix the same by-preference after three days’ notice under the provisions of Sections-2156 and 2163 of the Revised Statutes.

These sections of the Revised Statutes, together with all the other-statutes regulating the order of trial of appeals in this court, were repealed, so far as they apply to appeals in this court, by Act No. 70 ot 1884, which vests this court with full authority “to regulate the trial of causes before it, and to change existing rules, as, in their-opinion, may be deemed advisable for a better administration of justice,” which repeals “ all laws on this subject matter and all laws in conflict herewith. ”

In the exercise, however, of the discretion thus vested in us,, we consider the policy of the law and the better administration of justice require a speedy trial of causes such as this, and, on that ground, the order prayed for is granted.

On the Merits.

Breaux, J.

The plaintiff claims from the defendant possession of the premises No. 91 Canal street.

He bought the property on the 25th of June, 1891, and alleges-that at the time the defendant claimed to be a lessee of the property under verbal lease from plaintiff’s author. He alleged a second' lease, which expired on the 8th of October, 1891, and that he gave notice to the defendant lessee to remove from the leased premises within fifteen days.

The time having elapsed, suit was brought, anS the defendant was cited to answer the petition within three days in compliance with the judge’s order.

The defendant filed an exception to the order of the court requiring him to answer within three days, and fixing the same for trial on the 2d of November, 1891.

He also excepted to the jurisdiction of the court; alleged that the petition disclosed no cause of action, and is vague.

The court, under the authority of State ex rel. Matt vs. Judge, 37 An. 843, ruled that all the defences relied on, whether exceptions or merits, must be pleaded at one time, but gave to defendant’s counsel opportunity bo file further defences in addition to the exception filed.

None other was offered.

Judgment was rendered for plaintiff, condemning defendant bo deliver possession of the premises.

Ejectment proceedings to eject a lessee are summary.

The statute provides that on the termination of the lease, to repossess his estate, the lessor shall give his tenant notice to remove and allow him all the time granted by law for such removal. If the tenant shall refuse to comply, after the expiration of the delay, the lessor may cite him, whenever the monthly rent exceeds the sum of §100, to appear before the District Court in order to be there condemned to deliver possession of the leased premises.

On proof of these facts, the court may give judgment ordering the delivery of possession.

The case is always to be tried by preference, when applied for.

An appeal does not suspend execution, unless the defendant has filed a special defence supported by his oath.

“The statute specifically requires that these proceedings of a landlord against a tenant be summary.” State ex rel. Matt vs. Judge, 37 An. 844.

The Article 756 C. P. gives to the court a discretion in relation to the trial of summary cases, with which the appellate court will not interfere. Police Jury vs. Manning, Tutor, 15 An. 182.

The ejectment of a tenant must be tried summarily. Peraut vs. Heartt, 22 An. 293.

The court had the authority, in compliance with its rule relating to the trial of summary cases, to require the defendant to file all his pleas with his answer.

With reference to the citation to answer within three days: The proceedings being summary, the statute limiting the notice to three days applies to the citation, i. e., to the notice by citation, and excludes these summary cases from the delay applying to the ordinary action by petition and citation.

If the time be not limited to three days to answer, cases made summary would be subject to greater delays than ordinary cases.

There was no necessity of a statute to secure a speedy trial of summary cases. If the “notice” of the statute did not refer to the citation and applies to the setting of the case, it was purposeless and did not secure any right.

“ We are bound to presume that the law is useful and to construe it with reference to some use.” Domat.

Relative to the court’s jurisdiction: The monthly or yearly rental is the test of the court’s jurisdiction.

The lease expired September 30, 1891.

The rental was $4000 per annum.

The defendant contends that, as it was not the value of the property but the annual or monthly rent which gives jurisdiction, and as the petition does not allege the amount of the rent, the court was without jurisdiction.

Plaintiff declared in a lease, the amount of which shows the court had jurisdiction.

If the jurisdictional was not sufficiently expressed in the petition, it has been made ample by the act of lease offered to meet the plea to the jurisdiction.

On the exception of no cause of action: Plaintiff in his petition alleges that he bought the property at the time under lease; that the lease having expired,-notice to vacate had been given to the tenant; the notice and the return are annexed to the petition.

The purchaser became subrogated to the rights of the vendor under the lease. Q. O. 2733, 8 N. S. 563.

The demands for relief are consistent and conformable tp the nature of the remedy.

He had the legal right to ejectment proceedings against the tenant of his property at the expiration of the lease, after fifteen days’ notice.

The defendant contends in argument that more than one week having elapsed (the lease expired September 30, 1891, ar.d notice to vacate was served on the 8th of October following) the lease was tacitly renewed (reconducted) for another month.

Suit to eject the defendant was brought October 26, 1891.

The defendant, in his pleadings, has not claimed any rights of renewal.

Whatever rights he may have had under Act 2689, relative to the presumption of renewal of the lease, are enforceable in accordance with plea covering them.

Art. 36 of 1888, in amending Section 2155 of the Revised Statutes, as to notice, necessarily amended the Civil Code on the subject, i. e., 2686.

Upon the expiration of the lease, the notice may be given and need not precede its period of duration by fifteen days.

The last in the order of the pleas as presented is that of vagueness: Full notice was given to the defendant of the grounds of the action. There is a definite issue presented. The defendant could not be ■taken unawares by the evidence admissible under the pleadings, as the petition was explicit in substantial particulars.

The lease was alleged and admitted in evidence, under the allegations. The object of the demand, the nature of the title and'the cause of action were stated. There can be no just reasons for maintaining that plaintiff’s action is vague.

Judgment affirmed at appellant’s cost.


author: Breaux, J.

text:
    No. 10,902.
    O. H. P. Semple vs. R. N. Scarborough.
    L The authority of the thing adjudged must be tested by the requisites of Article 22S6 of the Civil Code. The decree is not final unless it falls within the terms of that article.

      2. Verbal sales of immovables fire null as to third persons.
    3. The promise to sell must be established with the same formalities as sales.

      i. All sales affecting immovable property not recorded are null and void, except between tliepax’ties thereto.

      5. Property can be specially hypothecated only by the owner or by some one authorized to act for him.
    6. The mortgage given by one not the owner will not become valid, unless he acquires the ownership.
    7. Joining the owner (who had promised to sell to the mortgagee) in the sale of the property is not an acquisition of the property, and does not give validity to the mortgage.
    8. A tutor has no right to pledge the notes due his wards as a security for his debts.
    One of the notes at one time unlawfully pledged having been restored, and the other having been collected in the mame and for account of the tutor, who applied the amount to the payment of his debt, he has no right of action to recover the amouut paid in satisfaction of his individual debt.
    APPEAL from the Tenth District Court, Parish of DeSoto. J.

      E. W. Sutherlin and G. W. Elam for Plaintiff and Appellee:
    1.There is a strong analogy between the plea of res judicata and lis jyendens, and1 it is a fair tost to inquire whether a final judgment in the former suit would be res jvdicata in the latter. If it would, the exception of Us pendens is well pleaded* 4 An. 520; 8 An. 15; O. P.335; 5 An. 494; 12 An. 726; 13 An. 535; 27 An.79 (82); Dross on Pleading, See. 176, p. 169; If lien., p. 1166.
    2.Third persons not originally party to the suit may intervene in the same, and, like the defendant, institute demands, provided the samo be incidental to the main action and necessarily connected with the same. O. P. 363, 364, 374; Cross-on Pleading, verbo Intervention, pp 422, 423,424.
    3.Amendments may be allowed, provided they do not alter the substance of the demand or the theory of the action. O. P. 419; Dross on Pleading, Sees. 217 to 222 inclusive.
    4 All sales of immovable property shall be made by authentic act or under private signature. Except as provided in Art. 2275, C. 0.. every verbal sale of immovables shall be null as well for third persons as for the contracting- parties themselves, and the testimonial proof ol' it shall not be admitted. O. O. 2440.
    5.A promise tosellmn>t be vested with the same formalities as are prescribed concerning sales, in all cases where the law directs that the sale be committed to writing. D. O. 2462; 17 An. 210, and cases cited.
    6.Conventional mortgages can only be agreed to by those who have the power of alienating the property which they subject to them. 11 An. 6S4; 12 An. 699; 13 An. 386; 16 An. 280.
    7.Such as only have a right that is suspended by a condition and may be extinguished in certain cases can only agree to a mortgage subject to the same conditions and liable to the same extinction. 12 K. 450; 21 An. 253; 23 An. 214.

      J. F. Grierson for Defendant and Appellant:
    A mortgage granted by a debtor on property of which lie is not at the time owner shall bo valid if he shall ever after acquire its ownership by whatever tillo. D. D. 3304; Amonett vs. Avis, 16 An. 226.

      A third person receiving mortgage notes as collateral security for a debt due him, and receipting for sueli mortgage notes as snob, by referring to the book and page where the mortgage is recorded, is estopped from afterward disputing the mortgage, especially after bo shall have received a part of the proceeds of the property mortgaged. 15 An. 5IÍ1; 32 An. 1280; 39 An. 123.
    One who rents from bis adversary thereby acknowledges his own want of title and recognizes that of his adversary. 26 An. ISO.
    Minors are not bound for money borrowed, ora debt contracted in their name, by their tutor, unless he bo authorized by the court under the advice of a family meeting. Those who deal with tutors acting for minors do so at their peril. Union Rank vs Forstall, 11 An. 116, and authorities there cited.
    Minors are not bound for purchases made for them on credit beyond their means, or speculations engaged in by their tutor, even when authorized by the probate court acting on the. advice of a family meeting, itandlett vs. Sheriff, 82: An. 00-1.
    Tutors have no power to pledge the mortgage notes belonging to his ward with third persons to secure bis own individual debt
    Collections made by such third persons from such collaterals in his hands belonging to the minor may be recovered from him at the suit of the minor to whom the collaterals belong.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues to foreclose via ordinaria a vendor’s privilege and mortgage against the defendant, amounting to $1237.40, and for interest and fee of attorney, on a tract of land, known as the Forston place, in the parish of De Soto.

