text:
    No. 9176.
    The State ex rel. P. A. Murray vs. H. L. Lazarus, Judge of Civil District Court, Parish of Orleans, Division E.
    The ruling of a district judge refusing a preliminary injunction is reviewable on an application for a mandamus.

      A suspensive appeal ftom sucli ruling would afford no adequate relief.
    In the exercise of the supervisory powers vested in this Court by the present Constitution, relief can be allowed in cases of denials of justice, in which, under previous Constitutions, none could he awarded.

      A mandamus lies to compel a district judge to grant an injunction in limine, where a clear case is presented and the requirements of the law have been complied with and whore injury would result were the apprehended act, sought to he prevented, not arrested.
    The writ may issue at the discretion of the court where the law has assigned no adequate relief by the ordinary means and where justice and reason require that some inode should o-cist of redressing a wrong, or an abuse of any nature ; also, even where, a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the administration of justice may suffer,
    The articles of the Code of Practice, dormant under previous Constitutions have been vivified by Article 90 of the present Constitution and serve as guides, in the exercise of the supervisory jurisdiction of this Court.
    In a proper case, this Court may issue a restraining order which will produce the effect of the injunction asked, had it been granted.
    There is no error in refusing an injunction where the facts alleged are insufficient, the petition disclosing no cause of action.
    A IMPLICATION for Mandamus.

      G. L. Bright for tlie Relator.

      Bayne & Denegre for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandemws.

The relator claims that he was arbitrarily refused an injunction on the face of a petition entitling him to one, duly sworn to and accompanied by a proper bond. He avers that his petition is in due form, that the judge had no discretion to exercise and was hound to grant the writ as a matter of right; hut that he illegally and wrongfully refused the same.

He annexes the' petition to the present application.

That petition relates- substantially, that the petitioner has complied with a judgment of this'Ccrttrt forbidding him from occupying and using certain premises of his, for the purpose of manufacturing cisterns, and from accumulating therein inflammable matter, until the buildings shall have been put in a condition to afford security against fire, and ordering Mm to remove from said premises sucli inflammable materials therein: that the plaintiff in the ease has threatened to execute said judgment and to disturb him in the use and enjoyment of the property which belongs to him. The petition concludes with a prayer that a preliminary injunction issue, that after due proceedings he be declared to have complied with said judgment and that the injunction be perpetuated.

The district judge returns: That he has declined the relief asked, after hearing the parties on a rule nisi, that there is no suggestion, in the petition that any process or writ has been applied for, or issued by the defendants for the execution of the judgment, nor that they propose any action, except the general statement that they threatened to execute said judgment, without indication when it was done, or that any action was contemplated, except through the court; that if he has erred in the exercise of the discretion vested in him, his error can be revised on appeal only, etc.

So that, two question are presented:

1. Whether the alleged error is revisable only on appeal.

2. Whether the pase presented is one in which a mandamus should issue.

I.

It is no doubt a rule long settled, that generally a mandamus does not lie to reverse the judgment of an inferior court, and to command the judge thereof to render a particular judgment. The last rulings on that question are to be found in 28 A. 905 and in 31 A. 794, in both of which it was distinctly determined that a mandamus could not issue to compel a judge to grant an injunction, when he had refused one.

It has, however, been held that, where a party presents a proper petition for an injunction, which complies with all the requirements of the C. P., it is the dm,t\j of the judge to whom it is submitted, to grant the writ and that the relator is entitled to it as a matter of right. 29 A. 796; ¿¡0 A. 798; O. B. 49, 469. Those were not, it is true, cases in which a mandmnus was asked; but what was there said is not She less significant, as the announcements made were designed to secure important rights in litigants and to guard against oppressive denials of justice by those entrusted with the administration .of law. ;

The rulings made, denying the veil of by mandamus from the fearliest days óf jurisprudence'to the present time in this State; rest upon the theory that this Court was without power' to issue it, as its .jurisdiction was appellate' only. It has, nevertheless, sometimes ..assumed, notwithstanding its restricted sphere of action, in eases deemed of great necessity, to allow the remedy and to command specific action by judges of lower courts.

Thus in 14 L. 478, the court has issued a- mandamus directing a probate judge to make an appointment of an undertutor. In 4 R. 50 it said : That a mandamus could issue, even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such immediate injury, or mischief, as ought to be prevented, to enable this tribunal to command inferior courts to act in cases where delay will cause damage and injustice. In 7 A. 126, which was an application for a mandamus to compel a judge to reduce to writing, a judgment verbally rendered and, in due course, to sign it, while, declining the lelief the court said, that it could properly interfere only where there is a clear abuse of discretion, fending to create, a manifest failure of justice and permanently frustrate the right of a litigant to have his cause placed in such a condition as to enable him to have the benefit of the appellate jurisdiction of this Court which the Constitution has conferred upon it. It has the power to award writs of mandamus in cases within that jurisdiction, for the necessary maintenance of it. In 17 A. 189, it has ordered a lower judge to decree the execution of a will. We neither criticise nor approve those rulings.

In the case of State ex rel. Padron, 31 A. 794, in which a mandamus was asked to compel a judge to issue an injunction, decided by our immediate predecessors, it was said, that Articles 820 and 821, C. P., are sufficiently broad and would authorize the writ, if the court liad not been restrained by the constitutional provision, which declares that its jurisdiction is appellate only; thus intimating that hut for that restriction, and had it a more enlarged jurisdiction, it could grant the relief asked, on a proper showing.

Since that opinion was rendered, the condition of things has changed. The Constitution of 1879 has conferred on this Court not only an appellate, but also an unqualified supervisory jurisdiction over all inferior tribunals, thus enabling it to act, when preceding courts of last resort, had proved powerless so to do.

In the case of State ex rel. City, 32 A. 550, in which the present Court first had occasion to consider the object and extent of Article 90 of the Constitution, which confers-this supervisory control and jurisdiction, it was deliberately announced, after review of all anterior laws and jurisprudence that, as under the existing Constitution the previous restriction as to jurisdiction does not so broadly operate, the Court was perhaps more at liberty to give effect to these articles of the Code of Practiee and it has been held that, in a proper case, where the requirements of the law had been complied with, the right to an injunction is absolute and the judge without discretion to refuse it — mandamus might be a proper remedy in a case clearly sufficient on the facts and where no question of law is involved.

It was there, further said, that the context of Article 90 makes it clear that our revisory power should only be expressed through the medium of the stated writs; that the articles of the C. P. regulating them are broad enough to cover many cases which were excluded from the cognizance of the late Supreme Court, under the provision of the former Constitution, declaring that the Supreme Court shall have appellate jurisdiction only. Under the interpretation of that provision (Art. 90) it was held, that this Court is emancipated from the restraint and that it may issue said writs, in all cases covered by the provisions of the Code of Practice, both in appealable and unappealable cases, under a proper .showing. See also 32 A. 555, etc.

So that, the articles of the Code of Practice, which had remained dormant — as it were, a dead letter — have since been vivified. They now aro in full force and effect, assisting and guiding us in the administration of justice, -in the exercise of our supervisory jurisdiction.

Referring to that Code, the wise provisions of which have long slumbered, we find it distinctly stated that the object of the writ of mandamus is to prevent a denial of justice; that the writ should, therefore, be issued where the law has assigned no relief by the ordinary means and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever. It arises, says the Code, at the discretion of the court, even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the administration of justice may suffer from it. C. P. 830, 831.

In cases like the present one, in which an injunction was refused in limine, after hearing on a rule nisi, it has been held that an appeal lies; but it has never been decided that such an appeal, even if allowed as a suspensive one, would operate as the desired injunction whouldliave done, had it been granted. - Indeed, it is hard, not to say impossible, to conceive how a suspensive appeal from a decree refusing an injunction can produce the effect of preventing the act which the injunction sought would have arrested had it been allowed.

It would be highly dangerous to the administratin': of justice to give to an appeal from an order refusing an injunction, the effect of preventing the act which the injunction, if issued, would have arrested, for in all cases in which an injunction would be declined, even rightfully, lawful acts would be invariably suppressed. No doubt an appeal lies, but if termed suspensive, it is barren of effect in that sense.

So that, if there be a remedy it is not an adequate one, and if a party-entitled to an injunction is refused the same, he remains with a right but without a remedy — at the mercy of a district judge, unless this Court can interfere and relieve him from the effect of a denial of justice.

Where a clear case for an injunction is presented, it is the duty of the judge to grant the relief. He has then no more discretion to exercise than when seasonable application is made and a proper bond tendered for an appeal in an appealable case.

In such a. case it is manifest that justice and reason require that some mode should exist of redressing at once the wrong or the abuse of power on the part of the district judge, even if there be other means of relief, or the slowness of ordinary legal forms would produce such a dely that the administration of justice may suffer from it.

On this branch'of the case, we, therefore, conclude that this Court has jurisdiction to issue a mandamus to compel a district judge to allow au injunction in Umine, whenever a proper state of facts is presented and all the requirements of the law have been complied with.

In such case, this Court may grant a restraining order which will operate provisionally as the injunction asked but declined, would have done had it been allowed.

II.

But it does not follow that, because this Court has such power to interpose its authority in cases of emergency and denials of justice, it will thus interfere, whatever be the case presented. It will issue the writ in its discretion, according to the exceptional features of each case submitted.

In the present instance the district judge has adduced satisfactory reasons, resting both on an absence of facts and a consideration of the law, for refusing the injunction asked, which are substantially, that the petition is deficient, as it discloses no cause of action. We do not propose to elaborate those reasons which are indicated in the beginning of the opinion and which we deem amply sufficient to exonerate the respondent from the charge of an arbitrary, illegal and wrongful denial of justice.

