author: McENERY, J.

text:
    No. 12,053.
    State ex rel. Raphael Beauvais vs. The Judges of the Fifth Circuit Court of Appeals, Parish of St. James.
    In the exercise of the supervisory jurisdiction of the Supreme Court a mandamus will lie to compel the Circuit Court of Appeals to take jurisdiction of a cause when the amount involved does not exceed the upper limit of its jurisdiction.
    In a suit when the defendant acknowledges a part of the indebtedness, the test of the jurisdiction of the appellate court is the difference between the amount claimed and the amount acknowledged, as judgment can only be rendered for the balance due. But when the defendant denies liability on the entire demand, and pleads in reconvention an amount exceeding the acknowledged indebtedness, the test of jurisdiction is the amount of the judgment which could be rendered in the ease.
    when plaintiff prays for a judgment decreeing him absolutely and unconditionally entitled to a certain percentage of all crops to be raised by the defendant, who is a tobacco grower by occupation, for a period of nine years to come, an .estimate of the amount or value of this claim must necessarily be made by the court in passing upon the question of jurisdiction vel non, and this estimate must necessarily be based upon past crops, independently of possible future contingencies, which it is impossible to anticipate.
    QN APPLICATION for Writs of Mandamus and Certiorari.

      James D. Séguin and Buck, Walshe & Buck for Relator.

      St. Maurice Berault as amicus curiee; Fenner, Henderson & Fenner, Joseph F. Boché and E. N. Pugh for Respondents.
    Submitted on briefs January 20, 1896.
    Opinion handed down February 10, 1896.
    Rehearing refused March 23, 1896.
   The opinion of the court was delivered by

McENERY, J.

The relator instituted a suit in the District Court, parish of St. James, and believing himself aggrieved by the judgment appealed to the Fifth Circuit Court of Appeals. The appellate court rendered a judgment in the case and on rehearing dismissed the appeal of relator for want of jurisdiction ratione material. Relator invokes the supervisory jurisdiction of this court to compel the respondents to take jurisdiction of the cause.

In the brief of the defendants to the original suit there is a discussion as to the stage of the ease when the want of jurisdiction ratione-materia; may be pleaded. It is not discussed in relator’s brief and we presume there is no dispute on this point. But it is elementary that when the cause' of action is not within the jurisdiction granted by law- to the court it will dismiss the suit at any time when the fact is brought to its notice. Riggs & Bro. vs. Bell, 39 An. 1032; Denegre vs. Moran, 35 An. 346; 22 Barb. 221; 23 Conn. 172; 2 Ohio (St.), 26; 13 Vermont, 175; 4 Ill. 133.

It is urged by defendants that a writ of mandamus will not lie to compel an inferior court to reinstate a case it has dismissed for want of appellate jurisdiction. The prayer for relief is: (1) for a writ of certiorari, commanding respondents to send up the record to the end that the validity of the proceedings therein may be ascertained, and (2) for a writ of mandamus to compel the respondents to rescind their order dismissing the appeal and to reinstate the same on the docket of the court.

The right of appeal is granted by the Constitution, and the appellant has the right to go to some appellate court in appealable cases. If the appellant’s case is dismissed because it exceed the upper limit of the jurisdiction of the Court of Appeals, and he should afterward come here, the court of dernier ressort, and we should decide that the amount in dispute was below our lower limit, the appellant would unquestionably be deprived of a cónsiitutional right. To avoid such a contingency, in the exercise of supervisory jurisdiction, we have uniformly held that in a case requiring it we will compel inferior courts to exercise jurisdiction and decide the case, when the amount involved is within their jurisdiction.

In our reports the cases are numerous in which we have exercised such jurisdiction under Art. 90 of the Constitution. State ex rel. Scooler vs. Judges, 47 An. 470; The State ex rel. Negrotto, Sr., vs. Judges, 45 An. 1437; State ex rel. Widow Harper vs. Judges, 33 An. 358; State ex rel. Lacaze vs. Judges, 42 An. 1087; State ex rel. Davidson vs. Judges, 37 An. 109; The State ex rel. Merchants’ Mutual Insurance Company vs. Judges, 33 An. 1070; State ex rel. Winter & Hunter vs. The Judges, 33 An. 1096; State ex rel. McGee, Snowden & Violett vs. Judges, 33 An. 183.

In this case the relator prays for a writ of mandamus, but the writ is invoked as a means of exercising supervisory jurisdiction.

In the case of State ex rel. City of New Orleans vs. Judge Sixth District Court, 32 An. 549, we said it would be “useless to apply to us for the exercise of this power over inferior courts not ■subject to our immediate appellate jurisdiction in any case except where there is a clear usurpation of authority not conferred by law, or a refusal to perform some duty plainly imposed by law and which they have no discretion to refuse, and when there is an entire absence of other adequate remedy.” And in the same case it was ■said that the revisory power of this court should only be exercised through the medium of writs of mandamus, etc.

In the case of State ex rel. Cobb & Gunby vs. Judges of Court of Appeals, 32 An. 774, when the writ of mandamus was applied for under the exercise of the supervisory jurisdiction of the Supreme ■Court to compel the respondents to take jurisdiction, we said: The writ of mandamus is expressly authorized for the purpose of directing a court of inferior jurisdiction to perform some certain act belonging to the place, duty or quality with which it is clothed.” The relief sought here is to compel the respondent judges to perform a •duty imposed upon them by law, if the application for the relief is justified by the facts. The defendants rely upon the case of State ex rel. Liggins vs. Judges, 47 An. 1516. But in that case the respondent court determined its jurisdiction upon facts essentially different from those presented in this case. In the Liggins case there was judgment rendered in the District Court against the relator for seventy-seven dollars, which the court found was the amount in dispute. From this judgment he appealed to the Court •of Appeals, which dismissed the appeal for want of jurisdiction ratione materias. The relator then applied to this court in the exercise of its supervisory jurisdiction to compel the Court of Appeals to reinstate the case on its docket and try the same on its merits. This statement sufficiently shows that the supervisory control of this court over inferior tribunals was improperly invoked, as the apel-late court declined to review the decision of the lower court as to its origninal jurisdiction, which had been passed upon, and confined itself to an examination of the record as presented, which showed that the judgment appealed from was the only one that could have been rendered.

The prayer of plaintiff’s petition in the suit against defendant is as follows:

“Wherefore petitioner prays, the premises and annexed affidavit ■considered, that the said Joseph Louque, defendant herein, be duly cited to appear and answer this demand; that after due proceedings had there be judgment herein against the said defendant and in ■favor of your petitioner in the full sum of eight hundred and seventeen dollars and fifty-two cents ($817.52) with legal interest from •date of judicial demand on one hundred and ninety-one dollars and twenty-five cents ($191.25) thereof, being the amount of the commissions due petitioner on the sales of the year 1893, and with like interest on six hundred and twenty-six dollars and twenty-seven cents ($626.27) thereof upon the specific amounts, and from the respective dates, as set forth in said exhibit G,’ hereunto annexed. And petitioner further prays that there be also judgment herein, •ordering and decreeing that during each of the nine remaining years of the said contract, as set forth in said exhibit ‘A,’ to-wit: from 1893 to 1902, both included, there shall be annual accounting and payment by the said Joseph Louque, defendant-■herein, to petitioner, for his commissions, at the rate of ten per •cent, on the gross selling price of each of the crops of perique tobacco produced by the said defendant in said years, respectively, namely: First, for those of the years 1893 to 1897, both included, upon the basis of the gross sales of the said crop at the rate of thirty-two and one-half (32%) cents per pound for the first-class tobacco and thirty cents per pound for the second-class tobacco, respectively, as fixed in said exhibit ‘B;’ and, secondly, for the remaining five years, 1898 to 1902, both included, upon the basis of •such gross selling price or prices as the same may be shown to have actually realized, said accounting to be had and said payments to be made as the several instalments of such crops shall be shipped and sold by the said defendant.”

There was an agreement filed in the case that the various'accounts filed by plaintiff as exhibits in connection with the said cases, so far as the same set forth plaintiff’s claims for the advances and ■supplies to the defendants, and no further, are not disputed, and plaintiff is dispensed from making proof of items and details thereof, save that the following emendations of clerical errors therein are hereby agreed to be made,” etc.

The contention on this point of the case is whether there was such an admission of liability on the part of the defendant for the ad-vanees amounting to six hundred and twenty-six dollars and twenty-seven cents as to reduce the amount allowed to less than two thousand dollars.