The defendant makes no defence personally.

As the tutor of his minor children he intervened, and in his petition of intervention avers that this property was on the fifteenth day of December, 1886, mortgaged to him, as tutor, to secure twa amounts, aggregating $3577.21, and interest.

There was another amount of $2500 claimed, which was subsequently abandoned, and is therefore no longer at issue.

The mortgagor was T. N. Coleman, who did not have a deed to the property mortgaged.

The intervenor alleges that at the time the mortgage was given the mortgagor had paid the purchase price, except about $1000.

He assumed that the sale would be made to him, and mortgaged this property, which he did not own, with other property he owned at the time.

The intervenor avers that in April, 1888, F. M. Forston, who had promised to sell to Coleman, sold the property to the defendant, Scarborough. In this sale Coleman joined, and the defendant contends that in thus joining the mortgage before mentioned became valid.

The intervenor also avers that he acted without authority in placing with plaintiff the notes of his minor children (secured by said mortgage) as collateral security for a debt of $3468.86. This said amount is claimed by plaintiff, as due him, by the intervenor tutor, in another suit pending before this court.

Scarborough, tutor, defends on different grounds.

He, as tutor, alleges that he has the right to recover back two mortgage notes and all amounts collected on them, as the claim belonged to the minors. That this mortgage of the minors is superior in rank to that of the plaintiff.

To the demand of the intervenor the plaintiff pleaded res adjudicates, and in its support alleged that the tutor, who is the intervenor, presented an account of tutorship in which was carried the ■claim of $3468.66 as due to plaintiff.

This account was homologated in 1889.

This judgment was the subject matter of a suit before this court at its last issue. 43 An. 316.

This court held that the judgment did not have the appearance of one enforceable against the minors, as it was not proven that they had been placed in possession and the succession closed; that if on the trial of the merits it should be conclusively shown that the tutor administered the succession ex virtute offieii, a sale under C. P. Art. 990 was the proper remedy to enforce payment.

That case was remanded for further proceedings.

It was tried.

Judgment was rendered in favor of R. N. Scarborough, tutor, which was reversed by this court, 44 An.

The issues are different in the pending case.

The action is to recover on a note secured by mortgage.

The intervenor claims a superior mortgage and certain notes and obligations he alleges are illegally held by the plaintiff.

The parties are not the same; in one case the defendant debtor is sought to be held, in the other the contention arises about the indebtedness of a succession and the mode of enforcing collection.

The plea of lis pendens was also filed against the intervenor.

The cause of action is not the same. A final judgment in the case pleaded as lis pendens will not settle the issues in this case.

To sustain the plea, not only the subject but the parties must be the same, or privies to the parties in the pending suit.

The subject matter involved in the present is different from that in the case of the tutorship of the minors Henry P. and Thomas Scarborough vs. R. N. Scarborough, natural tutor.

The relief asked for is different.

In matter of the sale in said case, it is contended that the judgment is not binding on the minors and that the property can not be sold on rule to sell as against an administrator; in this case they seek to recover notes pledged as collateral and to prevent amortgage from being enforced as first in rank.

Plaintiff also urges as exception that the intervention is in its nature independent of the main action brought by plaintiff and not connected with or incidental to the same.

The intervenor a’leges an interest and claims that he has a prior mortgage, and alleges that plaintiff’s mortgage is invalid.

The interventional demand is clearly connected with the main action. It was properly used to protect a right in the property plaintiff asks to have sold for the payment of his alleged mortgage.

These pleas were properly overruled.

On the Merits.

The priority in rank, vel non, of plaintiff’s mortgage presents the first question for our determination. It is conceded that at the time the mortgage to Scarborough, tutor, was signed the mortgagor was not owner. The intervenor does not contend that the mortgage by one not the owner gives him a right.

He claims that the promise to sell has been complied with, and that the mortgage has thereby become valid, and relies upon Article 3304 of O. C.: “This mortgage shall be valid if he (the mortgagor) should ever after acquire the ownership of the property by whatever right.”

In support of his contention he invokes the fact that the notes secured by this mortgage, Coleman to Scarborough, tutor, were pledged to the plaintiff, and that in the written receipt of these notes it is stated that they are secured by this mortgage, and that he is therefore estopped. He also relies upon a sale made in 1888.

With reference to this sale it appears that the party who had verbally promised to sell was unable to return the amount he had received on account of the price, and the pgrty who was to buy the mortgage was unable to pay the remainder to consummate the sale. Thereupon Forston, who had promised to sell to Coleman, offered the land to Scarborough, who purchased.

The latter applied to the plaintiff to borrow the money to pay for it. Plaintiff consented to loan the amount, provided notes secured by mortgage and vendor’s privilege were executed by the buyer, which would be transferred to him, plaintiff. The deed was signed and the note transferred in compliance with the agreement made.

The property was not sold to the mortgagor at all. Although never owned by the mortgagor, the intervenor pleads the act of mortgage to defeat plaintiff’s claim, and contends that it precedes that of his creditor.

There was a verbal promise to sell. The conditional promise to sell does not give the right to mortgage property, and no right will arise under the mortgage unless the promise is followed by compliance.

The receipt invoked does not create a mortgage, as none exists.

The plaintiff testifies that he did not know of any such mortgage.

The declaration in the receipt does not give validity and binding effect to the alleged mortgage.

The condition laid down in the article of the code is that the mortgage shall be valid if the mortgagor becomes the owner.

The receipt did not make the mortgagor the owner and, therefore, the alleged mortgage was ineffective.

An estoppel is limited to questions concerning the receipt and does not apply to incidental descriptions.

A receipt may be contradicted or explained.

Even in a deed the recital to operate an estoppel must appear as intended not to be questioned or that injustice would follow if the court were to allow it to be contradicted.” Bigelow on Estoppel, p. 317.

The property having been sold by the owner no one can lay claim to any right under the mortgage not executed by the owner.

In the deed of mortgage of December, 1886, by Coleman (not the owner) to Scarborough, tutor, it is declared that the mortgagor expects to secure a title.

The owner who had promised to sell, as a witness, states that it was agreed that no sale would be passed before payment of the price.

The price was not paid and the property was sold to another.

The sale to the mortgagor never was made.

The intervenor claims one of the notes identified with the alleged mortgage, amounting to $2075, and the amount collected in payment of another also identified with the act. These notes were pledged to secure the payment of certain amounts due by the intervenor.

The issues do not establish a pecuniary responsibility on the part •of plaintiff, for he has returned the notes and only received an amount in payment of a sum due him.

The intervenor in this case, some time since in another suit, intervened and alleged that he had possession of the note he now seeks to recover. Since that intervention was filed it is not shown that plaintiff has had it in his possession.

The record discloses that it has not been in possession of the plaintiff since 1888.

With reference to the amount collected on the second note: It appears of record that the mortgagor, Coleman, sold certain property to James E. Greer on February 9, 1888. The notes were at the time in the possession of Sample, the plaintiff pledged as before mentioned. One of the pledged notes was paid; the other was returned to the intervenor.

The question does not arise on these notes as being in the hands of the pledgee claiming a right, but arises after one of the pledged notes had been paid and the other is in the. possession of the ■pledgor.

The intervenor seeks to make the at one time pledgee return an -amount received and return a note of which he already has possession.

The mortgagor had the absolute right to pay his debt secured by mortgage, and the possibility that the tutor will squander the amount will not affect the receipt. Riddell vs. Vijord, 35 An. 390.

The notes were collected for account of the tutor, who applied the amount to the discharge of his debt.

It is a fait accompli, and can not be revoked at the instance of the tutor, who personally made the payment.

With referenee to the claim of §3468.66: We .are relieved from giving it consideration in this case, as it has received the court’s attention and was the subject matter of another suit, decided to-day, in which it is held that the amount is due.

Judgment affirmed at appellants’ costs.


author: Watkins, J.

text:
    No. 10,853.
    Mathieu Vonderbank vs. John Schmidt.
    1. Good will is the favor which the management of a business wins from the public, and the probability that old customers will continue their patronage and to resort to the old place.
    2. It may be said to consist of those intangible advantages, or incidents which are impersonal, so far as the vendor is concerned, and attach to the thing concerned. When it consists in the advantage of location it follows an assignment of the lease of the location; and if not assigned, it passes to the lessee of the property at the termination of the lease.
    3. A ti*adc mark has no separate existence, but owes its existence to the fact that it is actually aihxed to a vendable commodity; whereas, a trade name, or a fictitious name, inay be considered as a quasi trade mark, a mere property which is somewhat allied to good will.
    4. The only restraint the grant of good will imposes upon the grantor is to prevent his subsequent employment of his own name so as to deceive and mislead the public.

      5. Asúmame may become impersonal when attached to an article of manufacture-, and becomes the name by which such article is known in the market; and, in case of sale of the right to manufacture, the name passes also; though It does not pass as good will, but as trade mark.
    6. By giving a particular name to a building, as a sign of a hotel business, a tenant thereby makes the name a fixture to the building, and the property of the landlord upon the expiration of the lease.
    One may consent to the employment of his own name as that of a place of refreshment, but if such consent be purely gratuitous, he may withdraw it at pleasure — particularly, if such name be his surname, it being personal to the proprietor, and not an element of good will of the business.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

      Buck, Dinkelspiel & Hart for Defendant and Appellant:
    The naked sale of the “good will” of a business does not transfer the right to the use of the vendee’s name of trade. Goodwill embraces only the custom ana advantage peculiar to the place, etc., and not that appertaining to thejierson of the vendee.
    The wrongful use for purposes of business of one’s name may be enjoined. The vendor is not estopped, by silence or inaction or even by a sale, with his knowledge and consent to another or second purchaser; the latter takes no greater right than his vendor had under the original sale by plaintiff.