It is, therefore, ordered that the restraining order herein made be rescinded and that the application for a ■mcvndamvas be refused at the cost of relator.

Rehearing refused.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8929.
    Margaret Moclair vs. James Leahy, Her Husband.
    Cruel excesses of the husband, towards his wife, consisting in abusing, cursing and striking her, refusing her food and subsistence, medicine and medical aid during her sickness, when shown to be able, with sufficient means to furnish the same, are causes which entitle the wife to a separation from bed and board.
    PPEAL from the Civil District Court for the Parish of Orleans £jL liightor, J.

      Jos. H. Spearing for Plaintiff and Appellant.

      If. H. Bryan for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues her husband for separation from bed and board, on the grounds of ill-treatment and cruel excesses and outrages.

His defense is a general denial, followed by the charge that the wife’s irascible temper and violence of character have been the sole causes of their disagreement.

The wife has appealed from a judgment rejecting her demand.

The evidence shows that the defendant has cruelly ill-treated his wife, towards whom he committed excesses and outrages which compelled her to seek refuge at the hoxrse of her parents.

The parties were married in October, 1881, and the ill-treatment of the wife began in May following, hardly six months after their marriage, at a time when conjugal relations, it ever, run smooth and harmoniously. •

It appears from the record, that from the beginning of their quarrels to the time of the institution of the present suit, the parties had no more peace together, and that the husband’s conduct became absolutely unbearable.

Among other cruel excesses, he is shown to have refused her all means of subsistence, even food, although, as a skilled mechanic, he was earning ample wages ; by reason of which she was compelled to go to her father’s house for her meals. He thus became irritated at her frequent absence from home, to the extent of refusing to admit her in the house on her return in the evening from her parents’ domicile. It is also shown by the evidence that, during a spell of sickness with which she was afflicted, he refused to procure medicine or medical aid, for which she had recourse to her friends and relatives. During his ire and frenzy, he broke the furniture, cursed and used foul language against his wife, whom he struck on two occasions.

A woman subjected to such treatment is justifiable in taking refuge with her parents and is entitled to the intervention of the laws enacted for the protection of ill-treated and abused wives.

An attempt was made to show that the wife had a bad, irascible and uncontrollable temper; and that on one occasion her conduct had become scandalous through her violent refusal to allow men to remove the furniture from one house, to another, under her husband’s orders.

The facts are that she refused to allow furniture, which she claimed as her own, to be removed to a house, where she had determined not to follow her husband, after his conduct and excesses had rendered their living together insupportable.

We are satisfied that all the troubles of that unfortunate household are wholly attributable t'o the fault of the husband and that the wife is entitled to relief.

We note her prayer for alimony and'for a liquidation of the community interests, but the evidence is not sufficienc to allow us to intelligently dispose of that issue in the present proceedings. We reserve her rights to press her claims thereto in a separate action.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and adjudged that plaintiff do have and recover judgment of separation from bed and board against her husband, with her costs in both courts, and with the reservation of her right to alimony and the liquidation of the community in a separate action.

Rehearing refused.


author: Todd, J. Bermudez, C. J. Fenner, J. Roché, J.

text:
    No. 8870.
    Mrs. C. Honold vs. Victor Meyer et als.
    Plaintiff owned certain corporation stock, which stood on the books of the oorporation-in hername and for which she held a certificate also in her own name. She gave a power of-attorney to an agent to sell and transfer the stock. The agent fraudulently pledged the stock in favor of defendants, to secure the debt of a commercial firm of which he was a member. The pledge was effected by means of a transfer to defendants on the books of the company, made by virtue of the power of attorney, and a certificate was issued in the name of defendants. Defendants had no knowledge of the fact that the stock belonged to plaintiff. They accepted the transfer on the faith of the certificate issued in their own name. Keld] that they were not bouud to enquire into plaintiff’s title, and that the latter cannot recove r.
    APPEAL from tbe Civil District Court for the Parish of Orleans. Tissot, J.

      T. J. Semmes & JPayrie and Henry Denis for Plaintiff and Appellant.
    1. An agent authorized to sell cannot pledge his principal’s property, to secure his own debt. Story, Agency, §§ 78, 225, 228; Kent, 2 vol. p. 626, etseq.; Wharton, Agency, pp. 193, 745, et seq.¡ C. C. 3145; 25 A. 31319 A. 368; 19 A. 300; 10 A. 70, and cases cited.
    2. The maxim: JSn fait de meiibles la possession vaut titre, is no part of the law of Louisiana. It was unknown to the Homan law. Troplong, Prescription, vol. 2, pp. 556 and 560; Duranton, vol. 15, § 385. It was introduced in the Napoleon Code, as the heading of Article 2279. In adopting Article 2279 of N. C., we rejected in Lousiana its heading. See Code of 1808, p. 488, Articles 75 and 76; Code of 1825, Arts. 3506-7. In Louisiana the right of revindication of movables from a bona fide purchaser, is well established. 9 Hob, 525; 10 Hob. 55; 11 Hob. 16; C. C. 2452; Stern Bros. vs. Bank, 34 A 1119, and cases cited.
    3. An exception to the rule is when the true owner has put on.his agent the indicia of ownership. 6 A. 7, 313, 516; 5 A. 73, and oases cited. The owner of stock of a corporation does not put on his agent the inditeia of ownership, if he does [not transferthe stock to him or assign his certificate to said agent, or in blank. Such owner does not exhibit his agent to the world as the apparent owner, by simply giving him a power of attorney to sell. 74 N. Y. 226; 46 N. Y. 325; 49 N. Y. 289; Moores vs. Citizens’Bank of Piqua, just decided by United States Supreme Court.
    4. A pledgee cannot prescribe. C. C. 3175. Prescription of movables, only applies to cor poreal movables and obligations to hearer. Marcadé, Prescription, p. 254; Laurent, vol, 33, p. 580; Troplong, Prescription, vol. 2, p. 583, Prescription suspended in favor of the wife when action prejudicial to husband. C. C. 3525; 2 A. 756, 834,- 34 A. 822.

      Julius Aroni, £. F. Jonas and Hrecmx & Hall, for Defendants and Ap-pellees.
    1. One who has conferred upon another, by a written transfer, all the indicia of ownership of property, is estopped to assert title to it, as against a third person who has in good faith acquired for value, from the apparent owner. Dos Pasaos, p. 601, and note; McNeil vs. Tenth Nat. Bank, 46 N. Y. 325; Moore vs. Metropolitan National Bank, 55 N. Y. 46; Berwick vs. Marye, 9 Ney. 312.
    2. Stock assigned as security of a negotiable note, transferred before maturity, is taken by the assignee free from all equities, on the ground that the security partakes of the nature of the debt. Dos Passos, Stock Exchanges, p. 578: Kemiicot vs. The Supervisors, 16 Wallace, 464; Carpenter vs. Logan, 16 Wallace, 275; Bateville Institute vs, Kaufman, 18 Wallace, 153 ; 9 Wisconsin, 504-511.
    3. The power to sell includes the power to pledge. Clark & Brisbin vs Bouvain, 20 A. 71.; Davidson & Hill vs. Bodley, 27 A. 150.
    4. Pledge may be made legally under form of sale. Wolf vs; Wolf, 12 A. 531. and author ties cited.
   The opinion of the Court was delivered by

Todd, J.

This is an action on the part of the plaintiff to recover of the defendants one hundred shares of stock of the St. Charles Bail-road Company, or its value, and dividends on the same.

The defense made to the action is substantially, that the shares in question were transferred on the books of the company, for a valuable consideration, to Meyer, Weis & Co., the defendants, then composing-said firm, who received the certificate of stock therefor, in the regular course of business, without knowledge that plaintiff had any interest therein, and it was not incumbent upon them to find out, touching such interest.

They further say that the said certificate of stock was issued to them for the protection of Baring Brothers & Co., of England, and was, immediately upon its receipt, turned over to the agents of said firm in New Orleans, who accounted for the same; that the stock had long since been sold to other parties, and defendants were unable to say who were now the owners of it. They further allege that the transfer of the stock to them was made by a party fully authorized by plaintiff to make it, and that the certificate having been issued and received in the usual and regular way, their title thereto was perfect. The de-maná was resisted on other grounds unnecessary here to mention.

From a judgment in favor of the defendants the plaintiff has appealed.

The facts hearing on the controversy are briefly these:

There was a commercial partnership engaged in business in the city of New Orleans during the years 1877 and 1878, under the style of Ho-nold & Co., composed of the husband and the son of the plaintiff. The son 'held a power of attorney from the plaintiff to sell the stock of the St. Charles "Railroad Company, which plaintiff owned at the time and which stood in her name on the books of the company, being the stock which forms the matter in dispute in this case, and said power of attorney contained full authority to transfer the stock.

This agent did make a transfer on the hooks of the company of the stock in question to Meyer, Weis & Co., the defendants’ firm at the time, and a certificate for said stock was thereupon issued by the company to said firm.

The validity of this transfer is denied by the plaintiff, on the grounds, substantially, that the transfer in question was really a pledge of the stock for the debts of Honold & Co., and the agent had no power to pledge the same for his own or his firm’s debt, and that this property of the plaintiff could not be used to pay her husband’s debts or that of the firm of which he was a member.

It is undoubtedly true that this transfer was made to secure a contingent liability of Honold & Co., which it is unnecessary to explain; and there is no evidence to show that it was with the knowledge and consent of the plaintiff.