If the suit was against defendant for a certain amount alleged to be due, and he admitted a part of the claim, the test of jurisdiction would be the difference between the amount claimed and the amount admitted to be due. State ex rel. Boyet vs. Judge, 42 An. 982; Stubbs vs. McGuire, 33 An. 1089; Guidry vs. Garland, 41 An. 756; Denegre vs. Moran, 35 An. 346; Girardey vs. City, 26 An. 291.

The only judgment that could be rendered in the case would be the amount of the balance found due the plaintiff. Denégre vs. Moran, 35 An. 346.

The amount necessary to the jurisdiction of the appellate court is the sum in controversy at the time of the judgment. State ex rel. Western Union Telegraph Co. vs. Judge, 21 An. 728.

In this case the defendants deny any liability to plaintiffs, and; plead in reconvention the sum of eight hundred and sixty dollars and seventy five cents. Suppose defendants’ demand in recon-vention had been dismissed, and plaintiff should have recovered .judgment on his entire demand, and the amount should exceed the sum of two thousand dollars, as would be the case here, the defendant would undoubtedly have the right to appeal to this court. The amount is still in dispute, as it has to be considered and passed upon in fixing the liability of defendant and plaintiff respectively and necessarily enters into the judgment.

It frequently occurs in practice, that in order to save expense as to mere formal proofs the attorneys on each side consent to admit reciprocally certain facts in the cause without calling for proofs of them.

This course seems to have been adopted in this case. There was on the part of defendants a denial of any liability to plaintiff. The fact of the advances was admitted, but the defendant says that out of the same transaction, from the same contract, in the bad faith of plaintiffs in disposing of the crops of tobacco, which was the subject matter of the contract, there has arisen a liability to him, more than the amount of the advances.

The admission does not lessen the demand of plaintiff.

“ We have a demand by one of an amount of which we have' jurisdiction, and a denial by the other, that he owes any part of it.” Miller vs. Gidiere & Marmande, 36 An. 202.

The pleadings show an amount of. over two thousand dollars in dispute. Connors vs. Citizens Mutual Insurance Company, 22 An. 331.

In the contract sued on by plaintiff there is a demand for ten per •cent, commissions which would have been realized on non-existing crops, and the question presented is whether for the purpose of Jurisdiction it was necessary to make some estimate of the value of the crops in order to determine the amount of the commissions in order to fix the jurisdictional amount. The court had no jurisdiction without an estimate of the amount involved. It could not render a judgment on mere surmise of what the crops would be, nor was it possible to consider the percentage without a consideration of the amount on which it was predicated. Ten per cent, commission on something that has no existence is meaningless, and when the moment, in order to give it a definite and certain significance, an estimate of the future crops is made, the ten per cent, on the same immediately springs into existence. It is not an hypotheeal and abstract conception of facts which gives jurisdiction. There must be something concrete, tangible and- substantive.

Had the prayer of the petition stopped at the demand for the advances and accrued commissions, although the contract might involve an amount beyond the jurisdiction of the Circuit Court of Appeals, no future contingent liability on the contract could be invoked to confer jurisdiction, as the matter in controversy would be the amount claimed by plaintiff. But he has prayed for the execution of the contract in its entirety, and has asked for a judgment for future commissions to be paid in instalments on the future productive capacity of the plantation. For the purpose' of determining the question of jurisdiction there necessarily must be an estimate of what the commissions would amount to. Smith vs. Insurance Company, 33 An. 1072.

The relief prayed for is denied, and the rule granted here is dis - charged.


source: Caselaw Access Project

author: Nicholas, C. J.

license: Public Domain

text:
    No. 12,013.
    E. Cucullu, Administrator, vs. Brackenridge Lumber Company et al.
    When the judgment of the lower court leaves the rights of parties not clearly defined or fixed hy it, but to be determined hy implication and reasoning, the case will be remanded with instructions to render other juandgment in the case.

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

      Branch K. Miller and James Wilkinson for Citizens Bank of Louisiana, Intervenor, Appellee.

      Louque & Pomes for Defendants, Appellants.
    Argued and submitted March 13, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Nicholas, C. J.

The petition avers that in the month of May, 1888,. the succession of Francois Lacroix was the owner of certain described property in the parish of Orleans. That on the 19th of May said property was adjudicated by the tax collector for unpaid taxes, for the year 1887 to the State of Louisiana, and on the 17th of May, 1893, it was sold by the State Auditor claiming to act under Act No. 80 of 1888 to John Spansell; that he subsequently sold the same to the New Orleans Swamp and Reclamation Company on the 13th June, 1893, and the said company sold a part of the same to the present defendant. That, the said parties are in possession of the-property, claiming ownership of the property respectively possessed by them under said adjudication and sale.

That under an order of the District Court granting him authority to that effect he had, for the consideration of one hundred dollars paid him by the defendant company, intervened in the-sale to it from the Land Reclamation Company and ratified said sale. That in a proceeding instituted by the Citizens Bank, a creditor-of the succession of Lacroix, in which it averred that the adjudication by the tax collector to the State and the sale by the State to Spansel were null and void, for the reason that the taxes of 1887 against said property were assessed in the name of Francois Lacroix, whereas he had died more than eleven years prior to said assessment, because of want of proper legal notices of intended sale in 1888, for taxes made in the year 1887, and because of want of compliance with the legal prerequisites to a valid sale by either tax collector, assessor or Auditor, and that said property was worth at least three thousand dollars, petitioner was ordered by the District Court to bring suit against all parties in interest, to have annulled, canceled and set aside the conveyances of the property referred to in the petition of the Citizens Bank. That the present suit was brought by him under said order of court. In view of the premises, he prayed for citation upon theBrackenridge Lumber Company and the New Orleans Swamp Land Reclamation Company; that after due proceedings, in the event the court should find that said adjudication to the State of Louisiana and sale by the Auditor to John Spansel were and are absolutely null and void, then that, they be so decreed, and that there be judgment in favor of petitioner and against the defendants, decreeing petitioner as administrator of the succession of Francois Lacroix, deceased, to be the-owner of said property, and restoring the same to his possession, and ordering that any and all inscriptions of said adjudication and-sales, which may have been made upon the conveyance records of the parish of Orleans, be canceled. He prayed for general and equitable relief.

The defendants excepted that the plaintiff’s petition disclosed no-cause of action, and prayed that the demand be dismissed.

The Citizens Bank and A. L. Tissot, creditors of the succession of' Lacroix, intervened in the suit, joining the plaintiff and praying that the property be decreed to belong to the succession of Francois Lacroix, and be restored to the administrator of said succession..

They renew, but amplify, the allegations of the plaintiff’s petition, and declare that the adjudication and sales referred to were absolute nullities or should be annulled and avoided by the court. They aver-that at the time the taxes for which the property was adjudicated to the State were assessed, Francois Lacroix had been dead for twelve years, and his succession had been opened in the Civil District Court of the parish of Orleans ever since 1876. The grounds of nullity set up were:

1. Because of the said null assessment.

2. That there was no notice to the tax debtor, or notice of sale of' said property given in accordance with law.

3. There was no previous offering of said property for sale under the provisions of Act No. 80 of 1888, under which act the sale by the State to Spansel purported to have been made, the previous. ■offering being under said act, a condition precedent to the authority of the Auditor to sell. They averred that under a mistake of both law and fact, which they expressly pleaded, the administrator of the succession released, in .violation of law, the rights of the succession of Lacroix to the property sold to the Brackenridge Lumber Company by intervening in the act to it from the Land Reclamation Company, and signing a pretended quit-claim to said property. That said act was procured for the sum of one hundred dollars, when the property was and is worth the sum of seven thousand dollars. That the administrator acted under an order of court granted him through error, both on the part of the court and the administrator. That the order was granted by inadvertence and without authority of and in violation of law. That thh administrator had no right to give away or waive any succession rights at private sale and without the consent of the creditors of the succession, in whom the rights of said insolvent succession were vested, and when the said error of the court was brought to the knowledge of the court by a rule taken by the intervenors herein, the court revoked said order and ordered the administrator to bring suit to have the property restored and he accordingly brought the present suit, but that after an examination of the pleadings filed herein and of the exceptions which have been filed, they considered it absolutely necessary for the prosecution of their interests that they be allowed to intervene and aid in recovering the properties. They prayed that there be judgment against the defendants, decreeing the proparty to belong to the succession of Francois Lacroix, and that it be restored to the ■administrator; that all of the sales of said property be decreed null and void, or be annulled and avoided by the court.