      Bernard MeOloskey for Plaintiff and Appellee:
    GOOD WILL.
    ‘ There is considerable diflieulty in deciding accurately what is included under this term good trill. It seems to be that species of connection in trade which induces customers to deal with a particular firm. It varies in almost every case, but it is a matter distinctly appreciable, which can bo preserved if the business be sold as a going concern.” Wedderburn vs. Wedderburn, 22 Beav. 84. It is defined also as a possibility that the old customers will resort to the old place. Rawson vs. Pratt, 91 Ind. 9.
    In Hudson vs. Osborne, 39 Law J. Ch (N. S.) 79, the bankrupt had a place of business designated and known as the “ Osborne House.” Plaintiff became the owner in bankruptcy proceedings against defendant. The bankrupt was enjoined from designating his place subsequently as the “ Osborne House.”
    The name of this firm was an important consideration in the purchase thereof, inasmuch as it had been thoroughly advertised throughout the Union under that name.
    “The name of a Arm is a very important part of the good will of the business carried on by the Arm. A person says, I have always bought articles at such a house of business; I know it by that name, and I send to the house of business identiAed by that name for that purpose. And when you are parting with the good will of a business you mean to part with all that good disposition which - customers entertain toward the business identiAed by the particular name or Arm, and which may induce them to continue their custom to it. That the name is avery important part of the good will of the business is obvious,, when we consider that there are at this moment large banking and brewing Arms and others who do not contain a singlename of the individual name expressed in the Arm.” Cherton vs. Douglas, Johnson’s Eng. Oh. 174; Rogers vs. Nowvill, 3 De G. M. & G. 614; Am. and Eng. Encyclopedia of Law, Vol. 8 (Good Will), 1368. “Goodwill is of value, and can be bought and sold.” C. O. 2448,2449 ; 8An.l7;9An. 229; 21 An. 391; 35 An. 60.
    “ Such sales are very common with us, and violate no law that we are aware of. The effect tf such contracts on the public weal is too remote to ho noticed.’* 3 An. 17. - _
   The opinion of the court was delivered by

Watkins, J.

Eor many years the plaintiff in this suit was engaged in the conduct and management of a hotel, which was kept-in a rented building on Magazine street, in the 'city of New Orleans. It was kept on what is popularly known as the European plan, i. e., rooms and lodging without board. While thus conducted, this hotel was customarily styled and denominated the “ Hotel Vonderbank,” or “Vonderbank Hotel.”

While thus conducting said hotel, the plaintiff was also engaged in a business on Common street, in said city, between Camp and St. Charles streets, under the name and style of “ Café Restaurant Vonderbank,” which consisted of a bar room, or saloon, and restaurant and a few rooms for lodgers.

Plaintiff represents that the theory upon which be conducted the two businesses was that his hotel on Magazine street was to be a boarding place for the patrons of his restaurant — the two being conducted co-operatively.

That in April, 1889, he made a sale of the place to Charles Dormetzer, who carried on the business for some time thereafter, though unsuccessfully, and assigned it to his creditors. An arrangement was made whereby it was conveyed to the defendant. Under the administration of Dormetzer and Schmidtt, the hotel was operated as it had been by the plaintiff, under the name “Hotel Vonderbank” or “Vonderbank Hotel,” and he complains that it was done in plain violation of his rights and much to the detriment and injury of his business as a restauranteur.

Denying that defendant required or has the right to enjoy that privilege, petitioner enjoined his further use of Ms name, claiming damages, and from an adverse judgment he prosecutes this appeal.

The ground on which the defendant resists the plaintiff’s demands is, that by his purchase from Dormetzer he acquired all the right, title and interest of said vendor in and to the “ Hotel Vonderbank ” or “Vonderbank Hotel,” situated on Magazine street, including the good will of the business and establishment, and particularly such good will as said vendor acquired from the plaintiff, including the name or style of said hotel, which he, as a purchaser, is of right entitled to use and enjoy.

Plaintiff admits and claims that he sold to Dormetzer “ the shelving, counters, tables, crockery, beds and bedding, and all other movable effects in the building known as the ‘Vonderbank Hotel’ (or ‘ Hotel Vonderbank ’), situated on Magazine street * * * and used in connection with his business, now the property of said Vonderbank, together with the good will of said Vonderbank in and to said business.”

The business of which the plaintiff is now the proprietor, as he was at the time of his sale of the hotel, is styled and advertised as Mathieu Vonderbank, proprietor of Vonderbank’s Gafé and Restaurant,” situated at Nos. 126, 128 and 130 Common street.

It is further admitted and conceded that at the date of these transactions, the hotel was a going concern in full operation as the “Vonderbank Hotel,” or Hotel Vonderbank,” and that is so now.

It is of an interference with his restaurant business that plaintiff ■complains, on account of defendant’s improper and unlawful use of his name in the style of his hotel. Neither in the sale of plaintiff to Dormetzer, nor in that of the latter to defendant, is there any mention of the name “ Hotel Vonderbank ’’ as a factor in the contract, it-•only appearing from the two acts of sale, that there was conveyed all the movable property belonging to the hotel situated in the building known as the Hotel Vonderbank, on Magazine street, together with the good will of said Vonderbank, and subsequently of Dormetzer, in and to said premises.

On this state of facts, the only question raised is, whether, under Dormetzer’s purchase from Vonderbank, and his sale to Schmidt, including specifically the good will of the hotel establishment, the latter acquired, and is entitled to use, the name “Hotel Vonderbank” or “Vonderbank Hotel” as the style of his hotel. This must be determined by the true meaning of the term good will, as it is employed in commercial transactions. We have been referred to only three cases in our own reports in which the subject has been discussed, but in neither of which was discussed the particular question we have here, i. e., what passes by the term good will in an act of sale.

The cases referred to are the following, viz.: Wentz vs. Vogte, 3 An. 16; Succession of Jouron, 21 An. 391; Bergamini vs. Bastian, 35 An. 60.

In treating of the good will of a market stall the court said in the -second case, that it is “ understood (to be) the run of custom which the transferror had attained by the patronage of his friends resorting to his stand to purchase, and, generally, from the reputation his stand had acquired as one at which good and wholesome meats are sold, and where customers were accommodated and fairly dealt with.”

This definition appears to have been paraphrased from that of Judge Story, which is frequently quoted by judges and authors. Story on Partnership, Sec. 99; Am. and Eng. Enc. of Law, Vol. 8, p. 1366, in which brief quotations from English adjudications are found.

The third of the three cases above referred to, treated of an act of sale of an eating house at No. 21 Royal street, city of New Orleans, which contained no stipulation of good will having been conveyed, the plaintiff’s complaint being that his vendor had soon afterward begun a similar business at No. 18 Royal street, in violation of his contract.

But the court substantially held, that inasmuch as there was no-stipulation in the contract that the vendor should not resume business in his own name, the injunction should be dissolved.

We have referred to those decisions for the sole purpose of show-, ing that our own jurisprudence affords no light on the present controversy, and of illustrating the necessity of looking into the decisions of other courts, and the opinions of text writers, for the correct solution of it. And we make the following quotations as conveying a clear idea of what good will is.

For instance, the Michigan court says in Chittenden vs. White-beck, 50 Mich. 401: “Goodwill has been defined by this court to-be the favor which the management ■ of a business wins from tho public, and the probability that all customers will continue their-patronage,” or as stated by Lord Eldon in Crutwell vs. Lloyd 17 Veis. 335, say the court, “ the probability that old customers will resort-to the old place.”

The same court say in Williams vs. Farrand, 50 N. W. Rep. p. 446:

“ Good will may be said to be those intangible advantages or incidents which are impersonal, so far as the grantor is concerned, and attach to the thing conveyed. When it consists in the advantage of location it follows an assignment of the lease of the location.”

Or as was previously said by that court in the Chittenden case:

“ Good will attaches to the property, and in case of a lease, it belongs to the lessee only during its continuation. * * * The claim, to an interest in the good will is inseparable from the claim to an interest in the lease, and when one falls the other falls with it.”

To a like effect is the opinion of the same court as expressed in Meyers vs. Kalamazoo Buggy Co., 54 Mich. 215.

A standard author, in his treatise on trade marks, discusses and defines good will as an analogous right, and quotes with approval the expressions of various English judges on the subject.

Thus from Wedderburn vs. Wedderburn, 22 Beav. 84, viz.:

“ There is considerable difficulty in defining accurately what is. included under the term good will. It seems to be that species of connection in trade which induces customers to deal with a particular fir.n.

From England vs. Downes, 6 Beav. 269, viz.:

“ It is the chance or probability that custom will be had at a certain •place of business, in consequence of the way in which that business has been previously carried on.”

From Story on Partnership, viz.:

It may be described to be the advantage or benefit which is ac•quired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the ■general public patronage and encouragement which it receives from constant or habitual customers on account of its local position, or common celebrity,” etc. Sec. 90.