It is just as true, however, that Meyer, Weis & Co. liad no knowledge at the time of the transfer of plaintiff’s interest in the stock; that the first and only information they had of their title to the stock was furnished by the certificate issued to them by the company after the transfer had been made to them on its books, conveyed in a letter to them from Honold & Co., stating the purposes of the transfer; that Meyer, Weis & Co. accepted the transfer and gave a valuable consideration for the stock, and that it went into the hands of other parties immediately thereafter and was subsequently sold, in furtherance of the purposes for which the transfer was made.

Under this state of facts, the important question arises whether the plaintiff is entitled to recover of the defendant this stock, or its value.

A mature consideration of the question in all its bearings, and an exhaustive examination of the authorities bearing on it, lead us to the conclusion that she is not entitled to recover.

It is true that plaintiff was the undisputed owner of the stock, and the same stood in her name on the books of the company. It is also true that she had given to her agent no authority either to sell or pledge it for his own debts or those of his firm, and there can be no doubt that if Meyer, Weis & Co. had received this stock directly from the hands of the agent, after being made acquainted with plaintiff’s ownership of the same, and after an inspection of the agent’s authority or power of attorney in the premises, and of the actual consideration for which it was received, they could have acquired no right to the stock that could prevail against plaintiff’s claim thereto.

For in such case defendants would have been apprised of plaintiff’s ownership of the stock and the want of authority in the agent to dispose of it for the purposes proposed. Just as little would they have been protected if they had acquired it from the agent directly, in the absence of any authority to sell, relying on his possession of the stock.

Such, however, was not the case. Meyer, Weis & Co. did not acquire the stock, and the evidence of their title thereto, solely and directly by the act.of this agent, and immediately from him. There was another agent or intermediary in the affair, forming- an important factor therein and whose participation in the matter exercises a con-troling influence upon the legal result and the conclusion to which we have arrived.

We refer to the company itself. It was the depositary, custodian and guardian of the plaintiff’s stock, and as such an agent of the plaintiff, without whose consent and co-operation the transfer in question could not have been effected.

To the company the agent and son of the plaintiff submitted a power of attorney from his principal, giving him full authority to sell and make a transfer of the stocK. On the faith of that authority the transfer was permitted and recognized as valid by the company, and on the faith of the transfer thus made by due authority the company, as in duty bound, issued a certificate for the stock to the transferees, Meyer, Weis & Co., thereby and therein declaring them to be the owners of the stock. No possible blame could attach to the company for its acts in the premises. The plaintiff’s counsel admit this, when, in their brief, they say (quoting):

“Upon the simple inspection of his power of attorney, the company was bound to permit the transfer on its books, and as a consequence thereof to issue a certificate to the transferee.”

How then can we impute any fault or negligence to the defendants for acting on the faith of a transfer made by due authority, and of a certificate issued in compliance with a legal requirement, recognizing the transfer as made by competent authority and as conveying the ownership of the stock to the transferees'? We do not think they were in fault, and they were justified in believing they were the lawful holders of the stock and acting on that belief. The fault is to be found for the loss incurred by plaintiff not in the company, nor in Meyer, Weis & Co., but in the agent selected by her and charged with the responsible trust of disposing of the property. In truth, the whole question would seem to resolve itself into this: whether the loss should fall on Meyer, Weis & Co., innocent parties in the transaction, as we have shown, and who gave their money or credit for the stock, rather than on tile plaintiff, when it is evident that the loss was caused by the act of an unfaithful agent, chosen by her, and who used the power with which lie was entrusted for his own personal gain. We think there could be but one answer to this, an answer supported by the highest legal authority and elementary in principle. Thus we read in Smith’s Mercantile Law, p. 158:

“He wlio accredits another' by employing him, must abide by effects of that credit, and will be bound by contracts made with innocent third persons in the seeming course of that employment, and on the faith of that credit, whether the employer intended to authorize him or not, since where one of two innocent persons must suffer by the fraud of a third, he who enabled that third person to commit the fraud should he the sufferer.”

xVnd -we are further supported in the conclusion we have reached touching'the rights of the defendants under the transfer and the certificate for the stock issued by the company after such transfer, by several adjudications in cases bearing a striking' analogy to the instant one.

Thus, Chief Justice Taney, in deciding the case of Lowery vs. Bank of Baltimore, says :

“ The party to whom it is transferred rarely, if ever, sees the entry, and relies altogether upon the certificate of the proper officer of the hank, stating that he is entitled to so many shares, that is to say, so many shares have been transferred to him by one who had a lawful right to make the transfer.”

He then refers to the ease of Davis vs. Bank of England, above cited, and goes on to say: “And as it (the transferee bank of the stock) paid a valuable consideration, and had no notice, actual or constructive, of any violation of trust, upon which the transfer could be imperiled in equity, it had a right to sell the stock for the payment of the note for which it was pledged and to make the purchasers a valid title. A different rule would render the right of every purchaser of stock in a bank insecure or liable to doubt, and greatly impair its value, and would, moreover, seriously disturb the usages of trade and the established order of business in relation to this subject, in á manner highly injurious to the community; for purchasers always rely on the certificate of the bank in which it is held as conclusive evidence of the ownership. Most commonly, the purchase is made through a broker, and the buyer does not know who is the,seller and who makes the transfer; the certificate of the bank tells him that lie is entitled to so many shares, and he pays his money upon receiving the certificate, without further iuquiry. It would be unjust and inequitable to charge the stock in his hands with any equitable encumbrance or trust, however created, which was not known to him at the time he paid his money.”

(See, also: Davis vs. Bank of England, 2 Bingham, 393; 9th Eug. Com. Law R. 451; Hulbrook vs. Zinc Co. 57 N. Y. 616; Salisbury Mills vs. Townsend, 109 Mass. 111; National Bank vs. Watsontown Bank, 105 U. S. (15 Otto) 217.)

We have examined the autbei'ities cited by the plaintiff’s counsel, and the examination has satisfied us that they are not opposed to the doctrine above announced. They refer mainly to cases when the purchases of the stock or other like property were made from persons not the owners and having no authority to sell, and when the buyers acted on the faith of the possession alone of the sellers. This Court has held in the case of Stern Bros. vs. Germania Bank, 34 A. 1119 — a case also cited by the plaintiff’s counsel as supporting her pretensions — that under such circumstances the purchaser would not be protected as against the true owner; but the principle announced in that and other similar eases has no direct bearing on the instant one.

For these reasons the judgment of the lower court is affirmed, with costs.

Dissenting Opinion.

Bermudez, C. J.

The dual question presented in this case is simply:

Whether the agent of a married woman can concoct with her husband, who, with him, forms a commercial partnership, so as, without her knowledge or consent, under a power to sell, pledge stock belonging to her, in favor of a creditor of theirs, as security of their indebtedness to him; and, whether such creditor is or not bound, before accepting the pledge, to inquire into the right of the pledgeor, or transferror, to dispose of it as a pledge under the guise of a transfer.

The evidence leaves no doubt that the certificate of stock in the name of defendant was not designed to vest a title of ownership, but merely to stand as a pledge. It also shows that the agent of the plaintiff had no power to pledge the stock, although he had that of selling it.

It is impossible not to answer the first inquiry in the negative, and the •second in .the affirmative.

It is elementary that an agent has no right to give the property of his principal in payment of his individual indebtedness. It is likewise rudimentary that a husband cannot take the property of his wife and use it in extinction of his debts.

It is likewise undeniable that an agent vested with the power to sell, has no authority to pledge or mortgage. Our law requires two distinct powers to be sj>eeially conferred. The power to sell does not imply that to encwnher.

Those propositions do not seem to be denied or even questioned; but it is contended that a third innocent party is not to be made the victim of a faithless agent and of a dishonest husband, under such circumstances, unless knowledge be chargedj.gainst aud proved upon him.

Knowledge is actual or constructive. In instances like the present one, actual knowledge, as a rule, cannot be proved. It suffices if constructive knowledge, is shown; that is, knowledge which should and could, and has not been, procured.

It may be that, as regards movables, pirrchasers as a rule, are not bound to inquire into the title of the vendors, although the law has provided that the true owners may in some specified cases, recover them even from tvu innocent purchaser. If such be the law, it is only such in cases in which the particular effect is one which can be owned without a written title. It surely is not the law, where the effect is one which cannot be owned without such title.

Of that class are shares or stock of a corporation. No one can be a shareholder, or stock owner, of a corporation like that mentioned in this controversy, unless his title to the shares or stock be evidenced l)oth by the books of the corporation and by the certificate which issues to him, in writing.

No one is relieved from the obligation of knowing who is vendor, who his transferror is, and what the title is to the thing sold or transferred, unless at his risk and peril. The regularity of the transfer on the books of the corporation and the exoneration of the company from all responsibility, do not dispense him from the duty of instituting the inquiry.

Companies may be liable for issuing certificates to innocent parties, where the transfer is made by one having no authority to effect it. Such innocent parties may be satisfied with the validity of the transfer because of the warranty of the company; but it by no mean's follows that, whore the corporation' is in n'o 'way in fault; such parties should not have ascertained who their vendor or transferror was.

When.the certificate of stock in question was handed by one of the firm, or by both members of the firm, to the defendants, nó considera-t-ion actually passed for it. It was a simulated transfer, designed solely to secure a pre-existing indebtedness of the firm to the defendants; and the latter necessarily, unquestionably knew it, for they subsequently sold the stock by direction of the firm debtor, applying the proceeds to the extinction of the debt and passing same to the credit of their debtor. They had no reason to suppose that the firm owned the stock. They should have inquired; and had they done so, they would have ascertained, by a simple inspection of the transfer, that it had been made by an agent of the property of his principal to secure an individual creditor of himself and firm.