To this intervention defendants filed an exception of no cause of action. They also pleaded the prescription of one, two and three .years to the right of action to set aside the sales as set forth in the petition and intervention. The plea of prescription was by order of •court referred to the merits. The other exceptions to the petition and intervention were overruled. The defendants then answered, pleading first the general issue. They then averred that the taxes assessed against the property were legal and valid; ■that no tax sale can be set aside after prescription has 'accrued. They pleaded the prescription of one, two and three years to the action. They further averred that the property was forfeited to the State prior to 1880 and the State had lost all interest therein. They further pleaded that the administrator was estopped from suing for the recovery of said property, having ratified the same under order of court and the rights of respondents having vested therein. That on the faith of the record, respondent (theBrackenridge Lumber Company), rented certain pieces of property in the neighborhood of and adjoining said property and they can not place themselves in the same position they occupied before the said purchase. They further averred that they have disbursed in the payment of the purchase price three hundred and five dollars, in the payment of taxes one thousand nine hundred and nineteen dollars, and in improvements on said property four hundred and twenty-three dollars; that respondents have paid one hundred dollars to the administrator and that said amount has been placed by him on his tableau of distribution. They prayed that, the suit be dismissed; that there be judgment quieting them in the enjoyment, possession and ownership of the property sued for, and that in case judgment be rendered against them the administrator be condemned to pay them the sum of three hundred dollars within ten days and previous to disturbing them.

The District Court rendered a judgment in the case from which defendant appealed. We have compared the judgment as written with the pleadings and prayers of the parties, and have reached the conclusion that the proper disposition of this ease is to reverse the judgment and place matters back in the position they had just prior to the rendering of the judgment and to remand the canse to the District Court with instructions to it to render another judgment in the cause. As the present one is written, it obviously does not, in its terms, conform to the reasons assigned for judgment, and it leaves the rights of parties not clearly defined or fixed by it, but to be determined by implication and reasoning.

For the reasons assigned, the judgment appealed from is hereby annulled, avoided and reversed, and matters replaced in the position they had just prior to the rendering of the judgment now set aside, and the cause is remanded to the District Court with instructions to render another judgment in the cause, costs of appeal to be paid by plaintiffs and intervenors.


author: ■MilleR, J.

text:
    No. 11,826.
    Brodnax & Co. vs. Steinhardt & Co.
    In the agreement between partners for the purchase in the West and sale in-Europe of grain, the stipulation for the delivery here by the purchasing partner of the grain free on board, the other binding himself to provide the ships for the transportation of the grain is not inconsistent with the collateral-agreement that the terminal charges here — i. e., storage with the incidental necessary inspection, insurance and interest while the grain is stored in elevators, shall be divided equally between the partners, all such charges having been foreseen as apt to arise and incurred owing to the inability^ to provide ships to take the grain as it arrived, of the partner assuming that obligation.
    Interest charges in an account rendered and acquiesced in become part of the amount shown to be due on which subsequent interest may be charged. 12 An. 20; 4 An. 210; 39 An. 791.
    The account rendered and acquiesced in is proof of the indebtedness it exhibits.. 1 G-reenleaf, Sec. 212; 3 Rob. 361; 12 An. 20; 39 An. 971.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Dart & Kernan for Plaintiffs, Appellees.

      Bernard Titehe for Defendants, Appellants.
    Argued and submitted February 27, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

■MilleR, J.

The plaintiffs sue for an amount claimed to be due under an agreement for the purchase and sale of grain, under which the plaintiffs were to buy, the defendants to take charge of the transportation and sale of the grain in Europe, and the profits on the sales to be divided. The suit for a specific sum was met by the exception that plaintiffs’ remedy was to sue for a settlement of the partnership. This resulted in an amended petition and a reference to accountants under defendants’ answer denying all liability and claiming a balance due by plaintiffs. From the judgment in the plaintiffs’ favor defendants appeal.

The course of business of these parties was for the plaintiffs to-buy the grain in the West and the defendants to find the purchaser in Europe. The completion of the transaction was signified by confirmations, as they are termed in the record, passing between plaintiffs and defendants, those of the plaintiffs announcing confirmations of sale to defendants, specifying the bushels of grain and the prices; the replies of defendants, stating their confirmations as purchasers from plaintiffs, of the grain at the price in Europe, for which it was to be sold. In communicating their confirmations, defendants’ form was substantially a confirmation of plaintiffs’ purchase of the specified quantity at a stated price, adding F. O. B., meaning delivery of the grain free on board. In plaintiffs’ confirmation of sales, free on board, is not stated, but the addition is “ subject to our agreement as to expenses,” sometimes omitted, but words used suggesting, in our view, the same idea. This difference in the form of the confirmation points to that, we-conceive to be the real issue between the parties. The defendants’ contention being that F. O. B. excluded any charge by plaintiffs for inspection, storage or charges for interest on the money advanced on th.e purchases; the plaintiff insisting it was agreed that such items, called terminal charges, were to be borne equally in the settlement of accounts, hence the wording of their confirmations subject to expenses according to agreement. Under the plaintiffs’ contention, they were entitled to credit for one-half the selling price in Europe, less ocean freight and insurance and such interest as defendant might pay, and to one-half besides of the terminal charges here paid by them. To this division of these terminal charges defendants, strenuously dissent.

It is in proof that the transactions between these parties were in. progress from September, 1891, to March, 1892; that the confirmations were exchanged in respect to each transaction, and that plaintiffs rendered their accounts. In all this intercourse there was no objection to the account, save as to these terminal charges. By agreement of the parties the accounts were referred to their respective book-keepers; the book-keeper of the plaintiff reported the correctness of the accounts with the terminal charges in dispute, the book-keeper of defendant, his colleague testifies, agreed to the report, but after conferring, as. we infer from the record, with defendants, declined to sign it. We think the accounts carry the force-resulting from their rendition and the absence of any objection save as fco the terminal charges. 1 Greenleaf, Sec. 212; Shaw vs. Oakey, 3 Rob. 361; Keane vs. Branden, 12 An. 20; Allen, West & Bush vs. Nettles, 39 An. 791. In this court the discussion has been devoted mainly to the terminal charges, in the appreciation of both parties the controlling issue.

The testimony for plaintiff is that these terminal charges were to be divided. That of defendants is to the contrary. It is not disputed plaintiffs were to buy; that defendants were to purchase, paying the selling price in Europe; that they were to furnish the ship contracts, i. e. the ships to carry the grain, the profits to be divided on the basis of the selling price in Europe, less ocean freights and insurance. The terminal charges were for storage, inspection fees, insurance and interest on the advances to buy the grain, all arising on this side and due entirely to delay in shipping the grain. All this was foreseen, is the testimony of defendants, and as these charges would arise from the ships not being on hand, and which it was defendants’ engagement to furnish, it is testified, it was agreed that along with the f. o. b. stipulation was the agreement to share the terminal charges. The payment of these charges by defendants, we conceive established. If the defendants’ contention succeeds, the whole of these terminal Changes will be thrown on plaintiffs. The profit to be divided is the .difference between the purchasing price of the grain and the selling price on the side, less freight and insurance paid by defendants charged under the agreement with the transportation. On defendants’ theory they are to be reimbursed all charges they paid, and with these deductions, get one-half of the selling price. Their construction excludes plaintiffs from any reimbursement of the ’’charges they paid for storage, inspection requisite before grain can be put in elevators, and insurance incurred on this side, because the ships to be furnished by defendants were not on hand. If the agreement proposed an equal division between those partners, the defendants’ construction is not in accord with that purpose.