Browne’s Law of Trade Marks, Secs. 525, 526. In further illustration of this principle we have selected the following paragraph from "Williams vs. Farrand, as giving a careful analysis, from a commercial point of view, of what passes by an act of sale containing no stipulation of good will, viz.:

“A retiring partner conveys” — without stipulating good will — in ¡addition “ to his interest in the tangible effects, simply the advantages that an established business possesses over a new enterprise. The old business is an assured success, the new an experiment. The ■old business is a going business and produces its accustomed profits ■ on' the day after its transfer. It is capital already invested and ■earning profits. The continuing partner gets these advantages. The ■new business must be built up. The capital taken out of the old ■concern will earn nothing for months, and in all probability the first year’s business will show loss instead of profit. For a time, at least, it is capital awaiting investment, or invested earning nothing. The retiring partner takes these chances, or advantages. He does not agree that the benefit derived from his connection with the business shall continue. He does not agree that the old business shall continue to have the benefit of his name, reputation or service; nor does he guarantee the continuance of that patronage which may have been attracted by his name or reputation. He does not pledge a continuance of conditions. He takes out of the business an interest that he contributed to the success of the business. He sells only those advantages and incidents which attach to the property and location, rather than those which <attach to the person of the vendor. He sells only so much of the custom as will continue in spite of his retirement and activity.

“He sells probabilities and not assurances.” P. 449. [Italics ours.]

As a corollary oí the foregoing opinion an extract may be properly-selected from that of the Connecticut court in Cottrell vs. Manufacturing Company, 54 Conn. 138, in reference to what passed by a bill of sale of goods, etc., accompanied by a transfer of the good will, merely, viz.:

“By purchasing the good will merely Cottrell secured the right to conduct the old business at the old stand, with the probability in his favor that the old customers would continue to go there. If he desired more he should have secured it by positive agreement. The matter of good will was in his mind. Presumably he obtained all that he desired. At any rate the express contract is the measure of his right; and since that conveys a good will in terms, but says no more, the court will not, upon inference, deny to the vendor the possibility of successful competition by all lawful means with the vendee in the same business. No restraint upon trade may rest'upon inference. Therefore, in the absence of- any express stipulation to the contrary, the vendor might lawfully establish a similar business at the next door,” etc. [Italics ours.]

From the foregoing it appears that good will is an advantage or benefit which is acquired by a business establishment beyond the mere intrinsic value of the capital stock; that it is the general public patronage and encouragement which a business receives from its customers on account of its local position; that it is the subject of value and price, and of bargain and sale, though intangible; but in order to be conveyed mention of it must be made of it in the act of sale.

The discussion of the rights of a vendee of good will more frequently arises in the course of liquidation of corporations and sales in partnerships than elsewhere; but, as the principle involved is the same as in cases of bargain and sale between individuals, decisions involving such transactions may be examined, along with others, in ascertaining to what extent and in what class of cases such sales involve the assignment to the vendee of the i*ight to use the name of the vendor.

In Williams vs. Farrand it was held that a retiring partner could not 11 úse his own name * - * in such a way as to lead the pub - lie to suppose that he is continuing the old business,” etc.

In Myers vs. Kalamazoo Buggy Company, 54 Michigan, 215, three partners retired from the Kalamazoo Wagon Company and thereafter organized and put into operation the defendant company. They were enjoined from prosecuting that business on the ground that they were guilty of an act of piracy, as they “ were not using their oxon names” but an assumed name, calculated to deceive the public.

Like cases are stated in Burgiss vs. Burgiss, 3 DeGex, M. and G. 896, and in Lee vs. Hally, L. R., 5 Ch. App. 155.

In the Williams case the court states that where an express contract has been made * * for the use by the purchaser of a fictitious name or a trade name or a trade mark, courts will enjoin the continued violation of such an agreement.” Grow vs. Seligman, 47 Mich. 607; Beal vs. Chase, 31 Mich. 490; Burchardt vs. Burehardt, 36 Ohio St., 261; Todo vs. Gross, 28 N. E. Rep. (N. Y.) 469.

But the court further stated thar such a stipulation need not be made in the act of sale because “ an assignment of all the stock, property and effects of a business * * * carries with it the exclusive right to use a fictitious name in whicli such business is carried on, and such trade names and trade marks as have been in use in such business. These incidents attach to the business * * and pass with it. Courts have frequently held that a trade mark has no separate existence; that there is no property in words as detached from the thing to which they are applied ; and that the conveyance of the thing to which it is attached earries with it the name.” Derrenger vs. Platt, 29 Cal. 292; Gage vs. Publishing Co., 11 Ont. App. 402; Hoxie vs. Chaney, 143 Mass. 592.

In this last case it is stated that a bill of sale conveying “ all the right, title and interest in and to all and singular the partnership property belonging to the firm ” was held to convey the company’s trade marks for the manufacture of certain soaps pursuant to the formulas of Hoxie, though not mentioned; but not to convey the good will preventing Hoxie from manufacturing soaps otherwise than by such formulas.” Bassett vs. Percival, 5 Allen, 345; Courell vs. Manufacturing Co., 54 Com. 122.

The same proposition is stated more clearly in Prussian Cement Co. vs. LePage, 147 Mass. 201, the court holding that it was legitimate for one to sell “ the use of his name as a trade mark, ” i. e., “as a description or designation of a manufactured article, so as to deprive himself of the right to use it as such and confer the right upon another.”

Thus: “ One who has carried on a business under a trade name and sold a particular article in such a manner, by the use of his name as a trade marls or a trade name, as to cause the business or article to become known or established in favor under such name, may sell or assign such trade name or trade mark when he sells the business or manufacture, and by such sale or assignment conclude himself from, the use of it in a similar way.” McLean vs. Fleming, 96 Mass. 245; Shorer vs. Shorer, 54 Iowa, 208; Frazier vs. Frazier, 147 Mass. 208.

Many of these cases are brought forward in the Williams case, and after recapitulating these different propositions the court say:

“These propositions are sustained by a long.line of authorities, but in none of those eases does the question hinge upon a grant of good will. Complainants insist, however, that a grant of good will * * * imposes certain restrictions upon the vendors, and inter alios, is the use that may be made of their own names; ” but the court examined that question fully, and placed the proper limitation upon that contention by stating that its sole effect was to prevent the vendor’s subsequent employment of his ñamo so as to impair the good will he had conveyed to the vendee.

The court, in the Williams case, then furnishes the following appropriate illustration of the rule, viz.:

“ A partnership name may become impersonal after the death of the partners, and it is then likened to a fictitious or corporate name.

“A surname may become impersonal when it is attached toan article of manufacture, and becomes the name by which such article is known in the market, and the right to use the name may, in consequence, follow a grant of the right to manufacture the article, or a sale of the business of manufacturing such article; and when the right to manufacture is exclusive, the right to the use of the name as applied to that article becomes, likewise, exclusive.”

This is followed by this conclusive statement, viz.:

“The rule that, upon the dissolution of a firm neither party has the right to use the firm name, as well as the other rule that a retir■ing partner has no right to use the old name, are both subject to the exception that a person has the right to use his own name unless he has expressly contracted otherwise. * * * *

“The right to continue the use of a firm name, as well as a restriction upon the use, by a retiring partner of his own name, are proper subjects of bargain, sale, and agreement.” Hence the defendants, as retiring partners, without any restrictions having been placed 'upon them in the act of sale of their interest in the copartnership business were recognized to “have the right to use their own names or any collocation of their own names.”

We can not better illustrate the principle that is involved in the foregoing decisions than by citing the case of Meneely vs. Meneely, 62 N. Y. 431, wherein an injunction restrained the defendant from in any way “using the name and designation of ‘Meneely’ in the business of bell founding in the city of Troy. The name of the defendant is Meneely, and he was engaged in the business mentioned. The necessary consequence of the injunction was to compel the defen lani, Meneely, either to discontinue the business of bell founding in Troy, or procure it to be done in the name of some other person. He was ah; ■ Mutely prohibited from the use of his own name, -in his own basinets, i,i tony tvoi/.'- Bui the court ruled that “every man has tit-e absolute right io use his own name in his own business, •even though he may interfere with, or injure the business of another having the same name, providing he does not resort to any artifice or contrivance for the purpose o'f producing the impression that the establishments are identical, or do anything calculated to mislead.” Thus the right of one to the free and unrestricted use of his own name, in a business enterprise, is so strong that his right is not impaired, even if it operate an infringement of a trade mark, so that no artifice be resorted to for the purpose of deceiving the public, notwithstanding the “ owner’s right of property in it is as complete as that which he possesses in the goods to which he attaches it.” Derrenger vs. Platt, 29 Cal. 293; Sohin vs. Johnson, 111 Mass. 238; Holmes vs. Manufacturing Company, 37 Conn. 278.

In Browne’s Law of Trade Marks, in the course of his treatment of good will, he says:

“ Courts of equity will protect a party in the use of a name of an inn, hotel or other place of business, when the sign is simulated. * ” * * - * If a man creates a reputation for his business, it is as the keeper of some particular house at a known location, and it is piracy to draw off the custom of his friends, or customers who have identified him with the name of his house. It is a personal right. By giving a particular name to a building as a sign of the hotel business, a tenant does not thereby make the name a fixture to the building and the property of the landlord, upon the expiration of the lease.” Pp. and Sec. 439, 440.

Clearly such name or appellation of a hotel is not an.incident of good will, as good will exclusively appertains to a given and designated locality and becomes a fixture of the leased premises and at the expiration of the lease it passes to the landlord.

This is conclusively shown by the author’s subsequent observation, viz.:

“One may consent'to the employment of his name as that'of a; place of refreshment; but if such consent be purely gratuitous, or unless there is some valid agreement binding upon the party who gives his consent he may withdraw it at pleasure and enjoin its further use.”

But the argument in favor of such á withdrawal of a business-is strengthened by the fact that the author only had in contemplation trade names, or fictitious names,-such as St. Charles, St. James and Hotel Royal, which any one is free to use, for such a name might pass with the sale of the hotel business, and be changed at the caprice of the purchaser.