Suppose, for a moment, that if the property transferred, instead of being, as it was, stock, had been real estate; that plaintiff’s agent had handed to defendants an authentic certificate from a notary or the conveyance officer, showing the sames to be in their name; and suppose the plaintiff had subsequently revendicatcd the land, could she have been defeated on the ground that the defendants were in good faith and not bound to examine or inquire into the title? Surely not. No difference between the two cases is discernible, as in both the title must be evidenced m writing, and the right to transfer, in like form.

Conceding that both the plaintiff and the defendants are innocent, it is evident that either the former or the latter is to bear the loss.. Which of them should sustain it?

The rule of law is, that whenever one of two innocent persons is to support a loss, that one should incur it who could more easily have avoided it and who did not do so.

What is it that the plaintiff could have done and has not done? What is it that the defendants could have done and have not done?

The plaintiff could do no more than she has. The defendants could with perfect ease have inquired, as they should have done, into the title of their transferror. Had they done so, they never would have accepted the transfer to them of plaintiff’s stock; but it must be acknowledged that they had nothing to make by the inquiry, that they had everything to gain by omitting it, for they had the company as a war-rantor, and therefore it is that they rested in perfect tranquillity and security.

It is clear to my mind that in law and equity the plaintiff should recover.

I, therefore, think that the judgment should be reversed.

On Application eoe Rehearing.

Fenner, J.

Further argument and consideration have only served to confirm our conviction of the correctness of our original opinion.

The transfer of the stock on the hooks of the corporation, upon surrender of the old certificate, by an agent of plaintiff fully authorized to transfer the stock, and the issuance of the new certificate by the company to the transferee, who had no notice, express or implied, of any fraud or irregularity, and who in good faith incurred liability upon the strength of the title to the stock thus evidenced, operate together as an impregnable protection to defendants against any claim on the part of the plaintiff.

The transfer of this stock by an agent of plaintiff expressly authorized to transfer, was, under the elementary principles of the law of mandate, the entire equivalent of a transfer by the plaintiff herself, and she has no more right to question the title of the transferee than if she had personally executed the transfer.

It was the corporation which was charged with the duty of determining whether the transfer was authorized or not. If it permitted an unauthorized transfer, it remained liable to the plaintiff for her stock or its value, and would have been equally bound to hold harmless the innocent holder for value of the new certificate. If the transfer was authorized, then the corporation and the holder of the new certificate are alike protected.

It does seem superfluous to point out the difference.between this case and that of Stern Bros. vs. Germania Bank, 34 A. 1119, since they have no conceivable resemblance. The agent in that case was absolutely without authority to transfer or divest in any manner the title of his principal to the property which he assumed to pledge for his own debt. Another case relied on is that of Moores vs. Citizens’ Bank, recently decided by the Supreme Court of the United States, but it has no application here. That was a case where the cashier and transfer agent of 'a bank had fraudulently issued a certificate of stock to his sister, falsely-representing to her that it was a transfer of stock held by himself in the bank, and upon the faith of the certificate had borrowed money from her. He held no stock, transferred none on the books of the bank and surrendered no certificate, which under the by laws of the bank and under the very terms of the certificate issued to the party, were conditions precedent to valid transfer and to the issuance of the new certificate.

The Court said: “She relied on his personal representations, as the party with whom she was dealing, that ho had such stock; and she trusted him as her agent to see the proper transfer thereof made on the books of the bank. Having distinct notice that the surrender and transfer of a former certificate were pre-requisites to the lawful issue of a new one, and having accepted a certificate that she owned stock without taking any steps to assure herself that the legal pre-requisites to the validity of her certificate, which were to be fulfilled by the former owner and not by the bank, had been complied with, she does not, as against the bank, stand in the position of one who receives a certificate of stock from the proper officers without notice of any facts impairing its validity.”

To deprive the case of any application to the one in hand, it is sufficient to say that “all the pre-requisites to the validity of the certificate” had here been complied with. The stock did exist; it had been transferred on the books of the bank; the old certificate had been surrendered; and, therefore, the defendant here did “ stand in the position of one who receives a certificate of stock from the proper officers without notice of any facts impairing its validity.” What that position is, the opinion of the Court in the case referred to sufficiently indicates, and is there formulated in the following general proposition: “A certificate of stock in a corporation, under the corporate se'al and signed by the officers authorized to issue certificates, estops the corporation to deny its validity, as against one who takes it for value and with no knowledge or notice of any fact tending to show that it has been irregularly issued.” As it thus estops the corporation, so it estops the former holder of the stock, under whose authority the corporation acted in issuing the certificate.

It is, therefore, ordered that our former decree herein remain undisturbed.

Dissenting- Opinion.

Roché, J.

A second examination of this case, and an exhaustive consideration of the authorities submitted to us on rehearing, and which had not been considered on the first hearing, have led me to the conclusion that there was error in our first opinion.

It is conceded on all sides that the stock in question was the undisputed and lawful property of plaintiff, and it is not contested that she could not be deprived of her property without her consent, or without some act of negligence on her part.

It is in full proof tliat slie acquired tlie first; knowledge of the unlawful disposition of her stock only a short time previous to the institution of this suit for its recovery or its value. Hence she cannot bo charged, and it is not even averred, that she has ratified by acquiescence or long silence, preceded by knowledge, the act of her agent in the premises.

The crucial test of the controversy is, therefore, to ascertain whether she is legally bound by the transaction through which her stock was disposed ot.

1. The first inquiry must be directed to a proper construction of the contract between the defendants and Honold & Co., under which her shares of stock went into the possession of the defendants, who subsequently sold the same, and accounted for the proceeds to their debtors, Honold & Co.

Although the transaction, by its terms, purports to be a transfer of the ownership of the stock, it is manifest from defendants’ own pleadings and from the whole record, that it was not a sale; that it vested no ownership in the defendants as ostensible transferees, and that it was purely and simply an act of pledge, under the guise of an apparent transfer.

It is not even alleged or pretended that the defendants paid any money, or gave any consideration for the transfer at the time that it was made. The consideration was avowedly an antecedent debt, originating from the defendants’ purchase of Honold & Co.’s drafts, and the subsequent refusal of the same by the drawees. In their letters to Honold & Co., the defendants in accepting the pretended transfer of tlie stock, used the following language:

“We note that you have transferred to us, on the books of the company, one hundred shares of stock of the St. Charles Street Railroad Company, certificate of which stock you had deposited with us as collateral security to cover margin on the consignment; any dividends which may become payable on said stock, whilst in our possession, to be paid to us and and placed to your credit in the transaction.”

In Ms testimony on the trial of this case, one of the defendants stated: “We placed the dividends which we collected on the St. Charles Street Railroad stock to their credit.” (Honold! & Co.) “The last being received by us in May, 1878.” * * * “ That stock was, in May, 1878, sold by us through our brokers for a price higher than limited' by Honold & Co. and the- proceeds placed to their credit. Honold & Co. were duly notified of the sale and were satisfied and ratified it.”

It is, therefore, too plain for argument that defendants’ possession of the stock was not that of owners, hut that of pledgees, not for the debt of plaintiff, hut that of Honold & Co.

2. The next inquiry is, whether plaintiff’s agent had power to pledge her stock.

The suggestion at once arises that lie did not make the pledge, hut his Arm did. Blit conceding, for the sake of argument, that the pledge was his act, the inquiry is, whether the mandate to sell movable property includes the power to pledge the same.

The proposition is answered in the negative by the text of the Code. Article 2997 reads : “Thus the power must be express and special for the following purposes:

To sell or to buy.

To encumber or hypothecate.”

Hence it follows that the power to pledge, which is an incumbrance and which to movable property, stands as a mortgage to immovable property, must be express and special and cannot be included in a mandate to sell stock and collect dividends.

In the case of Woodhouse vs. Insurance Company, 35 A. 242, this Court held that the power to pledge did not include the power to sell. The same rule prevails in the common law. Booth vs. Farmers and Mechanics’ National Bank, 74 N. Y. Reports 228.

In support of their contention to the contrary, defendants’ counsel cite the two following cases: Clark & Brisbin vs. Bouvain, 20 A. 71, Davidson & Hill vs. Bodley, 27 A. 150. In the first of these cases the fsale complained of had been made by a pledgee under an act of pledge, and not by an agent under a power of attorney. The complaint was that the pledgee had sold other and more property of the pledgor than had been pledged to him. In the second case the agent for the sale of machinery had pledged it for his own debts to a third party, who had no knowledge that Ms debtor’s possession was that of an agent. Hence it is clear that neither is in point on the question under consideration.

3. The last inquiry is, whether the defendants, under the circumstances of this case, are protected from plaintiff’s attack, by the certificate of the company that the stock had been transferred to them.

If they had purchased the stock, for valuable consideration at the time of the transfer, they worild unquestionably be entitled -to that protection.

But, as tlie record shows, they were not the purchasers hut merely the pledgees of the stock. It was not pledged as the property of plaintiff, hut as that of Honold & Co. Throughout the whole transactions they treated, handled and finally sold the stock as the property of that firm, their debtors.

In their letter of May 18, 1877, which was the incipient step to the transaction, Honold & Co. stated to the defendants: “We, to this effect, have transferred to your name on the hooks of the St. Charles Street Railroad Company and handed to you the certificate for one hundred shares of the said company’s stock, which you will please consider as a margin deposited by us on this consignment.” * *

Hence it is clear that the stock was offered on the one hand, and accepted as a margin or collateral security on the other, as the property of Honold & Co., without any reference to, or concern about, the power of the agent, a member of the firm, but entirely distinct from it. Honold & Co. were not the agents of plaintiff, and she had never clothed them with the 'insignia of ownership of her stock.