In the conflict between the testimony of one of the plaintiffs and the member of defendants’ firm, testifying to the agreement, defendants largely rely on the f. o. b. stipulation. In the ordinary contract between purchaser and buyer that stipulation would undoubtedly bind the purchaser for the price only, when the commodity at the buyer’s expense is on board the ship. In this case the contract was between partners, one of them engaging to furnish the ships. The ships could not be had to take the grain promptly, and if on hand at the time there would have been no occasion to store the grain in the elevators, or for the consequent inspection fees, or insurance or interest on the purchase money for the period of delay in shipping the grain. In view of defendants’ engagement to provide the ships, it seems to us the f. o. b. stipulation does not carry its usual force, that is, does not necessarily exclude the additional collateral engagement as to tei’minal charges here, due to the inability of defendants to have ships on hand to take the graiD. This view, we think, removes any supposed inconsistency between the f. o. b. stipulation and the qualification insisted on by plaintiffs. Their interpretation seems reasonable. The course of the business of these parties is, we think, significant against defendants. In their own accounts, after these terminal charges had been the subject of some discussion, such charges were recognized. We have noticed defendants’ contention that these accounts were furnished by their clerk, not aware of the agreement, in the absence of the member of the firm cognizant of the subject, and were rendered at the instance of defendants. The agency of plaintiffs in procuring the rendition of these accounts is not supported by proof. When plaintiffs became importunate for a settlement these terminal charges were disputed, but for a length of time the accounts of defendants importing the recognition of such items elicited no dissent. The inspection fees defendants insisted should be according to the course of trade borne by the parties in the West. As we gather from the record that charge is usually paid on this side, and there is no basis exhibited in the record or indicated in the brief of defendants on which we can reject that item. The discussion as to that item carries its force with reference to the other terminal charges. There is another part of this record which in our view must have its weight. Early in the course of these shipments the defendants objected to some of these charges. The objection was met by the plaintiffs’ insistence that the charges were part of the agreement and payment followed. Then to settle, we presume, the question for the' future plaintiffs addressed defendants a letter in which the agreement was plainly set forth according to plaintiffs’ appreciation, that is, that the grain to be delivered here on board at the cost in the West, one-half the profit and the terminal charges to be divided equally. If the parties differed in their understanding of the oral agreement then there was none arising out of their intercourse. But this letter in distinct terms laid the basis on which the plaintiffs pro - posed to continue the transactions and affirmed the plaintiffs’ view of the agreement. To that letter there was no reply. If not concurred in by defendants it was their natural course to dissent and the shipment's would doubtless have stopped at once and this controversy would have never arisen. But the shipments went on, the plaintiffs paying the terminal charges, relying on reimbursement of half the amounts. In the confirmations of the defendants f. o. b. occurs with no reference to terminal charges, while in those of defendants f. o. b. is accompanied with the statement of the divisions of the terminal charges here as per agreement. We find no dissent on this point coming from defendants until after the transactions were closed and the plaintiffs were seeking a settlement. It is our conclusion the agreement contended for by plaintiffs is sustained by the testimony and confirmed by the course of business of the parties. The lower court gave very careful attention to the controversy and with the additional assistance- to a proper solution afforded by ihe personal observation of the manner in which the witnesses testified, the lower court reached the same conclusion to which we are brought.

An account rendered and accepted exhibiting the amount due authorizes, we think, the charge of subsequent interest on that amount, although interest accrued is included in the account, and this, in our view, is an answer to the question raised by defendant as to interest charges.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Breaux, J. Watkins, J.

text:
    No. 11,978.
    John E. Hewett, B. F. Jenkins and John B. Williams, Sr., for the Use and Benefit of Creditors and Stockholders of the Traders Bank of Mansfield vs. T. J. Williams, Jr., and His Wife, Mrs. Florence P. Williams.
    THE PLEA 01? NO CAUSE 01? ACTION.
    The personal liability arising out of the act of converting another’s property (or property on which he has a lien) can not be avoided and frustrated by the fact itself of the conversion.

      KBS JUDICATA.
    The judgment pleaded as res judicata declared that the dation could not take effect to the prejudice of the plaintiff’s debt before the court for adjudication; that is, the matured debt. The judgment could not deal -with the notes not matured and the privilege by which they were secured. A judgment on a plea of prematurity is no support for the plea of res judicata.

    NOT A THIRD PERSON WITHOUT NOTICE.
    The intervenor was informed of plaintiff’s privilege on the two notes sued on in the first suit and in the present suit, and therefore must have known of the existence of this claim before the proceeds of the cotton came into her hands. The intervenor was bound to discharge the debt out of the funds in her possession; failing to thus discharge it, she became personally responsible.
    APPEAL from the Ninth Judicial District Court for the Parish of DeSoto. Land, J., ad hoc.

      Lee & Liverman for Plaintiffs, Appellees.

      J. F. Pierson and C. W. Elam for Mrs. Williams, Defendant, Appellant.
    Argued and submitted December 21, 1895.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues the defendant, Mrs. Williams, for a debt contracted by her husband, to make a crop of cotton on his plantation.

The defendant pleads the exception of no cause of action, res judicata, and in her answer she pleads that in a former suit the proceeds of the cotton claimed here were delivered to her, and that neither the cotton or the proceeds are in her possession.

The judgment was pronounced against her, and she appeals.

The prior suit pleaded in defence was brought on notes, two of which had not matured at the time the suit was brought.

The following is our summary of facts:

Two of plaintiff’s notes had not matured at the date that suit was brought by him, and one hundred and thirty-six bales of cotton were attached and sequestered. The defendant in that first suit released the. sequestration on a forthcoming bond. Although the property was released under that bond it remained seized under a writ of attachment plaintiff sued out at the same time that he obtained a writ of sequestration. Later the plaintiff obtained an order for the sale of the property pendente lite; the property was sold, and realized four thousand two hundred and eighty-six dollars and eight cents.

Mrs. Williams about this time intervened.

With reference to her averred rights the following is an extract from an admission of record binding upon all parties:

That the evidence taken in suit 5038 showed that the suit was brought and the writ of sequestration obtained in that case by the plaintiff J. E. Hewitt during the forenoon of December 12, 1893, an'd before 12 o’clock M.; that the writ of sequestration was issued before noon, and sent to the sheriff of Red River parish, and that the dation en paiement was made at 3 o’clock in the afternoon of the same day, and that the delivery of the property in Red River parish was made between 5 and 6 o’clock p. m. on same day, December 12, 1893 * * ■ *

The evidence further showed that the writ of sequestration was served on T. J. Williams, Jr., on December 12, 1893, before the dation en paiement was signed.”

In this condition Mrs. Williams intervened, asserting her dation en paiement embracing the cotton seized by plaintiff under his privilege for a debt not disputed, though as to a part not matured (the maturity however being near at hand), she received the proceeds of the cotton in question made with the aid of plaintiff’s advances.

Taking up the attachment we see that it was dissolved by a judgment of the District Court. It was in matter ot this attachment that the intervenor furnished bond, and obtained possession of the property which had been previously sold under an order of court authorizing the sale of property attached. From the judgment no appeal was taken.

In the former suit, the suit in which the attachment was dissolved as just mentioned, judgment was pronounced in favor of Hewitt for the amount of his debt on the matured note with privilege on the cotton seized. The court dismissed his suit on the two unmatured notes, but maintained the sequestration to enable him to assert his privilege in a new suit on the two notes at their maturity1. The District Court in this judgment maintained the dation en paiement by T. J. Williams to his wife.

On the appeal taken from this judgment this court maintained the .judgment in Hewitt’s favor for the debt due and his privilege on the cotton; affirmed the dismissal as to the notes not due; set aside the reservation continuing in force the sequestration to await the second suit; and as to the dation en paiement, this court held that Mrs. Williams took the property subject to the privilege in favor of Hewitt, and recognized her right to payment out of the proceeds of the cotton, to the amount of her matured debt. J. E. Hewitt vs. T. J. Williams, Mrs. F. P. Williams, Intervenor, 47 An. 742.

The present suit is for the privileged debt of Hewitt, not matured when the first suit was brought, and presents the issue whether Mrs. Williams, under her dation en paiement, holds the proceeds against Hewitt despite his privilege resting on the cotton and the suit in which it was claimed at the time she obtained the proceeds by furnishing a forthcoming bond.

THE PLEA OF NO CAUSE OP ACTION.

Tins plea, as we interpret the pleadings and appreciate the argument, rests on the theory that the suit is hypothecary or in revendication of the cotton or its proceeds and that, therefore, it must be directed against the property, there being, it is urged, no personal liability of Mrs. Williams. (The cotton having béen •disposed of and the proceeds no longer in her possession she avers.)

If the liability alleged by plaintiff is answered by intervenor’s use of the proceeds, and her defence is thereby established, it could have been supplied by her at any moment after she received the proceeds, by disposing of them, although such was not the con■dition of the order under which she was permitted to bond and take possession.

If such be the case, if, after disposing of the proceeds, she was no longer responsible for them, practically the liability never existed. There is, it strikes us, an error here.

The personal liability arising out of the act of converting another’s property (or the property on which he had a lien) can not by the fact itself of the conversion or the disappearance of the converted property be defeated. This is not the hypothecary nor the action in revendication to be paid and satisfied by Mrs. Williams out of the funds; or by causing the disappearance of the cotton from which the proceeds were derived. The question is one of personal liability for applying property to her own use, although she knew that it was subject to plaintiff’s privilege, and that he was attempting to-enforce that privilege at the time she received the proceeds representing the property.