This distinction makes it clear that the employment of one’s own-name to designate his place of business can not be considered as an element of good will, for, if so — following the principles just announced — it would necessarily result in its loss to the person possessing it, as at the termination of the business it would pass to the proprietor of the leased premises. Having conveyed it to a successor — and we have ascertained that the disposition of good will is matter of contract — he could not thereafter come in competition with his vendee without violating his obligation of warranty. . Therefore, we conclude, with Mr. Browne, that whilst the employment of one’s own name to designate his place of business may be transferred in like manner as good will, yet if it be done by a purely gratuitous, contract, in the absence of any valid and enforceable agreement for a consideration, he may withdraw it at pleasure.

The conclusion is that such an employment of his own name in business forms no part of the good will, but on the contrary it partakes of the characteristics of a trade mark, and may be classed as. a quasi trade mark, of which Mr. Browne says:

“It should be borne in mind that a trade mark carries the idea of a man’s personality, like his ordinary autograph, and, therefore,, preserves its essential characteristics wherever it may go. This is not so with quasi trade marks, as the name of a hotel or shop of' trade,” etc. Id., Sec. 90.

The distinction between trade names and trade marks is stated as follows, viz.:

A trade mark owes its existence to the fact that it is actually affixed to a vendable commodity (Sees. 52, 382, 384), whereas, a trade name is mere property, allied to the good will of the business.”

In Woodward vs. Lazar, 21 Cal. 449, defendants were restrained from using the name “What Cheer House,” as the name of a hotel in the city of San Francisco.

Woodward, plaintiff, first erected a hotel building on a leased premises, and gave it that name. During his occupancy as tenant* he purchased and built on the adjoining lot another hotel edifice, and occupied it also. Afterward, he surrendered the leased premises and occupied the second, and continued to conduct a hotel business on his own premises, under the name and style of “What Cheer House.” Subsequently the defendants purchased the premises first described and conducted thereon a hotel under the original name, “ What Cheer House.”

In that case the contention of the plaintiff in injunction was, that, the name belonged to him as the proprietor of the hotel last established, and which he both owned and occupied; and which he had. theretofore used continuously while proprietor of the hotel he had leased, and up to the date of its surrender, it being a trade name.

On the other hand the contention of the defendant was, that file-name was a mere designation of the building in which the business,, as first established, was conducted, and that it attached to the building at the termination of the plaintiff’s lease, and passed to him by the purchase thereof from the plaintiff’s lessor — it constituting a part of the good will of said property and establishment.

Denying the latter proposition, the court said :

“ A person may have a right, interest or property in a particular name, which he has given to a particular house, and for which house,. under the name given to it, a reputation and good will may have been acquired; but a tenant, by giving a particular name to a building which he applies to some particular use, as a sign to the business. done at that place, does not thereby make the name a'fixture to the building and transfer it irrevocably to the landlord.”

Thus a clear distinction was taken by the California court between the reputation a name or appellation gives to a certain business locality, and which adheres to it without any reference to the proprietor of the establishment, personalty, and the designation of a name for a locality at- which a certain business is carried on, and which is not impersonal, and does not attach to the property, but remains subject to the control of the proprietor.

The court, in treating of this distinction, said:

“Defendant’s claim to protection, so far as his right results from the good will acquired for the name while it was applied exclusively to the leased premises, may not be maintainable; ” (yet plaintiff) •“is entitled to protection in the exclusive use of the name as proprietor of the new house.”

Had the name of that establishment formed an element of the good will of the hotel business while it was being cm ducted on the leased premises by the plaintiff, it wonld, under n 11 t > ihe authorities, have passed to the landlord at the termimitior, o.' iv plaintiff’s lease, and by bis conveyance to the defendant; buf • . \ . s rather a personal perquisite of the proprietor while lessee, and not an impersonal ingredient of his business, it did not pass to the landlord, but remained subject to the control of the lessee at the termination of the lease.

Onr conclusion is that on reason and authority the case is with the plaintiff. That the name given to a building in which a hotel is kept, which contains the name of the proprietor, does not constitute an element of good will, though it may tend to enhance the business reputation of the place or situs of the business establishment, which is an ingredient of good will.

That while under the authorities such a name is a marketable article and a proper subject of sale, yet it must be expressly understood in the act of sale, and if no consideration be paid, same may be subsequently recalled.

Such transactions, being esteemed to be in restraint of trade, are disfavored in commercial dealings.

In this case there is some proof of injury sustained by the plaintiff on account of the defendant’s improper use of his name; yet we are disinclined to rest a judgment upon it, because we are satisfied the defendant acted fairly and honestly, and under a mistaken belief that he had acquired a right to employ the plaintiff’s name as he did.

But we are clearly of the opinion that plaintiff’s injunction should be maintained and perpetuated.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that there be judgment in plaintiff’s favor and against the defendant, perpetually enjoining and restraining the latter from using or employing the name “Hotel Vonderbank” or “Vonderbank Hotel,” as the name or style of a hotel or restaurant, at the former site of such establishment as that kept and operated by the plaintiff.

It is further ordered and decreed 'that plaintiff’s demands for damages be rejected in tofo, and that the defendant be taxed with the cost of both courts.

Mr. Justice Breaux having a personal interest in the question recuses himself.

Rehearing refused.


author: Fenner, J.

text:
    No. 10,835.
    Scholfield, Goodman & Co. vs. Succession of B. J. West et al.
    When the privileges by which taxes are secured, are proscribed, such taxes become more personal claims against the tax debtor, and mortgage creditors are-not debarred from seizing and selling, nor the sheriff from executing title to the property, by reason of their non-payment. They cease to be “ taxes due on the property” within the meaning of See. 3615, Revised Statutes, which must ho construed in connection with other laws in pari materia.

    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J. _

      White, Parlange & Saunders and Carroll & Carroll for Plaintiffs and Appellees:
    In this ease a rehearing is asked for on the ground that the brief filed on behalf of ¡the plaintiffs did not sot forth correctly the parties before the court, and did not call attention to the most important point in the ease. The court was-not correctly informed as to cither the parties or the issues.
    The opinion is based solely on Sectiou 3615, Revised Statutes, which does not affect the ease, having been repealed by Act 96 of 1877. Sutherland on Statutory Construction, Section 151, etseq.; 11 AVall, S3: 106 U. S. 396; 37 An. 578; 11 An. 170; 11 An. 139; 3 N. S, 236. ' '

      Fven if Section 8615, Revised Statutes, were in force in 1887, nevertheless, this section should be construed so as to harmonize with other laws, and not in such a manner as to deprive plaintiffs of rights arising under other statutes of equal force and dignity,-which protect mortgage creditors, and which can be recon - cilcd with this section. 39 An. 115; 11 An, 128; 42 An. 1149; 42 An. 1201.
    'The contest is over a fund, the proceeds of a sale under foreclosure, betweeh creditors claiming under a mortgage and the city of New Orleans, claiming under alleged tax privileges. The privileges are prescribed under Act 96 of 1877, and the mortgage creditor is entitled to be paid by preference.

      W. B.. SommervilPe, Assistant Oity Attorney, and Garleton Hunt, ■City Attorney, contra:

    1. Paymont of taxes on an erroneous assessment estops the owner of the prop'‘erty from contesting the validity of that assessment at any future time. Factors So Traders Insurance Co. vs. Levi, 42 An. 485; Carter, Congreve et al. vs. City, 88 An. 816; Lane vs. March, 38 An. 554; Reed vs. Creditors, 39 An. 115; 2 ' Desty on Taxation, pp. 628, 629; Carpenter vs. Town of Dalton, 58 N. H. 615.
    2. City taxes are imprescriptible. Sec. 86, Act 96 of 1877; Act 26 of 1886; Sue. of Stewart, 41 An. 128; Sue. of Mercier, lb. 1149; Rivers vs. City, lb. 1201.
    8. If it suits the convenience or pleasure of mortgage creditors to indulge the mortgagor, so that they may realize interest on their debt, they should not expect the city to lose its revenue through tlicir tardiness or delay. Factors & Traders Insurance Co. vs. Levi, 42 An. 434.
   ON' Rehearing.

The opinion of the court was delivered by

Fenner, J.

The plaintiffs, mortgage creditors of the iate B. JL West, seized and sold'under executory process the property subject to their mortgage.

The price realized is not sufficient to pay the mortgage of plaintiffs. Thp property is encumbered by inscriptions of taxes due- the •.city of New Orleans for numerous years, and the sheriff declined to proceed in execution; of the adjudication until the conflicting claims •between the plaintiffs and the city should be settled.

Thereupon the plaintiffs took this rule on the city to show cause why the inscriptions of these taxes, as liens and privileges on the property, should not be canceled and erased on the ground that said liens and privileges were prescribed.

Issue was joined, and after trial judgment was rendered rejecting plaintiffs’ demand, so far as the taxe.s of 1888, 1889 and 1890 are concerned, and recognizing the superior privilege of the city for the same, but making the rule absolute as to the taxes of former years.

From this judgment the city appeals. The right of the plaintiffs to purge the property of prescribed privileges, apparently priming their mortgage, is not questioned.

No objection is made to the mode of proceeding.

The city admits that the liens- and privileges for taxes of 1887 and prior years are prescribed; therefore, we are relieved from the necessity of examining the question.

' 'We can discover no possible force in the city’s contention that plaintiffs must be denied relief because'it was stipulated in their act of mortgage that the mortgagor should, pay the accruing taxes. That stipulation imposed no duty on the mortgagees, added nothing to the legal duty of the mortgagor, and took away nothing from the rights of the city,

' The' city was entirely unaffected thereby.

The city further contends, as we understand it, that plaintiffs are •entitled to no. relief on account of the prescription of the privileges, .because the taxes themselves are not prescribed, and Section 3615 ■of the Revised Statutes prohibits the sheriff from passing sale of the property “unless the State, parish and municipal taxes due on the same be first paid. ”

Pretermitting the question,- much controverted in argument, as to whether Section 3615 remains in force or has been repealed by subsequent revenue laws, further reflection has convinced us that the terms “ taxes due on the same,” as used in the law, must be confined to taxes having a subsisting privilege on the property.