True, the transfer on the books of the company was made by plaintiff’s agent and in her name, and quoad the company, the transfer may have been correct. But defendants cannot invoke the legality of the transfer under the power of attorney, because they had no knowledge of its existence and had no concern about its utility in the premises. They did not pretend to deal with an agent, or bargain for the property of a third party. They took the word of Honold & Co. to the effect that they were the owners of the stock, and they must take the risk of their truthfulness.

They are in the attitude of a pledgee who receives valuable property in the possession and apparent ownership of his debtor, without inquiring into the latter’s title or right of ownership.

Knowing that they had bought no stock in the-company, they accept and quietly rely upon a certificate that they have become owners of one hundred shares of its stock, without making any inquiry into the title of their ostensible transferrors. They cannot invoke the rule which protects an innocent transferee of stock, without notice of its invalidity.

They are clearly amenable to the rule laid down by the Supreme Court of the United States in the case of Moore vs. Citizens’ National Bank of Piqua, Federal Reporter, vol. 4, part 7, p. 345. In a decision rejecting plaintiff’s claim to certain shares of bank stock, of which she held a certificate issued in her name, the Court said: “The certificate which be delivered to tlic plaintiff was not in his name, but in hers; stating that she was entitled to so much stock. * * * The very form of the certificate was such as to put her ou her guard. She was not applying to the hank to take stock, as an original subscriber or otherwise, but she was bargaining with R. B. Moore for stock’ which she supposed him to hold as his own. She knew that she had not held or surrendered any certificate, and never asked to see his certificate, or a transfer thereof to her. * * * She relied upon his personal representation, as the party with whom she was dealing, that he had such stock.” * * »

In our case there is no question as to the transfer of the stock on the company’s book. But had the defendants inquired, as it was their bounden duty to do, into the transfer on the books of the company, they would inevitably have discovered that they were dealing with stock as the property of Honold & Co., but which was the property of this plaintiff.

In that particular the circumstances of this case are not as favorable to the defendants as were those in the case of Stern Bros. vs. Germania Bank, 34 A. 1120. In that case the defendant bank had no means of ascertaining the nature of Bader’s possession of coupons which were payable to bearer, and which Bader held for collection.

The omission by these defendants to make necessary inquiries into the alleged title of their debtor, which were so easy to make, is fatal to the defense, and places them in the attitude of agents who have sold property belonging to third parties and not to their principal.

4. The plea of prescription of three years cannot avail them, because their possession was not as owners, but as pledgees. This is shown by their own-pleadings.

The possession of three years contemplated by Art. 3506, Civil Code, must be as owner.

“The creditor cannot acquire the pledge by possession, whatever may be the time of his possession.” C. C. Art. 3175.

I, therefore, conclude that plaintiff was entitled to recover, and I dissent from the opinion of the majority.

Bermudez, C. J. concurs in this opinion.


author: Manning, J. Fenner, J.

text:
    No. 9171.
    F. A. Blanks vs. Hibernia Insurance Company, of New Orleans.
    Judgments overruling exceptions in the progress of a cause are interlocutory and come tip for review on the appeal from tlio final judgment when properly presented. A separate appeal from them is neither necessary nor desirable when they do not dispose finally of the suit.
    The rules of this Court are not mechanical contrivances to entrap suiiors and counsel, hut well-considered regulations to promote tho efficient performance of public duties.
    Stipulations in policios of insurance limiting the time •within which claims shall be prosecuted are valid and legal, and form the law for the parties.
    When, on presentation of a claim for loss, a company positively denies its legal liability, but
    ' says that being re-insured for seven-eighths of the loss in other companies, it is willing to pay if the re-insuring companies will also consent; and when the ro-insuring companies have not consented; and when all negotiations have ended and tho company has absolutely refused to pay nearly two months before the expiration of tho period limited in the policy for the prosecution of the claim, such negotiations form no excuse for delay beyond the terra, and action brought six months after the expiration is barred under the stipulation.
    An open policy insuring the freight lists of steamboats plying tho Mississippi and tributaries, upon proper and timely entries thereon, unmistakably means that if by reason of any of the perils insured against, the boat should bo prevented from earning the freight stipulated on cargo shipped, the company will make it good to tho extent of the insurance. When by reason of such peril the boat is disabled from completing her voyage and is compelled to resliip her freight at the same rate which she was to receive, the loss is total and tho company liable.
    The rule which requires vessels navigating the high seas to repair, if it, can he done, and to prosecute the voyage without transferring freight, must submit to reasonable limitations in its application to rivor-craft, whoso voyages are short and whoso shippers have tho right to require prompt forwarding of their goods in ease of detention by accident. Tinder the circumstances hero, tho boat was justified in resbipping.
    PPEAL from tlie Civil District Court for the Parish of Orleans, Tissot, J.

      Singleton, Browne & Ohoate for Plaintiff and Appellee.

      T. Gilmore & Sons and O. B. Sansum for Defendant ancl Appellant:
    The several clauses of policies of insurance providing for limitation of action, ascertainment of particular average or partial loss and payment of loss in sixty days, only after proof of interest in tho property and proof of loss and adjustment, are intended for the protection of the insurer, and are founded in principle and obligatory upon the assured. Bid-dleberger vs. Hartford Insurance Company, and citations on first page of brief; 26 A, 298; 35 A. 353; 11 Bob. 255; Arnold on Marine Insurance, 8C9-874.
    The doctrine of one-third new for old when adopted into the agreement of the parties as a measure of compensation in adjusting partial marine losses, cannot bo departed from. Biley vs. Ocean Insurance Company, 11 Bob. 255; 4 Obio, 234; 33 Mo, 158; 2 Philips on Insurance, 477; Arnold on Marine Insurance, 979-986.
    In order to recover upon a policy upon freight, it is necessary to prove an insurable interest and loss of freight, as well as a contract to insure. Arnold, 869-874,

   On Motion to Dismss.

Tlio opinion of the Court was delivered by

Manning, J.

The grounds oí the motion are,

1. That the appeal is taken by motion at a different term than that in which the judgment was rendered.

Certain exceptions had been made which were overruled in June 1883. The trial on the merits was not had until Feb. 1884, when the appeal was taken. Of course the appeal brought up the interlocutory judgment of June 1883 on the exceptions.

What the mover means is that we must dismiss the appeal quoad th e overruling of the exceptions, which he contends is a final judgment because the judge signed it. The character of legal documents, proceedings, etc., is determined by other insignia than the fact of signature by court officers.

2. That extension of time for filing the transcript was not legally obtained for this reason. The transcript not being completed by the return day, the appellant on that day made his motion in this court for an extension of thirty days, accompanying it with the usual certificate of the clerk of the lower court, and the time was granted. Now the appellant wrote that motion on a half-sheet of cap-paper and pasted or attached the lower clerk’s certificate to the outside, so that when the two were folded together, the caption of the suit and the filing by bur clerk was on the certificate and not actually endorsed on the motion.

The mover says that is not a compliance with our rule that requires the title of the suit to be endorsed upon the motion.

The objection is so puerile that we should have been glad to be spared putting it on record. The rules of this court are not mechanical contrivances to entrap suitors and counsel, but well-considered regulations to promote the efficient performance of our duties.

The motion is refused.

On the Mehits.

Fenner, J.

This action embraces three claims for distinct losses under three separate policies of insurance on different steamboats.

L

The first and most important claim is for $5511 58, alleged loss under a policy upon the steamboat Fred. A. Blanks.

The policy was for $40,000, upon the hull, engine, appurtenances, etc., of the boat, which were valued in the contract at $60,000, and contained the following significant stipulations:

1. That in case of irreparable loss, then to the charges for repairs “tiie said insurance company will contribute in proportion as the sum insured bears to the agreed value herein.”

2. That the company was to be liable only for “net loss after the usual deduction of one-third new for old from the cost of such repairs, or replacing of apparel or furniture, that being the agreed difference in value between new and old materials.”

3. That the insurance company shall not be liable for “any claim for provisions furnished to the officers or crew, nor for their wages, when the said steamboat is detained by any disaster, or during subsequent repairs;” nor “for any expense of dockage or hauling out for repairs, or proceeding to a port for repairs; nor for any loss (except in case of general average) unless the necessary repairs required solely by the disaster amount to five per cent on the agreed value in this policy, after deducting proceeds of savings, if any, and exclusive of all expenses of ascertaining and proving the same.”

4. That all claims under this policy are barred, unless prosecuted within one year from the date of loss.”

The loss claimed occurred on August 20, 1881, resulting from raking the bottom of the boat, breaking a number of her floor timbers and otherwise injuring her. She was able, however, to make her way to New Orleans, where she arrived on August 26th, and after protest made, went into dock for repairs.

After their completion, plaintiff presented his claim for loss to the company, accompanied by the protest and by vouchers for the items of the claim.

This claim stated the total cost of repairs at $3698 32, which included, however, a charge of $1236 for doclcage and demurrage. From this $3698 32 the claim deducted one-third new for old, leaving $2465 55 as the claim for repairs. It added thereto $217 “for fuel and oil consumed in running pumps after discharge of cargo and until boat was put in dock;” $193 32 for engineer’s services running’pumps; $120 “Capt. F. A. Blank’s services superintending repairs;” and $17 to “notary for extending protest, certified copy, etc.;” so that the claim made against the company was for $3035.

Upon presentation of this claim to the company, and at various times afterwards, interviews took place between the officers of the company and the plaintiff and other persons in his interest, touching which there is a large amount of evidence in the record. We think it unnecessary to analyze this evidence. We simply state the perfect conviction pro-ducecl thereby on our minds, that from the first, and at all times, the company positively disclaimed any legal liability for the loss, on the ground that, excluding charges manifestly improper under the terms of the policy, the loss did not amount “to five per cent on the agreed value in the policy.”