THE PLEA RES JUDICATA.

If it has been decided that a dation enpaiement by the husband to the wife frees the property from all liens then existing, made at the-time and under the circumstances before stated (the service of the suit had already been made on the husband at the moment of the dation), such final judgment becomes binding, if not as authority, at-least as conclusive between the parties.

Let us see if this was this court’s action.

The res judicata relied upon is the first judgment maintaining the-dation en paiement in which the exception of prematurity was maintained on the notes sued upon in this case.

The District Court, in view of the hardship upon the privileged creditor, who would be made to lose because his debt was not due at the moment he instituted suit, retained the sequestration in force-until he could bring his new suit at the maturity of his notes. This court, on the appeal from that judgment, maintained the dismissal, but reserved the reservation and dismissed the sequestration.

The notes now sued upon passed out of consideration. As to these notes there could be no adjudication, save that of dismissal, but the judgment in that case decreed that the dation in question could not-take effect to the prejudice of plaintiff’s debt, that is the matured debt. The court distinctly says that a dation, though permitted in any condition of the husband’s affairs, can not defeat existing liens on his property, and if the notes now sued on had been due and owing the judgment would have included the amount they represent, and this controversy never would have arisen. The defence of res judicata is met by the fact that the court could not pass upon the liability arising on the unmatured notes. It is asserted that Hewitt, might have issued another writ of sequestration after the judgment, of dismissal. It is also asserted that- he might have filed a supplemental petition in the pending suit when the notes matured.

After the first suit, brought on notes matured and unmatured,, there was no occasion for a sequestration. The object of the sequestration is to seize the property on which the privilege rests. The cotton was taken from the custody of the court under a forthcoming-bond. If Hewitt had any right at all it was against the intervenor-who had received the property subject to the privilege.

In the recent case of State ex rel. Gondran vs. Judge, 48 An., we held that the intervenor bonding can be made liable on the bond,, although a dismissal had been entered; in other words, that the forthcoming bond, even as to third persons, has relation to the debt the writ enforces.

As to the supplemental petition, it would necessarily have changed the issues set forth in the original petition. It necessarily would have given in that case rise to the issue of personal liability of Mrs. Williams, an issue in reality different from that presented in the first, suit. Hewitt was under no obligation to assert this demand, by supplemental petition, as it was different, as we have just stated, from the issues it originally presented.

The general rule that the litigant must allege all his grounds for or against the relief he asks can not, we think, in reason and under the authorities, be extended to a right not susceptible of enforcement when he brings his suit, when it is excluded from cognizance by the express terms of the judgment that it is claimed binds him, and when the demand is necessarily entirely different from his cause.of action in the suit, the judgment in which is pleaded as res judieata.

It is elementary; the judgment on an exception of prematurity-will not sustain the plea of res judicata.

NOT A THIRD PERSON WITHOUT NOTICE.

• We are not impressed by the proposition that the wife was a third possessor in possession of the hypothecated property.

At the moment that the property was transferred to her she had knowledge or it must be presumed that she had knowledge of the privilege; the community had not been dissolved; it was dissolved some time afterward. She was a member of the community; and a possible beneficiary from the proceeds of crops made upon property of the community, of which she became the owner as we have-stated.

She can not, by intervention and bonding, gain an advantage to the extent of defeating one who had aided, by advances, in making the crop.

In the first ease the court held that the privilege for the matured privileged debt did follow the property in the hands of Mrs. Williams.

We recur to these proceedings and recall the views expressed by the members of the court.

The opinion of the Chief Justice on the refusal of the rehearing was that the case required no determination of the general question presented on the application.

Mr. Justice Miller expressed the opinion that the good faith of the purchaser of property, subject to the privilege, was the important test of his right to hold the property.

Mr. Justice Watkins was of the opinion the privilege of Hewitt was cut off by the elation en paiement. J. F. Hewitt vs. T. J. Williams, Mrs. F. P. Williams, Intervenor, 47 An. 742, 752, 753, 764.

Oan good faith here be successfully invoked?

The husband, in the first suit, succeeded in defeating a portion of the claim on the matured notes. Pendente lite, the wife intervenes, and owing to the successful defence of prematurity and her forthcoming bond she was enabled to receive and apply to her uses the proceeds of the property subject to the lien of the husband’s creditor. If knowledge or the presumed knowledge is a controlling •element in the subject of good faith, the record discloses that element.

The jurisprudence of this State maintains that the insolvency of the husband is no impediment to the transfer to pay her claims. 'The wife is favored over other creditors, it has always been held: Rut it would be carrying the principle beyond all limits heretofore declared to hold that a dation en paiement entitles her to receive his property to the prejudice of his creditors with privilege on property on which they are seeking to enforce the claim at the very moment of the adjudication.

If intervenor’s demand should be granted, at one moment she would have been interested in the crop represented by her husband, as head and master of the community, and the next moment she would have been a third person holding the property through the legal proceedings of the court, under a judgment in which it was decreed that the claim was secured by privilege.

There was here an implied trust in favor of the creditor bearing upon the property. Story on Equity Jurisprudence. There is a ■decision in point pronounced by the Supreme Court of the United States—Ellet vs. Butte et al. The factor had, in payment of his; debt, received and applied the crop he knew to be pledged for the-rent of the plantation and on the suit of the lessor. It was held-that the factor was liable to the lessor for the proceeds of the crop.

Our own decisions are not less instructive upon the subject, notably Fetter et al. vs. Field et al., 1 An. 80; E. R. Cory vs. Allen W. Eddins, 13 An. 443; Bres & O’Brien vs. S. C. & J. A. Cowan, R. W. Faulk, Intervenor, 22 An. 438.

If in these cases the lien prevailed against those who had given value for the property and were in possession, a fortiori should it-prevail against the wife who, with knowledge, has taken the property subject to the lien of the husband’s creditor.

The privilege of Hewitt was not defeated by the dation. Her-liability rests upon the fact that, aware of his right, she received- and applied the proceeds of the property.

The judgment appealed from is therefore affirmed.

DissbNting Opinion.

I.

Watkins, J.

This suit has for its object to make the defendant,. Mrs. F. P. Williams, liable for the proceeds of certain cotton which her husband, T. J. Williams, gave to her in payment of his para-phernal indebtedness; and to this demand her answer is that after it had been given to her plaintiff wrested it from her possession by means of writs of sequestration and attachment — one of which was dissolved and the other satisfied — and she is no further amenable to-the plaintiff therefor.

This suit is a supplement to Hewitt vs. Williams, 47 An. 742, and it is founded upon the notes which were non-suited therein, because-same were not due when suit was filed — the writs of sequestration- and attachment therein having embraced the entire series of the defendant’s notes, those which were not as well as those which were-due.

Plaintiff’s theory in the instant case is that because the judgment-in the former case recognized his to be a privileged debt bearing-upon the crops of T. J. Williams, he is entitled to a judgment compelling her to restore the proceeds of the cotton which came into her-possession notwithstanding the non-suit as to two of the notes sued upon.

There is no controversy as to the indebtedness of T. J. Williams •orwith reference to the privileged character thereof; bub the question is whether Mrs. E. P. Williams is now responsible therefor.

In the former suit it was decided that plaintiff had the legal right to seize out of her possession cotton on which his privilege rested for the plantation supplies he had furnished her husband; and that a ■dation an paiement thereof did not protect same from sequestration •or attachment notwithstanding same was perfectly valid, made in discharge of a preference debt many years recorded and evidenced by ■a judgment.

In this suit Mrs. Williams’ answer does not invade the domain of the res adjudieata of that case, or seek to carry the court over the ground which it has once traveled in arriving at its conclusion; notwithstanding that same was done with some difficulty, as the several opinions of the justices attest.

On the contrary, it is she who specially pleads that conclusion and judgment as forming res adjudieata in her favor, and as conclusively •barring plaintiff’s right to further pursue her for the proceeds of the •cotton which was given to her in satisfaction of her paraphernal •claim by her husband.

Her insistence is, that property of which she is the owner bona fide, was sequestered, attached and taken out of her possession by plaintiff; and that he caused same to be subsequently sold at public outcry, and converted into proceeds, which were substituted for the property. That, prior to the sale, defendant, T. J. Williams, gave bond for the property and dissolved the sequestration; and, subsequent to the sale, Mrs. E. P. Williams, as intervenor, gave bond for the proceeds and dissolved the attachment. That, several months subsequently, a trial was had and a judgment rendered, which dissolved the attachment and maintained the defendant’s plea of prematurity as to the entire debt of defendant, except about one thousand two hundred and fifty dollars.