The privilege in favor of taxes, like all other privileges, is' derived from thé latvl

The Code defines a privilege to be “ a right which the nature of a debt gives to a creditor and which entitles him to be preferred befo’re other creditors, even those who have a mortgage.” O. G., Art. 3186.

The law granted this privilege to the city for its taxes; but the same law declares that the privilege should be prescribed by three years. If the law had not granted the privilege, the city would not have had the right to be preferred over mortgage creditors. While the privilege subsisted, the city had this right.

After the privilege was extinguished by prescription, the city lost the right.

To maintain the construction of Section 8615, contended for by the city, would render equally nugatory the laws granting privileges for taxes and those prescribing’ such privileges; for if, under that section, mortgages oan in no event be satisfied until the taxes are first paid, it seems absurd and superfluous either to grant or to prescribe privileges for such taxes.

Obviously when the privileges for these taxes were prescribed the taxes became mere personal claims against the tax debtor, having no greater rights against this particular property than against any other property of the debtor They were no more “due, on” this property thau on any other property.

Such taxes dp not fall within the purview of Section 3615, which must be so construed as to harmonize with other laws referring lo the same subject matter.

It is, therefore, ordered that our former decree herein be set aside, and it is now decreed that the judgment be affirmed.


text:
    No. 10,729.
    Herman Herlisch vs. The Louisville, New Orleans & Texas Railroad Company.
    On approaching a street crossing ol a railway track in a city, it is the duty ot a traveler to exercise his senses of sight and hearing and look and listen for an approaching train. His failure so to do is negligence which, in case ot collision, will prevent his recovery of damages for injuries sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Henry L. Lazarus and Lionel Adams for Plaintiff and Appellee:
    When the usual warning is withheld, the wayfarer has a right to assume that tins crossing is safe, and that the company is not violating the law and endangering human life by running an engine without signals.
    The citizen on the public highway is hound only to the exercise of ordinary care; and when he is injured by llie negligence of a railroad company, it is no answer lo his claim for redress that notwithstanding the omission of the signals he might by greater vigilance have discovered the approach of the train; if lie liad, foreseen a violation of the statute instead of relying’ upon its observance.

      The traveler la norbound to stop on the highway, or to look up and down an inter-reeling milway track before crossing, when there are no signals of an approaching engine, lirnst vs. Hudson Railway, SdMffany,pp.9 and 10 fXuw York Court of Appeal*»;.
    When* a railroad company permits or acquiesces in the public* using its roadbeds? for travel, the parties \ising the roadway are licensees and not trespassers. Authorities In brief.
    Farrar, Jonas cfc Kruttschnitt for Defendant and'Appellant:
    1. The use of a railroad track as a thoroughfare is negligencei>er iff. £ucli use*is a. trespass, and no duty lies upon the railroad company except that of not injuring such trespasser wantonly. *28 Ind. 287: 47 Ind. 43; 13 Minn. 30; 10 Ire. (X. O. j* -H)2; U Pa. M. 375; 111 (la. 207; 71 111. 500; 19 A. and K. R. R. Oases, S3; Ibid. 108.
    *2. The mere fact that people have frequently trespassed upon the railroad track,, and (hat the company may not have resorted to any means to stop the same,. will not imply consent to such use of the track; nor will it create any right in* sueli.u>A!i\ 10 (la. 207; 79 Ra. 33; 13 Tnd. 325; 47 Ind. 43; 97 Mass. 276; 71111. 500; S3 HI. 510; ]oo Muss. 508; 8 Am. and K. K. R. Oases, 726; 15 Am. and ft. ft. R. Cases, 439.-
    8. JE one walks on a railroad track as a thoroughfare and is injured while on a* street crossing, he is guilty of contributory negligence. 19 Am. and If. ft. It. Oases, 342.
    4 The failure of a person at the intersection of a railroad track and a highway to employ his senses, when such employment would insure safety, is, as a matter-of law, contributory negligence. 44 Am. and K. ft. R. Cases, 568.
    .5. The duty to stop, look and listen, when approaching a crossing, is imperative^, and no court has ever relaxed it.
    6 failure to post a llagman or give signal at crossing does not exempt party approaching a crossing from obligation to stop, look and listen. 95 IRS. 697; 64 Mo. 4s»; H X. Y. 296; 120 Mass. 257; 47 111. 514; 22 111. 264; 2 Am. and K. ft. R. Oases,, 172; Ibid 220.
    7. The burden of prooi being on the plaintiff to show want of contributory negligence, he can not recover for injuries at a crossing without some proof or statement that he used such reasonable precautions as the dangerous position, he was in required of him.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for serious permanent injuries, sustained by tbe plaintiff, by reason of his having-been struck by one of defendant’s locomotives, through the gross and culpable fault and neglect of its servants and employés.

The occurrence is alleged to have happened on the evening of the 20th of August, 1889, at the intersection of Clara and Poydras. streets, in the city of New Orleans, as the plaintiff was crossing thfr former, the said locomotive moving westward from the company’s depot at the time.

Petitioner charges that from the injuries inflicted he suffered great pain in mind and body, and has, thereby, been rendered unable to perform any labor, or earn the means necessary to support himself and family since the occurrence.

He further charges that the injuries he sustained were the direct result of the gross and culpable negligence of defendant’s employés in failing to observe i he requirements of law, to properly flag tlie crossing, to ring the bell, or to blow the whistle, on the approach of the locomotive; also in failing to have a gate, or adjustable .bar, or other device to warn pedestrians and prevent their crossing the company’s track when same is approaching.

He. further specially charges that “the engineer was grossly and wilfully negligent in driving said engine * * * and was reckless in handling same, in utter disregard of the obligations imposed upon him, both in humanity and law.”

The amount demanded of the defendant as compensation for Injuries thus received by the plaintiff, is $30,000.

Defendant’s answer is that the plaintiff was injured by and through his own gross fault and negligence, and not by or through the fault and negligence of its servants or employés, plaintiff being a trespasser on its track at the time of the accident.

The case was submitted to and tried by a jury, who rendered a verdict in favor of the plaintiff for $5000, but upon rule taken for a new trial, the court awarded the defendant a new trial, and thereupon the jury found for the plaintiff a verdict of $10,000. Upon this verdict, defendant failing to obtain a new trial, a judgment was accordingly entered up and it has appealed.

Our only province, therefore, is to determine between the parties the question of negligence vel non, there seeming to be from the general purport of the answer but little doubt of the plaintiff hav - ing suffered injury and none of the happening of the accident.

And, in the determination of the question of the defendant’s negligence, as well as that of the plaintiff’s contributory negligence vel non, the principal and much mooted fact is that of the precise location of the plaintiff when he was overtaken by the defendant’s train, the plaintiff’s contention being that he was immediately on the crossing, or intersection of Clara and Poydras streets; while that of the defendant is that he was in its yard, which is situated between Magnolia and Clara streets, between the tracks numbered four and five, near the north side of the yard, and a distance of about sixty-five feet J'rom the crossing of Clara and Poydras streets.

On this contention of the defendant, it is claimed that the plaintiff was a mere trespasser, and, therefore, at fault primarily, and guilty • of negligence per se, because the whole of the property situated between North and South Poydras streets, adjacent to Clara street, is its private property, acquired by purchase and expropriation — it having been at one time filled with buildings, since demolished and re ■ ■placed and overlaid with its tracks and their switch connections, .uniting them with its varipus yards and squares of ground and depots.

To these are superadded others of minor importance which need •no particular mention now.

From the record we glean the following salient facts, viz.:

On the morning of Agust 20, 1889, the plaintiff started from his place of business on Front street, near the corner of Lafayette street, between Prieur and Johnson .streets, at the intersection Of Poydras ;and Howard streets.

When he had arrived at this place he found the banquettes were flooded with water, from a recent heavy shower of rain, and the waiting rooms of the depot being closed, he passed on the outside .and under the shed, which extends west from the depot to the intersection of Freret and Poydras streets, and continued his walk down the north side of the neutrál ground between North and South Poy-dras streets, and had either reached or neared the crossing, or intersection of Clara ^nd Poydras streéts — a distance of three blocks from the end of the sued.

At this point the defendant had in use, on the space intervening between North and South Poydras streets — which is its private property — four parallel tracks, numbered, respectively, one, two, three, and four; and, also, another track which extends transversely across ¡the other four, whereby switch connections are formed by the various engines and trains of the company with the several depot yards adjacent to the depot.

While the plaintiff was thus proceeding, he being crippled of one ■foot slightly, and the night being dark, a switch engine of the defendant shifted its position from the straight track No. 4 to the •diagonal cut-off track, and struck him on the left side of his back, inflicting a severe blow at the base of the spine and upon his hip, whereby he sustained serious injuries.

The reason assigned by the plaintiff for his being in that situation was that he was at the time a sufferer from a sore heel, as above stated, and sought to escape the water on the flooded banquettes by resorting to the dry grounds of defendant’s location and property, over which he had just walked to the intersection of Clara street when he was thus overtaken.

To this statement both parties substantially agree.

On the disputed question, i. e., the exact point on the defendant’s track at which Herlisch had arri ved when he was overtaken by its engine and violently knocked down, there is a very great disparity of statement on the part of the witnesses pro et con, those of the plaintiff emphatically asserting that lie was manifestly overtaken on the crossing, while those of the defendant are just as emphatic in asserting that the' accident happened at a distance of ninety (90) feet from the crossing on the river side of Clara street.