We have no concern here with the question as to whether the legal position assumed by the company was a sound one or not. It is sufficient to say that the company placed its refusal to pay upon a distinct and unequivocal denial of its legal liability.

Upon the complaint of plaintiff as to the hardness of the case, and in consideration of the fact that it had reinsured in seven other companies to the extent of $35,000, or seven-eighths of the entire risk, the company told plaintiff that if the reinsuring companies would agree to waive the objection and pay the loss, it would do so ; and promised to communicate with them on the subject.

Such communications were made, informing the reinsuring companies, or at least some of them or their resident agent, of the facts, and of the defendant’s willingness to pay if they would; and no answer was made or notice taken thereof by said companies.

So matters went on until Juno 28,1882, when the company demanded of plaintiff payment of a premium duo on the renewed insurance of the boat. Then plaintiff demanded a settlement of the loss and a credit thereof on the new premium, which the company refused and absolutely declined to settle the loss.

This occurred nearly two months before the expiration of the “ one year from the date of loss,” within which the policy required that the claim should be prosecuted, under penalty of being barred. Yet suit was not brought until February 19, 1883, nearly eighteen months after date of loss.

The validity and legality of stipulations in policies of insurance limiting the time within which actions for claims thereunder may be brought, have been affirmed by this Court and by the Supreme Court of the United States. Edson vs. Merchants’ Insurance Company, 35 La. A; Riddleberger vs. Insurance Company, 7 Wall. 386.

It has also been settled by this Court that the term “ prosecuted,” as here used, means prosecuted by suit. Carraway vs. Insurance Company, 26 A. 298.

Such stipulations are, therefore, the law which the parties have made for themselves, and by which their rights and obligations must be measured,

Courts have been liberal in construing and administering sucb provisions, have restricted tlieir application in sundry cases, and have admitted certain excuses for non-compliance therewith; but, after attentive research, we can find no reason or precedent which would justify the failure of plaintiff to sue within the time limited in this case.

Thus, it has been held that where the action could not be brought within the time by reason of the defendant’s not being accessible to service of process at a time immediately preceding the expiration of the time, the non-compliance would be excused. Semmes vs. Insurance Company, 13 Wall. 159; Insurance Company vs. Hall, 12 Mich. 202.

So, where the policy contained other conditions, compliance with which was inconsistent with suit within the time fixed, the failure will not defeat the action. Mayor vs. Insurance Company, 10 Bosw. (N. Y.) 537; Stout vs. Insurance Company, 12 Iowa, 371.

So, delays occasioned by the conduct of the insurer, as by promises to pay, or failure to act in adjusting the loss, or acts inducing defendant to suspend the making out of his proofs of loss, in such manner as to prevent the insured from bringing his action, or other negotiations which fairly warranted and induced delay beyond the period stipulated, have been held to operate a waiver of the limitation..

The cases chiefly relied on by plaintiff’s counsel will be found to fall within the above categories.

Thus, in Killips vs. Insurance Company (Sup. Ct. Wisconsin) 1 Ins. L. J., 169, the acts and omissions of defendant’s agent had delayed the plaintiff in furnishing his proofs of loss, which, under the terms of the policy were a condition precedent to his right of action, and it was held that as the limitation could only apply from the time the right of action accrued, such delay did not count in the time; following in this the decision in Mayor vs. Insurance Company, 39 N. Y. 45.

No such point is involved in this case. The proofs of loss were furnished on October 14,1881. No objections were made to them. Plaintiff’s right of action accrued sixty days thereafter, and the suit was not brought within one year even from that date. So that even if we admit the very strained doctrine of these cases, that a provision requiring suit “within twelve months from date of loss” means “within twelve months from the expiration of the period fixed in the policy as the delay allowed the company for paying, after proof of loss,” it would not avail in the present case.

The other authorities relied on will be found to cover cases where the promises and inducements to delay of the company were continued beyond the period of the limitation in such manner that, after they ceased to operate, the suit could not be brought within the delay.

But here, even conceding that the negotiations were entitled to any effect whatever, they ceased, as conclusively proved, about two months before the expiration of the limitation. The mere pendency of the negotiations between the parties on subject of settlement will not of themselves operate as a waiver of the limitation, unless they are of a character to induce the insured to abstain from suit within the time. McFarland vs. Insurance Company, 6 West Va. 425; Woodson Fire Insurance, sec. 434.

In a case strikingly similar to this, it was held in New York that refusal to pay, on the very ground here asserted, did not operate a waiver of the limitation clause. Degrove vs. Insurance Company, 61 N. Y. 594,

We are of opinion, however, that the conduct here proved was entitled to no such effect, under any circumstances. The company’s denial of its legal liability and refusal to pay under the policy,’ were prompt, decisive and reiterated. The expression of a willingness to pay if the reinsuring companies would agree, was a mere proposition of benevolence. If plaintiff intended to stand upon his legal rights, his course was clear and open. If he chose to take the chance of the consent of the reinsuring companies to pay, notwithstanding the absolute denial of legal liability, his delay on that account cannot avail him, or prejudice the company.

We conclude, therefore, that the plea in bar was well taken and that the allowance of this claim was error.

II.

The other two claims present less difficulty. The proof as to their amount satisfied the judge"who tried the case and we shall not disturb the finding.

The legal defenses are without merit. The claims are based on an open policy insuring one-half the freight lists of the boats. The accidents which occasioned the losses were within the risk. The meaning of the policy is unmistakable. That is, that if by reason of any of the perils insured against, the insured should be prevented from earning the freight stipulated on cargo shipped on board, the company should make it good to the extent of one-half its amount.

Here, the amounts of the freight lists were duly entered on the policy, after the cargoes had been secured. The boats, while on their respective voyages, met accidents which prevented their completion. In one case an explosion occurred .near the city, which compelled the boat to return and subjected her to a delay of six weeks. Sbe was compelled to employ another boat to forward her cargo and to pay the same rate of freight which she received.

In the other case, the accident was a collision, which disabled the boat from proceeding and compelled her to unload and reship on another boat, which charged the full amount of the freight. The loss of freight, in both cases, was total.

The rule of law which requires the master of a vessel navigating the high seas to repair, if it can be done, and prosecute the voyage, instead of transferring the freight to another vessel, must]subinit to reasonable limitations in its application to river craft, whose voyages are short, and whose shippers have the right to expect and require that in case of detention from accident, their goods shall not be detained to await lengthy repairs, but should be promptly forwarded to their destination. Roe vs. Crescent Insurance Company, 11 A. 408. Other defenses are without merit.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof to the amount of $671 52, with legal interest on $292 28 from June 8, 1881, and on $379 24 from April 4, 1881, and by rejecting plaintiff’s demand in other respects; and, as thus amended, that the same be affirmed; plaintiff and appellee to pay costs of this appeal.

Rehearing refused.


author: Fenner, J. -"Bermudez, C. J.

text:
    No 9062.

    Board of Administrators of the Charity Hospital vs. C. E. Girardey.
    Tlie -final section of the Revised Statutes ropeals “all laws and parts of laws on file same subject matter, exoept what may he contained in Revised Civil Code and Code of Practice, etc.” The subject matter of the Act of 1805, entitled “An Act to regulate sales at auction,” invoiced in this case, is identical with, that covered hy the provisions of the Revised Statutes, under the heading of “Auctioneer” and “Auction Sales.” So far, therefore, as the provisions of the act of 1805 have not been perpetuated in the Revised Statutes or the Codes of 1870, they are repealed.
    PPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      J. A. Gilmore and Henry Benshcm for Plaintiffs and Appellees.

      Jonas <& APitcon, JET. PDufiTho and Leovy é Kruttsclmitt contra.

   The opinion of the Court was delivered by

Fenner, J.

The sole question presented in this case is whether defendant, a public auctioneer, is liable for the duty imposed by sections 145 and 161 of the Revised Statutes, in so far as the same is demanded on succession, insolvent and judicial sales made by him.

We considered this question very thoughtfully in the case of State vs. Girardey, 34 A. 620, wherein we said: “The law makes no distinction whatever in favor of such sales. The language is, ‘all property, rights or credits, which shall be sold at public auction, or at private-sale, by any auctioneer (except such asare or may be exempted by law) shall be subject to a dirty, etc., R. S- 145.’ Unless there exists some law exempting' sales of the sort above mentioned, they fall necessarily within the purview of the statute. We know of, and have been referred to no such law.”

The defendant now claims to have discovered such a law, in the act of January 15, 1805, chap. IY. of the acts of that year. The discussion at bar was confined to the question whether or not the terms of that law covered such an exemption and it is one not free from difficulty.

We are relieved from its consideration, however, by our clear conviction that the act of 1805 is repealed by the final sections of the Revised Statutes of 1870, which declares that, “all laws or parts of laws contrary to or in conflict with the provisions of this act, and all laws or parts of laws on the same subject matter, except what may be contained in the Revised Civil Code and Code of Practice of the present session, be and the same are hereby repealed,” etc. R. S., sec. 3990,

To ascertain the identity of the subject matter of the act of 1805 with that included in the Revised Statutes, it is only necessary to refer to the respective titles and provisions of the two laws, The title of the act of 1805 is “An Act to regulate sales at auction; ” whereas, that of the Revised Statutes, as relating to this subject, is “relative to auctioneers; to the manner in which persons may become auctioneers; their duties, powers, fees and privileges; the taxes tobe paid by them; the penalty for disobeying law; and mode of making their sales.”

The latter title will be found to cover and include all the purposes and provisions of the act of 1805.