That, notwithstanding the non-suit, the judgment maintained the ¡sequestration in its entirety, to await the filing of a new suit; but the decree of this court amended that portion of the judgment, and restricted same to the matured■ part of the defendant’s indebtedness for which he had obtained judgment.

That she subsequently paid off that judgment for her husband, and •discharged him from the sequestration entirely, and that, in conse■quence of said proceedings and decrees, she has become exonerated completely from all liability to the plaintiff on account of her possession of the proceeds of said cotton.

That conceding the rightfulness and legality of the plaintiff’s sequestration and attachment of the cotton which had been given to her in part payment of her paraphernal claims in the first instance, the plaintiff exhausted his resource against same in that suit, and is without right to any other in the instant case.

That the notes on which this suit is predicated having been •embraced in the former litigation, and come to their maturity soon after it was commenced, the duty was imposed upon the plaintiff to have filed an amended petition, and procured additional writs of sequestration and attachment while the property was in the hands of the court, and before it had been converted into proceeds and bonded by her; and, having failed to exercise this plain, legal remedy, the plaintiff is without right to proceed against her, having had his day in court, and suffered a loss, if any, through his own fault and negligence.

That plaintiff’s privilege entitled him to proceed against the res, and have it seized and sold to pay his judgment, but his judgment having been satisfied he has no right to pursue her judicially, forsooth the res passed through her hands, or because they were consumed by her aiter she had given a forthcoming bond, and been released therefrom by a judgment.

The District Judge gave judgment against Mrs. F. P. Williams, commanding her to restore the proceeds, and from that judgment she has appealed; but T. J. Williams acquiesced in the judgment.

It is a significant fact which must be observed that no moneyed judgment was asked for and none was rendered against Mrs. Williams, and the proof clearly shows that the proceeds of the cotton had been consumed and were not in esse when this suit was filed.

Taken chronologically the proceedings and incidents of the former litigation may be related as follows, viz.:

The former suit was filed on the 13th of December, 1893, in the parish of De Soto; and the sequestration was levied upon the crop ■on defendant’s (T. J. Williams) plantation, in the parish of Red River, -on the day after, and taken into possession by the sheriff without previous notification to Mrs. F. P. Williams.

On the 16th of December the defendant gave bond and dissolved the sequestration, but did not procure its release from the attachment which was subsequently filed.

On the same day on which the plaintiff’s suit was filed and prior to the levy of the writs, the defendant made a dation en paiement to his-wife of one hundred and thirty-six bales of cotton, and actually delivered same to her; but same was subsequently sequestered under plaintiff’s writs and taken out of her possession and afterward attached.

On the 19th of January, 1894, the plaintiff obtained an order of court for the sale of all the cotton which had been attached, and same was sold on the thirtieth of that month — the sale realizing the sum of four thousand three hundred and fifteen dollars.

On the 29th of January, just two days previous to the'sale, Mrs. F. P. Williams filed an intervention claiming the ownership of the cotton which was covered by the dation; and on the 16th of February following she gave bond under the attachment for that portion of the proceeds which represented her cotton, and same was released to her.

Mrs. Williams filed her suit against her husband for a separation of property, a dissolution of the community, and a money judgment,, on the 22d of January, 1894, prior to the filing of her intervention, and recovered a judgment on the 3d of February following; but, under the express terms of the Code, that judgment related back to and took legal effect from the date her petition was filed. R. C. C. 2432.

Consequently, she was judicially separated from her husband, and her judgment recognizing and making her debt executory against him was rendered prior to her intervention and the judicial sale of her cotton.

That judgment recognized Mrs. Williams’ legal mortgage from the date of its registry on the 10th of February, 1879, many years prior to the existence of plaintiff’s claim, and decreed her entitled to recover from her husband twelve thousand four hundred and seventy - five dollars and thirty-seven cents, and nine thousand and thirty-nine dollars and fifty-eight cents, less the value of the cotton which was given to her in partial payment thereof; and it also recognized the act of giving in payment as valid and legal.

To the demand of the plaintiff, Mrs. Williams, as defendant in this suit, tendered a plea of no cause of action, and followed it with a plea of res adjudiaata, predicated upon her intervention in the former suit and the judgment thereon rendered; averring that all the matters and things as to her, which are set forth in plaintiff’s petition in this suit,, were finally adjudicated and decided in the final judgment of this court in the former suit. That same constitutes a bar and an estoppel against him in this cause as to all the demands he has urged for relief against her; as well as to all those which it was competent for him to have raised therein.

II.

In order to clearly understand the situation of the case at the date of our decree, it will be necessary to look into the judgment which the District Judge rendered, and compare it with our own. The judgment of the District Oourt was rendered on the 28th of April, 1894.

The transcript in the former case was made part of the transcript in this, and reference to it discloses that there were three distinct judgments rendered therein, on the same date and at one time.

The first one was that in favor of the plaintiff and against the. defendant, T. J. Williams, the purport of which is as follows, viz.:

That the plaintiff’s privilege as furnisher of necessary plantation supplies be recognized and enforced upon the crops raised by the defendant during the year 1893, “ and sustaining and enforcing his sequestration thereon, except that portion of the crop included in the daiion en paiement of December 12, 1893, from the defendant to the intervenor.”

The sums recognized as being secured by privilege are the following, viz.: the sum of one thousand and fifty dollars; one hundred! and fifty dollars; three thousand seven hundred dollars, “and foi-the sum of nine hundred and sixty-nine dollars out of the account of one thousand nine hundred and forty-five dollars and sixty-six cents.”

It further ordered that the privilege claimed on all other items be rejected and disallowed.

“ That the plea of prematurity filed by the defendant as to the two notes of one thousand and fifty dollars and three thousand seven hundred dollars be sustained, and the plaintiff’s demand for a personal judgment * * * be dismissed as in the case of non-suit, with leave to the plaintiff to bring his suit on said notes in the furaré; and it is ordered that the writ of sequestration for the amount of said two notes be sustained till said plaintiff can obtain personal judgment on said notes.”

The second was that in favor of the intervenor, against the plaintiff, the purport of which is, viz:

That she be decreed “the owner, in her own separate right and claim, of all the property mentioned, or described in the act of giving in payment of the 12fch of December, 1893, * * * said property being one hundred and thirty-six bales'of cotton,” “and other articles therein particularly described;” “and it is further ■ordered that said property be released and delivered to her.”

The third was that in favor of defendant, T. J. Williams, against the plaintiff, the purport of which is a3 follows, viz.:

That, on the trial of the motion to dissolve the attachment, “ the plaintiff's counsel, in open court * * * having conceded that the' sureties on the attachment bond * * * are not good and sufficient in the amount of said bond * * * the said writ of attachment was then ordered by the court to be dissolved on that ground alone * * * and, consequently, the same is hereby ■dissolved and set aside.”

From the first judgment the defendant appealed, and from the second the plaintiff appealed; but in the third the plaintiff acquiesced and did not appeal.

The status of the case then was, that plaintiff’s privilege on the ■defendant’s crop of 1893 was recognized as securing the sums of one thousand and fifty dollars, three thousand and seven hundred dollars, one hundred and fifty dollars and six hundred and sixty-nine dollars and fifty cents with interest; not however to affect the cotton received by intervenor under the dation.

The defendant’s plea of prematurity was sustained as to the two notes of one thousand and fifty dollars, and three thousand seven hundred dollars, as of non-suit; and as to these amounts the sequestration was maintained in statu quo until plaintiff could obtain in a future suit a personal judgment against the defendant.

The attachment being dissolved and the judgment of dissolution having been acquiesced in, the property and its proceeds were released from seizure under the writ of attachment and the intervenor was discharged from her obligation on the forthcoming bond.

But on appeal the status was altered in two particulars; (1) so as “to avoid that part (of the judgment) which maintained the sequestration on the unmatured notes at the filing of the suit until suit should be filed to perfect the sequestration;” (2) so as “to avoid that part of the judgment, also, which exempts from the enforcement of plaintiff’s privilege the crops sold to the intervenor in the elation en paiement.” Hewitt vs. Williams, 47 An. 752.