As a witness, plaintiff states that Avhile he was in the act of crossing Clara street, at the intersection with Poydras street, endeavoring to pass obliquely from the north to the south side of Poydras in order to reach a dry banquette on that side, and, having just reached track No. 8 on the south side, he was struck by the locomotive and. thrown about ten (10) feet into the south side roadway. By the blow received, and the accompanyng fall, he was stunned and severely injured, and rendered unable to rise and walk, and he there remained until assistance arrived. That afterward a man came running from the engine, which had passed beyond him about twenty-five (25) feet, to where he lay; and this man was followed by another, whom he took to be the engineer, who approached him and cursed him, and said he was drunk and went off again. Another man, who was standing at a corner grocery opposite, came across- and assisted the man first named to carry him over there, and presently, an ambulance was summoned and he was carried to his residence.

A careful examination of all of the testimony has fully satisfied us¡ of the correctness of his statement in the main, and it further satisfies us that the defendant’s employes were neglectful of their dutie&s under the general principles of law as well as uuder the ordinances! of the municipality, in reference to keeping a flagman at the street crossing, the exhibition of a red light, etc. And the evidence len-ders it exceedinglj' doubtful that a bell was rung, or whistle sounded.

Taken all in all, however, the evidence fairly makes out a case of negligence on the part of the company. They were evidently unmindful of the rights of pedestrians, who had equal rights to use .this crossing, as they had to pass their trains over it.

But while this is perfectly true, we are quite as thoroughly satisfied that the plaintiff was himself guilty of negligence, which directly caused or contributed to the accident by which his injuries were inflicted. He fails to state any precautions taken by himself to avoid a collision with the defendant’s locomotive, or that he either looked or listened for its approach, although the proof is clear and uncontradicted that the locomotive headlight was burning, and that although the night was dark and rainy, there was an electric light at the street corner on either side. There is some statement made to the effect that there were adjacent to the crossing some box-cars which may have impeded the plaintiff’s view, but in his testimony no reference is made to such an impediment.

The rule is a fair and reasonable one which requires of travelers, •who resort to thoroughfares of a city over which railroad companies possess a right of way, to exercise the greatest possible care to avoid collisions with their trains.

This we take to be a settled rule of law, notwithstanding a like obligation is imposed on railroad companies.

In Artz vs. Railroad Co., 34 Iowa, 160, which is a leading case and cited by many text writers as standard authority, the court expressed this view, viz.:

“ Ordinarily, the fact that the train neglected to make statutory and customary warnings does not relieve a person approaching an open crossing from the duty of lookout on approaching the road. When a person knowingly about to cross a railroad track may have an unobstructed view of the railroad, so as to know of the approach of a train, a sufficient time to clearly avoid any injury from it, he can not, as matter of law recover, although the railroad company may have also been negligent, or have neglected to perform a statutory requirement.”

See Wharton’s Law of Negligence, Sec. 384.

Another author, in treating of the same subject, says:

-■‘If a traveler” at a railway crossing of a public thoroughfare, “by looking could have seen an approaching train in time to escape,, it will be presumed, in case he is injured by the collision, either that he did not look, or if he did look, that he did not heed what he saw. Such conduct is negligence per se.” Beach on Contributory Negligence, Sec. 63.

That author further says:

“ Statutes and municipal ordinances, in every jurisdiction, prescribe-specifically the duty of railway corporations in respect to railway crossings, but no failure on the part of the railroad company to do-its duty will excuse any one from using the sense of sight and hearing upon approaching a railway crossing; and whenever the due-use of either sense would have enabled the injured person to escape-the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.” Id., Sec.. 64, p. 195.

But Mr. Wharton says: “If there are obstructions at the (street> crossing such as to make it impossible for a person approachiug to see the train, and impossible, or very difficult, to hear it, in such and similar cases it would be the clear duty of the railroad company to.ring the bell or to sound the whistle, so as to warn persons of the approach of the train; and an omission to do so, even in the absence-of any statute requiring it, would be negligence, if so found by the-jury, rendering the company liable for any injury resulting therefrom.” Id., Sec. 804, 386; Beach on Con. Neg., Sec. 386, 203; Artz vs. Railroad Co., 34 Iowa, 160.

But while the existence of obstacles or obstructions of any kind, at or near a railway crossing of a public street, under the rule thus-formulated, impose additional precautions as to prudence and care on the part of railroad companies, yet Mr. Beach states that “at an obstructed crossing it is the duty of the traveler to exercise a greater degree of care and caution than is incumbent upon him usually.” Beach Con. Neg., Sec. 65, p. 203.

Another author summarizes the duties of railroad companies and travelers respectively, in respect to public crossings at the intersection of public streets of a city and a railway track, thus:

“At the place of intersection there are concurrent rights. Neither-the traveler on the common highway nor the railroad company has an exclusive right of passage. Even on a common road travelers must look out for the approach of other vehicles passing. And this-is the more necessary at a railroad crossing, because movement on such a road is more speedy and because the consequences of such a. collision are usually so disastrous. Precaution — looking out for danger — is, therefore, a duty.” 1 Thompson on Negligence, p. 403. See also Railroad Company vs. Hellman, 30 Pa. St. 464.

The instant case is quite similar in many respects to the case of White vs. Railroad Co., 42 An. 990, wherein the-plaintiff sought to recover of the company for injuries inflicted upon her by coming in collision with one of their trains while crossing a public thoroughfare of the city of Shreveport, under circumstances far more aggravated than those apparently surrounding Herlisch. In that case we said:

“ She was unquestionably bound to look and listen, and to exercise care and caution, to avoid the possible danger suggested by the very fact of the crossing.” Vide Brown vs. Railroad Co., 42 An. 350; also:

Plaintiff’s counsel claim that the case of Curley vs. Railroad Co., 40 An. 810, is strictly applicable and should govern our decision. The facts of that case were quite different; for it appears that the train had just passed the street crossing going west, and the court say:

“ He had, we think, reason to believe that the track was clear, that the train had passed on, and that he could cross with safety; and he had no knowledge of its again returning on the main track. There were no lights to give warning of the approach of the train. The engine was not in front of the train.” Id. pp. 815, 816.

That case is exceptional, and is grounded on the facts recited, which take it out of the operation of the rule of law announced by the authors quoted from.

Our conclusion is that plaintiff was primarily guilty of negligence and is not entitled to recover, and that the judgment must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that the demands of the plaintiff be rejected at his cost in both courts.

Rehearing refused.


author: McEnery, J. Watkins, J.

text:
    No. 10,901.
    Tutorship of the Minors Henry F. and Thomas F. Scarborough. On Rule of O. H. P. Sample vs. R. N. Scarborough, Tutor.
    There is no form required for presenting the plea of res judicata.

    It is only necessary that it be specially and specifically pleaded.
    The plaintiff may plead it to defendant’s answer by way of exception.
    It is immaterial in what form presented.
    Where a tutor administers a succession, which has debts against it, with the con* sent of the creditors, he can hold the property as tutor only after he has fully administered the succession.
    If the tutor conduct the mercantile and planting business left by the deceased, and borrows money to pay off succession debts, and then to pay ofl this debt so created uses money made in the business, and then borrows money to pay off the indebtedness of the business created since the opening of the succession, this last debt is a debt against the succession and not as against the tutorship.

      A PPEAL from the Tenth District Court; Parish of De Boto. I\ Hall, J. _

      B. W. Sutherlin for Plaintiff and Appellant:
    1. The only tost to the effect of a decree as res judicata is its iinality as to tliomattors embraced m it, and its having the requisites prescribed by Art. 2263 C\ 0.; I An. 92; 19 J ax. 818; 3 An. 202; 8 An.126; 32 An. 365; 89 An. 5S8; 12 An. 197: 8-1 An 805; O. P. 606: 5 X. S 664; 6 An. 799; 94 X. H. 351, 423; 99 V. H. 261.
    2. .Minors are in law, equity and good conscience bound to restore funds, the expenditure of which inured to their benelit and the benefit of (heir property. C. 337. 346; 21 An. 374; 32 An. 958; 34 An. 410.

      J. F. Pierson for Defendant and Appellee:
    The plea of res adjudicata, when relied upon as a cause of action, must besot out in the plaintiff's or in an amended petition. O. P. 171, 8ec. 4, 419. It can not beplead by the plaintiff and tried as an exception. O. 1\ 329, 463, 476, 477.
    Kxeeptions are a means of defence usedbi/ the defendant to retard, prevent or defeat the demand brought against him. C. P. 330. Defendant must be served and time must bo allowed him to answer the plea when made by the plaintiff. Levy vs. Weber, S An. 439; Knightvs. Knight, 12 An. 896; Brown vs Brown,21 An. 462.
    Tutors can not aet as administrators of successions falling to their wards without being thereto appointed by the Probate Court, and giving security, though such tutors he the father or mother of the minors. Civil Code, 1044; Jacob vs. Tricon, 17 La 109; Tildón vs. Dees, 1 Rob 409; .Self vs. Mom's, 7 lb. 24; Atchison vs. Parks, 91b. 142; 17 Rob 75; Arthur vs. Cochran, 12 R. 43.
    i 'pon a critical review of the case of Lemon vs. (Hark, 86 An. 747, it will be found to sustain the doctrine laid down in the above eases. The dual capacity then; alluded to has reference to dual appointments mafic; by the Probate Court under Civil Code, 1044.
   The opinion of the court was delivered by

McEnery, J.

This case was before this court in March, 1891, and the pleadings are stated in the opinion in 48 An. 316.

This suit was remanded for further proceedings to ascertain whether the succession was under administration when the debt upon which the plaintiff in rule proceeded to enforce its payment was created.

The law applicable to the administration of successions by tutors in the interest of both creditors and minors was fully discussed in the opinion remanding the case.

It is not necessary to refer to this question, which is referred to in the brief of counsel.

When the case was reinstated in the lower court, in addition to the form of proceedings, the defendant put at issue the validity of the claim sued on.