The identity of subject matter is perfect. Unless, therefore, the provision of the act of. 1805, from which it is now claimed that exemption results, has been, perpetuated either in the Revised Statutes or in the Civil Code of Practice, it is clearly and unequivocally repealed.

The incorporation of the words “except such as are or may be exempted by law,” cannot affect the case.

The exception still strictly confines the exemptions to those established by law, and when the law establishing them falls by repeal, the exemptions necessarily fall with it.

There is no room for construction here. The identity of subject matter is complete and the terms of the repealing clause unambiguous.

The very purpose of the Eevised Statutes was to embody in one compendious and general statute all the scattered provisions of prior statutes of the State, and to enable the searcher after the law to be secure, that, as to the subject matters embraced therein, that statute, with the codes, contained the entire statutory law then left in force. It is a conclusive presumption that all prior statutes were passed in review, that those provisions which the legislator desired to perpetuate, were embodied therein, and that all omitted provisions were designedly repealed. We nrust do nothing to imperil the confidence with which the people and the profession have the right to rely on this presumption, by indulging in conjectures as to the legislative intent, which may or may not be well founded.

The fact that in the revision of the statutes made under legislative authority in .1852, the provisions of the act of 1805 now relied on were extended, lends strong force to the conclusion that their omission in 1870 and consequent repeal, was not only legally effective but also intentional.

This leaves the question in the precise status which it occupied at the date of our former decision, from which we see no reason to recede.

Since that decision, a session of the General Assembly has been held, at which this duty was considered ( Act No. 53 of 1882 ) and another session will speedily occur. If, unwittingly, we have contravened the legislative will, a remedy, at least for the future, may be found.

Judgment affirmed.

DissentiNG Opinion

-"Bermudez, C. J.

The Section relied upon to claim the tax or duty from the defendant, manifestly except from the same, all sales made of succession and insolvency property and, therefore, warrants a judgment of relief in favor of the defendant.

It palpably derives from section 11, of Act 141 of 1848, which-itself comes from- section 3, of act 41 of 1839 which, regulates the duties to be paid by auctioneers.

It is in this act of 1839, that for the first time are to be found the words: JSxcept such as are now exempted by existing laius.

The question then arises, confronted by this vague reference to an exemption, whether in 1839 there existed or not, a law exempting from the duty any particular class of property.

Running backwards, two statutes are found on the subject: One of 1836, sec. 1, p. 56, relative to port warden sales, and another of 1805, passed by tliejerritorial council, p. 16.

It is needless to refer to the act of 1836, as it has no material bearing on this case, save'so far as it amends the last mentioned act, which it, therefore, notices.

Section 7 of the Act of 1805, provides:

“That all goods and chattels, lands and tenements, which may be hereafter seized by any public officer for, or on account of any forfeiture or penalty; goods and effects of deceased persons, or effects detained for rent, or taken in execution, or damaged goods sold for the account of the concerned, and the goods of insolvent debtors, shall in no wise be subject to, but are hereby exempted and declared free from the duty aforesaid.”

It is proper heiA to observe that section 8 of that act (1805) was amended-by section 2 of the subsequent act of 1836, by striking out the words: “ sold at any auction store,” and replacing them by the words: “sold by any commissioned jpubhe auctioneer.” So that the section (8) would read:

“All goods and chattels, lands and tenements sold by any commissioned auctioneer, whether at public or private sale, shall be subject to the duty before mentioned.”

By reference to the Digest of the statutes of the State, reported by the compilers thereof, in 1852, under authority of the acts of 1848 and 1850, it apireara that section 7 of the aotof 1805 was published among the laws then in force.

An attentive reading of that section impresses forcibly the mind that its object was to exonerate from the duty three specific classes of property:

1. That seized and sold under writs issued by judicial authority.

2. That belonging to deceased persons, or successions.

3. That composing the estate of insolvent debtors, or bankruptcies.

The amendment of that section by the act of 1836, was not designed to and did nob disturb that exemption from duty.

The acts of 1839 and 1848 first continued it in force, by the fact of the reference to the property, the sale of which was exempt from duty by law. 'The supervisory legislation of 1855 and of 1870 have bridged it over with all its pristine vigor and effect.

It is not exact to say that tlie last section of tlie Revised Statutes of 1870 (sec. 3090) lias repealed it, because on tbe same subject-matter, for tlie obvious reason tliat this revisory legislation (sec. 145) itself provides that all property, except tliat exempted by law, shall be subject to duty.

A review of tlie legislation in force at the time of the adoption of the R. S. of 1870, dating as far back at least as 1855 and which is still in existence, discloses the double significant fact that, in furtherance of the design to alleviate the burden resting upon the transfer of property belonging to successions, to insolvencies and to-incapacitated persons, the Legislature has subjected the same to a lighter commission in favor of auctioneers and sheriffs, and has specially authorized the sale of such property as well by the former as by the latter. Sec. 3549, R. S; Acts 1855, p. 106, and ex. sess. 20.

On principle, laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. It is, therefore, but reasonable to conclude that the Legislature in passing a statute did not intend to interfere with or abrogate any prior law relating to the same matter, unless the repugnancy between the two is irreconcilable, and hence a repeal by implication is not favored. On the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together. Sedgwick on Stat. and Const. 106.

In the present instance, the exemption from duty of succession and insolvency property lias been under special and constructive legislative consideration and apparently the object of unvarying solicitude, on at least eight different occasions, in 1805, 1836,1839,1848,1852,1855,1856 and 1870.

It is indisputable that the act of 1805 was in force at the date of the' supervisory legislation of 1855 and that it has survived it. The act of that year, relative to auctioneers (No. 104, p. 106) concludes, as' does the classification of 1870, termed the Revised Statutes,” by repealing all laws in conflict with its provisions, or' on the' same subject-matter, save those contained in the Codes.

As regards that legislation, it has been more than once held that an interpretation leading to a mischievous result should be rejected; that the legislative intent should be sought and enforced; that the repealing'clause did not recall such pre-existing statutory'provisions as were' re-enacted in the revisory statutes. 11 A. 439,470,609; 12 A. 390,431; 14 A. 620, 667, 720, 730.

The very repetition totídein verbis of sec. 7, of Act 104 of 1855, more than implies — it aim ounces — a will to retain in 1870 the legislation bridged over by the act of 1855.

Section 145, as well as sec. 149, which also intimates that there are sales not subject to duty, are certainly pregnant with, and therefore vivify, the act of 1805, which by formal legislative behest, tenaciously adheres to their entrails. To pretend the reverse is to do violence to the intent of the law-giver and to extirpate it from the solemn expression of his will.

Remission for relief to the mercy or liberty of an impotent Legislature is no crumb of comfort. It is less than a deception and fleeting shadow. Const. 1879, art. 57.

It does seem illogical and unreasonable, therefore, to conclude that however much the section relied on (145), itself excludes from duty the property exempt by law, it is to be understood and construed as announcing the reverse of its meaning; that is, that there exists no such property or exemption, or that if such be the law, it was, by the subsequent last section, revoked and nullified. Such conclusion appears repugnant to the legal mind.

There has not been uttered oven a whisper that property sold by sheriffs, under writs or orders of courts, is subject to the duty, and the reason is that there exists indeed no such liability, simply owing to the exempting act of 1805. If that law be considered- as repealed, then propert3r sold by sheriffs in furtherance of judicial orders, writs and authority, must pay the tax to the State. The only motive or consideration which can satisfy the mind in justifying the immunity to this day is, that as the property passes not by the option or will of the owner but by the power of judicial authority, it should not be burdened. If that be the reason, then why should not .the property composing the assets of successions and of insolvencies, which likewise passes by public sales, which are also made by judicial authority, be in the same manner and to the same extent liberated from the duty ?

It was advanced, without contradiction, in argument that the State authorities have invariably considered the Act of 1805 as in force, as at all times they have distributed among the auctioneers forms or blanks for their returns to the Auditor, implying the exemption, and that no duty has ever been paid on that class of property into the State Treasury. The undenied assertion is certainly entitled to some consideration and moral weight.

The records of the courts and the memory of ancient practitioners fail to recall a single instance in which the State has ever claimed the duty, or in which an auctioneer has over demanded it.

If such has been the consten-. i put on the law by the State herself, how inequitable it would be to hold th efendant liable for a tax which never was considered as due and exii

As was well said by counsel of de >nt, the clear meaning of this exception is to exclude from the payment of the duty all property exempt by law at the time of the passage of the R. S.

Indeed, if the object in view was not to except all property exempt at that date, then language is meaningless and the Legislatures that have used it four times, at least, have spoken simply to say nothing.

Section 145, R. S. incorporates sec. 7 of the Act of 1805, and must be read as follows:

“All property * * * which shall be sold * * * by auctioneers, except that belonging to successions mid insolvencies, * * * shall be subject to a duty,” etc.

To contend for the reverse, as is done by the plaintiffs, is arbitrarily to expunge from the law its expressed meaning and to feed charity on the fruits of an iniquitous exaction.

Rehearing refused.

Poelié, J. I concur in the dissenting- opinion of the Chief Justice.


author: Bermudez, C. J. Fenner, J. Bermudez, 0. J.

text:
    No. 9175.
    Alexander Morrison vs. James A. Lynch.
    A. rule on the clerk of'the lower court, to compel him to complete a transcript of appeal charged as deficient, in not containing oral and documentary evidence admitted, will not be entertained by this Court, where the charge of deficiency is disputod and an issue of facts is raised.
    The determination of the issue appertains to the lower court which has jurisdiction over the case for the purpose of having a proper transcript made and transmitted to this Court. 33 A. 422, affirmed.
    Transcripts incomplete by the fault of the appellant will justify a dismissal of the appeal. 35 A. 878, affirmed.
    Under the disposition already made of the rule taken herein, the ^present motion to dismiss . on ground of defectiveness of record is premature
    In presence of complete certificate of the clerk, the other grounds set up must fail.
    In the absence of a motion therefor, the Court will not dismiss an appeal, although the transcript is defective, by the fault of the appellant, where it contains sufficient evidence to enable the Court to pass upon the case, without injury to appellee.