The alteration is attested by this further statement in the opinion, viz.:

“The judgment in favor of the intervenor is amended so as to ■order the delivery of the property described in the dation en paiement to her, only after the satisfaction of plaintiff’s privilege, as recognized in the judgment in her favor. In other respects it is ■affirmed.” Ibid.

The question then arises as to what privilege did the property of the intervenor become subject by the amendment of the judgment ■appealed from ?

The plea of prematurity as to the two notes of one thousand and fifty dollars and thirty-seven hundred dollars having been sustained by the District Judge, his judgment in this respect was affirmed; but that part of the decree maintaining the sequestration until plaintiff could obtain a personal judgment was amended and eliminated completely. Hence, in that case, there was nothing left on which the ■decree could rest with respect to those two notes, or the privilege securing them. The notes, as well as the privilege, passed out of .that case along with the dissolved sequestration; and the defendant, 'T. J. Williams, was thereby discharged from the bond he gave to ■have the property released from the grasp of the writ of sequestration, save and except with respect to the sum, of one hundred and fifty '■dollars, and nine hundred and sixty-nine dollars and fifty cents, for which plaintiff obtained judgment.

But the proof shows that the intervenor has paid said sum in full, with interest and cost, since the rendition of our final decree.

Just here it must be observed that the defendant’s plea of res ad-judícala comes into operation; and it is founded on the final judgment of this court upon the intervention, and not upon the judgment of won.-suit on the two notes aforesaid, as the judge a quo supposed.

Her counsel’s contention is, that inasmuch as the reserve of the judgment of the District Judge which maintained the sequestration -after the non-suit, was reversed and set aside, the only condition that was imposed, or could have been legally imposed upon her dation, was that of satisfying the plaintiff’s privilege as recognized! in the judgment.” That having paid and satisfied that judgment her cotton is fully released from the condition thereon imposed, and that no further demand can be made upon her. That she is protected by that judgment and the satisfaction of same.

Her position seems to be clear and undoubted. Otherwise this, court would not have been at the pains to amend the judgment appealed from, reverse the reservation therein contained, and dissolve the sequestration quoad hoe.

To hold otherwise is illogical.

Not only so, but defendant’s counsel attract our attention to the-very significant fact, that while the original suit was filed on the 12 th of December, 1893, and the note for three thousand seven hundred dollars went to maturity on the 15th and 18th of the same month, and that for one thousand and fifty dollars went to maturity on the-lst and 4th of January, 1894; plaintiff permitted the cause to go to. judgment on the 28th of April, 1894, without tendering an amended-petition after the notes became due.

And defendant’s counsel argue with great plausibility and force that the demand of the plaintiff, under the circumstances, is inequitable and unjust.

This court held, by a majority of' its justices, that the wife’s title by dation was subordinated to the plaintiff’s privilege to the extent that it gave judgment only. Sureiy its decree could extend no further, particularly in view of the effect of its amendment of the judgment appealed from, maintaining the sequestration for the benefit of a future suit. This is the suit therein contemplated, and it comes into court bereft altogether of the District Judge’s reservation.

Plaintiff had, in the original suit, the opportunity of defending against the intervenor’s claim of ownership on the ground set up in the instant suit. He could have alleged in the alternative that if her title to the cotton was valid that it should not be delivered until his. privilege was satisfied in toto. But he did not do so.

On the contrary, he provoked a sale of the cotton pendente lite, against the defendant’s protest, which reduced it to proceeds in the face of Mrs. Williams’ intervention claiming it, and she having subsequently bonded the proceeds, the dissolution of the attachment freed same from the grasp of the law and enabled her to use them at will, subject only to the effect of the sequestration, in so far as it was 'finally maintained by the judgment of this court.

Both the cotton and its proceeds have gone beyond the power of the court to recall either of them.

Had the plaintiff amended his petition after the two aforesaid notes became due and supplemented his writ of sequestration prior to the day of the sale of the cotton on the 81st of January, 1894, he could have held and subjected it to his entire claim on the theory entertained by this court that the property conveyed by the dation passed cum onere.

There was an interval of six weeks within which he could have availed himself of that remedy, and he is without ground of complaint on the score that this court has recognized the existence of his right, but has declined to afford him a remedy.

Plaintiff has had his day in court, and it is his fault that he did not avail himself of the remedy suggested.

Plaintiff asks no money judgment against Mrs. F. P. Williams. This is not an action ex delicto, or ex contractu, or ex quasi contractu; nor is it any hypothecary action. He seeks to compel the defendant to make restitution of property he had caused to be sequestered and attached. Of property he caused to be sold and reduced to proceeds pendente lite; and, consequently, lost control of by furnishing insufficient sureties on his attachment bond, and failing to amend his petition and sequestration before the sale took place.

III.

The judge a quo cites, in support of his decree, no other authority than Cory vs. Eddins, 13 An. 443. It is a very brief decision, and •contains but one sentence which is at all applicable, and that is as follows, viz.:

“Both parties were aware of each other’s privileges upon the cotton raised by their common debtor, Tiffee, which was shipped by the defendant; and there was no such bona fide sale of the lot to either of them as to defeat the privilege of the other.”

The manifest significance of that decision is, that as the sale of the cotton was not in good faith, the privileges were not affected thereby.

Per contra, it was said in Heirs of Thompson vs. Bell, 4 La. 451, that “a mortgagee who has a lien upon property which has passed into the hands of another, other than the mortgagor, is not a credi-' tor of the third possessor; he has a real right which he may exercise on the thing, and nothing more; a right which is confined to the object affected, and ceases with its destruction; which producing only responsibility on the possessor ceases to produce any when the possession terminates.

If this action should be maintained, it is not seen on what grounds any person through whose hands the thing subject to the lien has passed, could be made responsible for the price received by him for it; but this could not be seriously contended for.” (Oui* italics.)

That doctrine being applicable to mortgaged property, it is even more applicable to a lien on movable property, which has no domicile or situs; and it is evidently true that Mrs. Williams is not bound to make restitution to the plaintiff after the cotton which was sequestered and attached in her hands, has passed through litigation,, and has been long since consumed.

When she gave a forthcoming bond for the proceeds of her cotton and released it from seizure, it passed beyond the plaintiff’s control and that of the court, and plaintiff’s lien was transferred from the cotton and its proceeds to the bond which was substituted for it.

She became legally entitled to use the proceeds at will and incurred no liability to the plaintiff whose only recourse was upon the forthcoming bond; but when the judgment of the court dissolved the attachment she was released and discharged therefrom.

Mrs. Williams came under no contractual relations toward the plaintiff, Hewitt, or his assigns, on account of the sequestration, as she was neither party nor privy to the forthcoming bond her husband gave in order to procure the release of the cotton from seizure thereunder.

Considering that the decree of this court had subjected her personally, on account of her having received under dation entpaiementf a portion of the crop on which the plaintiff’s lien rested to the extent that it affirmed the judgment of the District Court against her husband and no more, she voluntarily paid off that judgment so as to relieve herself from any further responsibility; but she did this notwithstanding she was andel no legal duty or obligation to do so.

The defendant, T. J. Williams, having given a forthcoming bond for the release of the cotton from the sequestration, would have been still responsible thereunder for the restitution thereof if he had not been released therefrom by our decree, with the exception of one thousand two hundred and fifty dollars, which Mrs. Williams paid in full with interest and cost.

With this statement of the former case in view let us look into the authorities, and ascertain what are the respective obligations of T. J. Williams, defendant, and Mrs. F. P. Williams, intervenor, under their respective forthcoming bonds, and what were their respective situations after the final judgment of this court was rendered.

(a) First with respect to the sequestration.

The condition of the forthcoming bond for the release of movable property from sequestration is that the obligor shall be responsible that same shall not be sent away from the jurisdiction of the court; “ that he shall not make an improper use of same, and that he will faithfully present them,-after definitive judgment, in case he should be decreed to restore the same to the plaintiff.” C. P. 230.

In Downey vs. Kenner, 42 An. 1129, it was held that sequestered property which had been bonded by the defendant remaining in his-possession afterward is still his property “ until the title has been divested in due course of law.”

In Phifer vs. Maxwell, 28 An. 862, it was held that, as the inter-venor had appeared in, the suit to assert his privilege as a supply creditor after the sequestered property had been bonded, it was too late; that his recourse was against the property.

The same rule was recognized and applied in McRae vs. Austin, 9 An. 360; Williams vs. Burnham, 28 An. 761; Burbank vs. Taylor, 23 An. 751, and in Lemann vs. Truxillo, 32 An. 65.