To defendant’s answer the plaintiff by exception filed the plea of res jxidieata.

The defendant objected to the filing of the plea, on the ground that it was a “ replication” or “rejoinder ” to defendant’s answer, which is prohibited by Article 320, Code of Practice. The objections were overruled, to which'the defendant excepted and reserved his bill.

The plea may be presented by petition, exception or rule, or by intervention, or in any form of-proceeding, and whenever the same questions recur between the same parties, even under a different form of procedure, the exception of res judicata estops.

There is no particular form required for pleading it. It may be pleaded either by way of exception or in the answer, the only requirement being that it be specially and specifically pleaded.

There is noway in which the plaintiff can plead it unless by exception or special plea. The form is immaterial.

Plaintiff’s claim was presented for approval to the court by the defendant as tutor. All parties, the plaintiff, creditor, the under tutor and the defendant as tutor, were represented in the judgment homologating the account.

There was no opposition to the account and it became final and definitive as to all parties, and the judgment thereon operated as an effectual estoppel to all parties thus represented. While presented as the account of the tutor, it was in fact an account of his administration of the succession which he, with the consent of the creditors, was administering by virtue of his office as tutor.

The facts disclosed by the record and before the court are as follows :

Henry F. Fullilove died in February, 1885. He left an estate consisting of plantations, a storehouse and stock of goods.

He was a merchant and planter, and was engaged in the usual line of business conducted in a country store.

Henry F. and Thos. F. Scarborough, grandchildren, were his heirs.

R. N. Scarborough, the father of the children, and surviving hus band, qualified as natural tutor of his minor children.

As tutor, he took possession of the effects in the succession of Fullilove.

On March 24, 1885, a family meeting was convened on the petition of Scarborough, tutor. He represented that said succession owed about $4000, and that there were no funds on hand to pay this amount; and he also recommended that the mercantile and planting business conducted by the deceased should be continued. The family meeting advised as the tutor had recommended, and also advised that he be authorized to contract debts to the amount of $5000 in the interest of said business. The succession really owed $3703.02, and its assets were large, the indebtedness only being about 10 per cent, of the value of the succession effects. A profit was made by the business for the year 1886. Another family meeting was convened, and the tutor authorized to borrow $5000 and to continue the business.

At the end of the year 1887 he procured another family meeting, which authorized him to borrow $3000 and to continue the business to March 28, 1888.

On February 23, 1887, the dehts of the succession had been paid by money obtained from Perrin & Zeigler, of Shreveport.

All the old debts of the deceased Fullilove were paid through this firm. It took all the money in the hands of the tutor to pay this debt. In the meantime there were other debts which had been created since the opening of the succession, and only a short period before the account was filed by the tutor. There were debts created by the tutor in carrying on the business authorized by the family meeting. The defendant contends that when the debts of the succession were paid by Perrin & Zeigler this put an end to the succession and the tutor held the property of the succession for the minors, and that they, through the tutor, the moment the sueces-sion ceased to exist by the payment of the succession debts, went into possession of their inheritance from their grandfather; that all debts created after this were debts of the tutorship. The distinction makes a material difference in the means employed to secure the payment of the debt, as well as to the effect of the homologation of the final account.

To pay the outstanding indebtedness created since the payment of the debts of the succession by Perrin & Zeigler, the tutor Scarborough borrowed the money from the plaintiff. This is the amount now in controversy.

Prom the abbreviated statement of the facts in the case it will be ■observed that the efforts of the tutor in the administration of the succession were to pay its debts, which were small in amount, not exceeding $4000. The mercantile and planting operations were conducted for this purpose. In his acts of administration he found it' necessary to borrow money to pay off the indebtedness of the deceased and to continue the business to pay off the amounts that he borrowed.

If he paid the debts from money obtained from one source, others were created equal in amount in an endeavor to pay that which was borrowed. The acts of the tutor in administering for the heirs and for the creditors can not be distinguished. His administration was an entirety — one effort of administration to make money to liquidate the indebtedness.

The minors only had a residuary interest in the succession after the payment of the debt of the succession..

The old debts against the succession, it is true, were paid. But it was in the course of the administration of the succession in conducting the business left by the deceased. The debts were paid either by money borrowed for the purpose or from the profits of the business. It is immaterial from what source the debts were paid. The succession had never been freed from its debts, for as rapidly as the old debts were paid new ones were created from the necessity of paying the old ones. These were but substituted for the debts left by the deceased, and all the acts of the tutor were done in the line of administering a succession to pay its debts.

In remanding the case we said that “it does not appear from the pleadings and account that the minors Scarborough have entered into possession of their grandfather’s estate as an inheritance, yet upon issue joined and trial had the fact may be made to appear. Until this fact is made to appear affirmatively we must hold that a tutor acting as administrator of an open succession does not possess apparently for the heirs, and that the property will not pass to him as' tutor until his administration as such is terminated.”

The account filed by the tutor was an exhibit of his administration of the succession. It showed debts still existing against the succession.

It was a provisional account.

Until the tutor’s administration of the succession is terminated the property will not pass to him as tutor.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that the rule granted herein be made absolute, and the prayer of the plaintiff in rule be granted.

Concurring Opinion.

Watkins, J.

The following is an extract from a brief of defendant’s counsel at page 28, viz.:

“We most respectfully submit that the court was drawn into error as to the true meaning of the opinion in the case of Lemmon vs. Clark. Upon a critical analysis of that case we come to the conclusion that the doctrine there announced is the reverse of the conclusion drawn from it by the court in the opinion in this case. We do not find that the court there admits the doctrine that an appointment and qualification of one as tutor authorizes him, under such appointment and qualification, to act also in the- different capacity of administrator of a succession falling to his wards, without another appointment and qualification in such other capacity also.”

Reference to our opinion will show that the paragraph immediately preceding the one selected and quoted by counsel does not state that the case of Lemmon vs. Clark recognized the right of a tutor, ex virtute offieii, to administer a succession.

Indeed, it did not present that question for the decision of the court at all, nor does our previous opinion say that it did. It was a case of heirs in possession, as Soye vs. Price was.

But ill deciding that case, the court, foi purpose of illustration, merely announced the existence of the rule stated by us, saying :

“ The cases quoted by counsel for plaintiff are all cases in which the tutor held in a dual capacity of tutor and administrator,” etc.

That was all the use our previous opinion in this case meant to make of the quotation from Lemmon vs. Clark.

The sequence of counsel’s argument is, that the tutor having been appointed and qualified as such, and never having been appointed and qualified as administrator of the succession of the deceased, can not represent the succession, or its creditors; and that, acting as tutor alone, plaintiff’s account was, necessarily, one of tutorship per se, the homologation of which was only prima facie proof as against his wards; and, therefore, as a creditor whose claim had been acknowledged and placed thereon, plaintiff had no right to proceed by rule under Article 990 of Code of Practice, as he has done, for a sale of property to pay same.

But I think our opinion is correct in announcing, as a proposition well sustained in our jurisprudence, that a duly qualified, bonded and acting tutor may, ea; virtute officii, administer a succession coming to his wards without any appointment as administrator thereof, and, in so doing, perform the dual functions of tutor and administrator.

True it is, as stated by counsel in his brief, that the contrary was held to be the rule of jurisprudence in many early cases, some of which he cites, viz.: Jacob vs. Tricou, 17 La. 109; Tilden vs. Dees, 1 Robinson, 409; Atchison vs. Parks, 9 Robinson, 141; Self vs. Morris, 9 Robinson, 24; Brode vs. Malden, 17 La. 75; Arthur vs. Cochran, 12 Robinson, 43.

But it has not been maintained in 'opinions of more recent date, and he cites none to that effect.

In Martin vs. Dupre, 1 An. 23, it was held that a tutrix “had power to administer the estate as such.” In that case the validity of a sale at public auction made by the tutrix was maintained, against the demand of a subsequently appointed administrator for its nullity.

In Bryan vs. Atchinson, 2 An. 463, the question was whether a tutor, as such, might administer a succession, and as to his capacity to stand in judgment in a suit for the sale of property, so as to make the decree of sale binding upon the heirs and creditors.

The court say: “ It is not pretended that any creditor in this ease ever required the appointment of an administrator, and the judge was not bound to appoint one; so that if the tutrix does not represent the succession, creditors-eouid not enforce their rights; and commenting on that proposition, they say: ‘ there can be no doubt that the succession was properly represented.’ ”

This declaration was made in answer to the complaint of a subsequently appointed administrator of that succession.

In Menget vs. Penny, 7 An. 134, the court held, upon the principle announced in Bryan vs. Atchinson, that “ the defendant-, as tutor to his minor children, was the representative of the succession and as such the proper party defendant in plaintiff’s suit.

In Hoover vs. Sellers, 5 An. 180, it was held that “ it is a well settled doctrine that a succession inherited by minors may be administered by their tutors.”

In Hair and Labuzan vs. McDade, 10 An. 534, it was held that “as tutrix (plaintiff) had the right to administer upon the estate belonging to the minor children without taking out letters of administration unless required to do so by creditors.”

In State vs. Leckie, 14 An. 641, the foregoing opinions were cited and approved, the court holding this course of procedure to be an exception to the general rule, to be applied if creditors do not require the appointment of an administrator.”

This is the established rule of our jurisprudence, and it has been sustained by this court in many subsequent cases, and I had no thought of it being disputed. Vide succession of Webre, 16 An. 420; Ducote vs. Bordelon, 24 An. 145; Succession of De Lerno, 34 An. 38.

All of the foregoing cases, with the exception of the last three, were cited in the former opinion of this court in this case; and I respectfully submit that they furnish ample foundation for the opinion expressed, as counsel would have learned had he taken the precaution to review them before writing his brief.

I concur in the present opinion of the court, fully.