      The notice of a transfer of credit served on the attorney or counsel of the alleged debtor, is insufficient to bind the creditors of the transferror. A seizure of such credit, notwithstanding such notice, will be maintained.
    PPEAL from tlie Civil Bightor, J. District Court for tlie Parish of Orleans

      Sambola & Ducros for Plaintiff and Appellee.

      T. M. Gill, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is a rule by the appellee on the clerk of the district court, to show cause why ho should not include in the transcript oral and documentary evidence, introduced on the trial of the case and which have not been copied into the transcript.

The clerk answers that the transcript contains all the proceedings had, documents filed, testimony and evidence adduced on the trial; that, if the evidence called for was adduced, it is not of record in his office; that there is no note of evidence or documents on file, which show that such evidence was introduced; that his certificate, attached to the transcript, is, therefore, full and complete.

In support of the rule, a certificate from the district judge is submitted to show that both oral and written evidence was offered and admitted, which does not appear in the transcript of appeal, the certificate whereof is untrue.

Cognizance of a proceeding of this sort, which involves the determination of matters of fact, does not appertain primarily to this Court, but to the court a qud which has authority to inquire into and pass upon the issues presented.

It is a practice of long standing in this Court, authorized by law, C. P. 898, 899 and 900, to issue an order, in the nature of a certiorari, to the clerk of the lower court, to direct him to complete a transcript, represented as defective; but this is done where no dispute as to facts arises. 5 M. 668; 9 M. 185.

When it is doubtful, whether all the evidence received below has been put of record, the matter falls within the jurisdiction of the lower court to ascertain, and, where circumstances justify, to have its clerk to do his duty by perfecting the transcript of appeal. 3 L. 455,296.'

In the recent case of State ex rel. Cass, 33 A. 422, this Court 'held that, although the jurisdiction of the lower court abates, the moment that the order of appeal is made and the bond under it furnished, the power of that court, over its clerk, does not cease to have him to perform the duties imposed upon Mm, for the confection of a transcript of appeal. 14 Cal. 640. The lower court, when called upon, is bound to see that such transcript be made according to legal requirements, for, this Court can exercise its jurisdiction only in so far as it shall have knowledge of the matters argued and contested below. C. P. 895; 13 L. 182; 5 A. 602; 13 A. 479; 15 A. 63; 18 A. 146, 729; 21 A. 135; 23 A. 28; 25 A. 216.

It would be doing a vain thing fof this Court to make the order asked, without proof before it, directing the clerk to transcribe into the transcript oral and documentary evidence, which, he says, is not' of record, even if such was received.

Where oral testimony is heard, either party may require the clerk to take it down in writing, which shall serve as a statement of facts, if the parties should not agree to one. C. P. 601. Where documents are introduced in evidence, a note of them is usually taken by the clerk, to serve as a guide in the determination of the cause and in the making of the transcript, in case of appeal.

Where the testimony was not reduced to writing and the documentary evidence noted, and an appeal is taken, a statement of facts becomes necessary, which must be prepared before the appeal is asked, in pursuance of the prescribed rules. C. P. 602, 603.

Because one of the parties has not caused his oral testimony to be taken down and his written evidence noted, it does not follow that in the évent of an appeal by his adversary, he should be deprived of it and placed at the mercy of his opponent. The appellant should, in such a case, have a.statement of facts seasonably made as the law directs. A failure on his part in that respect, may imperil his right to a prosecution of his appeal, as this Court has jurisdiction to dismiss appeals when the transcript brought up by the appellant is defective by a fault imputable to him. 35 A. 818; 19 A. 292; 16 L. 251; 1 E. 100, 133; 5 R. 152; 7 A. 442; C. P. 601, 602, 898.

It is, therefore, ordered that the rule herein taken by the appellee for the completion of the transcript of appeal be dismissed with costs, without prejudice to the right of appellee to take proper steps in the lower court for such completion and to bring up for review, should need be, the action of the court thereon, or to move for a dismissal of the appeal, if any right he have, for deficiencies, if any, imputable to the appellant.

On Motion to Dismiss.

Fenner, J.

The motion is on the grounds that the record is incomplete by the fault of appellant and that there is no hill of exceptions, statement of facts or assignment of errors.

The certificate of the clerk accompanying the record is complete in every particular.

A rule has heretofore been taken upon the clerk by the appellee to show cause why his certificate should not be corrected so as to show the deficiencies in the record. For the reasons given in our opinion then rendered, we dismissed the rule “ without prejudice to the right of appellee to take- proper steps in the lower court for such completion and to bring up for review, should need be, the action of the court thereon,” etc.

No action has been taken under this order and the motion to dismiss, as at present submitted, is obviously premature.

Since the foregoing opinion was adopted, a supplemental transcript has been filed showing action taken in the lower court under our decision on the rule referred to in the beginning of this opinion. This does not affect our conclusion that the present motion to dismiss on that ground is premature. The motion must stand on the condition existing at the time when it ivas submitted.

So far as the absence of exception, statement of facts or assignment of errors is concerned, that furnishes no .right to dismissal of appeal when the clerk’s certificate is complete, as we have recently held, after a careful review of the authorities, in re Fazende for Monition, 35 A.

The motion to dismiss is, therefore, denied, without prejudice.

On ti-ie Merits.

Bermudez, 0. J.

This is an appeal from a judgment dissolving, with damages, an injunction obtained by a third opponent arresting the sale of a litigious claim, seized as belonging to the defendant, but which the former pretends to own under a valid transfer duly notified to the debtor before seizure.

The appellee first moved in this Court for the dismissal of the appeal on the ground of material deficiencies in the transcript, imputable to the appellant.

He next sought to have the clerk’s certificate corrected, which he charged with incorrectness.

Both motions were dismissed — the first because premature, the second because of want of jurisdiction in this Court to hear evidence in support of the charge.

The appellee has since taken steps in the lower court to show that the clerk’s certificate is erroneous in this: that it attests that the transcript contains all the testimony and evidence adduced on the trial of the case, when the truth is that it contains only part of such testimony and evidence. From the action of the district judge contradictorily taken and now before us, it clearly appears that the transcript does not contain all the testimony and evidence adduced on the trial; but from that circumstance it does not follow that the clerk’s certificate is absolutely untrue.

The oral testimony and documentary evidence received was not taken in writing and filed. No note of evidence was prepared by the clerk. The parties were not bound to have the testimony written down, or perhaps, the documents formally filed, or a note of evidence made by the clerk. This officer was not bound to do either of those three things, unless directed by either of the litigants and he had no right to include in the transcript his recollection of what the testimony was, or documents not filed, or a memorandum of what either or both were. His certificate is in the usual printed form, stereotyped for greater security, and was designed to mean simply that the transcript contains all the testimony and evidence adduced, which was written down and filed and which he had a right to transcribe for transmission to this Court. The clerk must not, however, issue such a certificate, unless all the evidence adduced is actually transcribed in the transcript.

It is to be remarked that the transcript contains no statement of facts. It was the duty of the appellant, under the circumstances and the law, to have caused one to be prepared at the time and in the manner prescribed by the Code of Practice, 602, 603. His failure to have done so, as was already observed in this very case, cannot prejudice the appellee, who appears to have done everything in his power, since the appeal was allowed, to have the transcript completed. The incompleteness is evidently attributable to the appellant, who might be made to stand the consequences of his dereliction.

This irregularity might have justified a dismissal of the appeal had the motion to dismiss been renewed, or perhaps, authorized an affirmance outright of the judgment without an investigation of the merits, on the presumption that the district judge had sufficient evidence before him to justify his conclusions; but we think it is better to dispose of the controversy, inasmuch as the transcript, however defective it be, enables us to review the judgment complained of and to do justice to the litigants, without injury to the appellee, on the record as brought up by the appellant himself.,

As stated, the thing seized in execution of the money judgment is a litigious claim, of which the third opponent asserts himself to be the owner.

The record shows that the attorney of Lynch, the defendant, on May 17, 1883, notified the Morgan’s Louisiana and Texas Railroad and Steamship Company, against whom he had brought suit in Lynch’s name, that all his right, title and interest in and to that claim had been transferred over to Burgess (the third opponent herein) as per entry on the records of the case. It also appears that notice was served on the same day on the attorney or counsel of the company, and that half an hour later the notice of seizure of Lynch’s interest by the sheriff in the suit was served on the president of the company in person. Nothing-shows that at that moment that functionary had knowledge of the transfer.

The law is positive that the transferee of a credit, right or claim against another, acquires the same as to third parties, only where notice has been actually given of the transfer to the debtor, and that until such notice has been legally given, the claim, however truly designed by the parties to be transferred, is liable to seizure by the creditors of the transferrer.

It is likewise to the effect that such notice must be given to the debtor, and that knowledge of the transfer, however conveyed, in the debtor’s attorney is not sufficient notice against the creditors. R. C. C. 2643 (2613); 20 A. 284; 5 A. 551; 7 A. 620; 2 L. 425; 14 A. 689; 3 A. 523; 9 A. 226.

The district judge has assigned no reasons in writing in support of his finding. The consideration of absence of valid notice of transfer is enough to justify his conclusion.

Judgment affirmed.

Rehearing refused.