In Harrison vs. Jenks, 23 An. 707, it was held that by the defendant bonding property which had been sequestered, did not destroy the lien of a previous intervenor on the property; but that same was secured thereby.

In Carroll vs. Hamilton, 30 An. 523, it was held that the value of the property sequestered, and not the amount of the judgment, regulates the condition of the forthcoming bond.

In Welsh vs. Barrow, 9 R. 535, it was held where a forthcoming bond for the release of sequestered property was taken under a particular law, it must be construed by that law.

In Mulligan vs. Vallee, 31 An. 375, it was held that the insertion in a forthcoming bond, under a writ of sequestration, of the condition that the surety should satisfy such judgment as may be rendered in the pending case, is illegal and not authorized by law.

(6) Second, with respect to the attachment.

The condition of the forthcoming bond for the release of property attached is ¡that the defendan “ will satisfy such judgment, to the valueof the property attached, as may be rendered against him 'in the suit pending.” O. P. 259.

In Dorr vs. Kershaw, 18 La. 57, it was held that “ the attachment having been dissolved by the giving of a bond conditioned as the law requires, the cotton was no longer under the control of the court, and the iutervenor’s claim should have been directed against the person in possession of the property; the condition of the bond entered into by the defendant was not to hold the cotton subject to the order of the court, but to satisfy such judgment as might be rendered against him in the suit pending.

“ This personal obligation could not be discharged by the surrender of the property attached, nor could plaintiff, upon obtaining judgment, exercise any recourse upon it.

The bond is a substitute for the property, but only with regard to the attaching creditor, and for the sole purpose of satisfying any judgment he might obtain * * * As to the bond no one can avail himself of it except the plaintiff in the writ; if he fails to obtain a judgment the bond is discharged

Ledda vs. Maumus, 17 An. 314, is to the same effect.

See also to the same effect the following cases, viz.: Emanuel vs. Mann, 14 An. 53; Beal vs. Alexander, 7 R. 349; McRae vs. Austin, 9 An. 360; Benton vs. Roberts, 2 An. 243; Wright vs. White, 14 An. 583; White vs. Hawkins, 16 An. 25.

But in Cass vs. Rouark, 25 An. 353, it was held that the bonding of property attached after an intervention had been file.d did not destroy a prior intervention alleging a lessor’s lien on the property, nor divest his right.

In White vs. Hawkins, supra, it was held that when a third person, in whose possession property of the defendant is attached, intervenes in the suit and bonds the property, his liability on the bond will be irrevocably fixed by a final judgment against him in the same manner as the defendant would have been bound if the property had been released on a bond executed by him.

In Baker vs. Morrison, 4 An. 373, the difference between the conditions of a forthcoming bond nnder an attachment and one under-sequestration was examined and defined, and again in Jacobson vs. Sevill, 6 An. 277, and in Lemann vs. Truxillo, 32 An. 65, and in. State ex rel. Jeffrey vs. Judge, 39 An. 1108.

Prior to 1876 the intervenor’s right to give a forthcoming bond for the release of an attachment was only recognized as equitable merely. Letchford vs. Jacobs, 17 An. 79; White vs. Hawkins, 16 An. 25; Beal vs. Alexander, 7 R. 349; Dawson vs. Williamson, 22 An. 535; Slawson vs. Ker, 29 An. 295.

But this right was denied all intervenors in sequestrations. Clapp vs. Phelps, 19 An. 461.

This is the condition the jurisprudence was in when Act 51 of 1876-was passed, the provisions of which are that an intervenor may obtain the release of property sequestered or attached “on executing a forthcoming bond in the same manner and amount, within the same delay and with the same effect as the defendant in the suit is-now allowed.”

In Hawkins vs. Beer, 37 An. 53, it was held that “ the sole change-in the intervenor’s status made by the act of 1876 is to enable him. to bond sequestered property,” consequently the decisions quoted, have equal application to an intervenor in an attachment or sequestration respectively.

In either ease — of an attachment or sequestration — the lien of the creditor is transferred by a judicial sale from the property to its-proceeds, and they take the place-of the property in custodia legis. Spencer Field & Co. vs. Broderick, 12 An. 552; Tiernan vs. Murrah, 1 An. 443.

In State ex rel. Gerson vs. Judge, 37 An. 261, it was held that' “when the property attached has been sold in limine, under C. P. 261, the proceeds take the place of the property, and still continue-to be the property attached, and subject to the right of the defendant to bond in every stage of the suit, under C. P. 259.”

In my view the foregoing decisions confirm my opinion as above expressed, in the following particulars, viz.:

1. That the defendant is responsible on his forthcoming bond, under the sequestration, for the restitution of the cotton or its proceeds to the extent he is commanded so to do by the final judgment' in the case, and no more.

2. That the Intervenor bound herself in her forthcoming bond, under the attachment, to pay such judgment as might be rendered .against the defendant, in the suit pending on the attachment; but that as the plaintiff failed to obtain judgment against the defendant ■on the attachment, the bond is discharged.

3. That, in the absence of any reservation in the judgment in respect to the intervenor, she is not liable for the restitution of the property or its proceeds to a greater extent than the amount for which judgment is given against the defendant, T. J. Williams.

4. That having received the cotton from her husband in part payment of her paraphernal claims, she can not be compelled to make restitution on account of plaintiff’s privilege, because the proceeds of the cotton passed through her hands, and were consumed prior to ■the institution of this suit, and are no longer in esse.

5. That this court having found and decided that it was illegal for the judge a quo to maintain and preserve in statu quo the plaintiff’s privilege with regard to the unmatured part of his claim at date of •original suit, and reversed his judgment in that respect, is conclusive evidence that the judgment only recognized and enforced the ■plaintiff’s privilege-to the extent of the matured portion thereof, .and same is a bar to a subsequent suit against the intervenor for a greater amount, she having paid and discharged the amount for which there was judgment.

IV.

Mrs. Williams’position with regard to her pleas of res adjudieata and no cause of action is, that in her intervention in the previous suit, she set up her claim to the one hundred and thirty-six bales of ■cotton under the dation en paiement, and denied plaintiff’s right to seize same' under his sequestration or attachment, and that plaintiff joined issue with her on that question by an answer which affirmed his privilege on the cotton, and his right to enforce the same thereon.

That notwithstanding the judgment of the court maintained her Title, and at the same time recognized plaintiff’s seizure of her property as subject to his privilege, yet the decree was expressly limited ■to the matured part of the indebtedness of T. J. Williams, which she has paid and fully satisfied, leaving nothing whatever due thereon.

That that decree forms res adjudieata as between plaintiff and her, and bars and estops him from urging his privilege against her in this suit, because the thing demanded is the same, the demand is founded on the same cause of action, the demand is between the same parties, and formed by tb6m against each other in the same quality.

The plea exactly fulfils all the requisites of the Code. R. C. C. 2285, 2286.

The judgment, as between plaintiff and defendant in the original suit, was one of non-suit merely with respect to the portion of the latter’s indebtedness which was not then .due; but, with respect to the intervener’s demand, it was a finality, because there was nothing in the judgment therein which was reserved as to her which she has not since fully paid, leaving her subject to no other liability.

In the former suit her cotton was subjected to seizure in the enforcement of plaintiff’s supply lien; but in that litigation she was adjudged to be the owner of same and necessarily of its proceeds.

In that suit she appeared as intervenor, but in this she is made defendant; but the demand made in each case, as to her, is formed by and between them and against' each other, “ in the same quality” (R. C. C. 2286), she being called upon to produce the same proceeds which figured in the former case in order to subject them to the same privilege.

The authority of the thing adjudged is a presumption established by law, the essentials of which are (1) that “ the thing demanded must be the same;” (2) “the demand must be founded on the same cause of action” (3) the demand “ must be between the same parties ” (4) they must be formed by the parties “against each other in the same quality.” R. C. C. 2286 (2265).

While the foregoing provisions of the Code are quite plain and not difficult of appreciation, it will not be amiss to make a cursory examination of authorities bearing on the subject.

Our jurisprudence'has been consistent and uniform to the effect' that “it matters not under what form, whether by petition, exception, rule, or intervention, the question be presented, whenever the same question recurs between the same parties^ even under a different form of procedure, the exception of res adjudícala estops. Plicque vs. Perret, 19 La. 318; Trescott vs. Lewis, 12 An. 197; City Bank vs. Walden, 1 An. 47; Consolidated Association vs. Mason, 23 An. 619; Sewell vs. Scott, 35 An. 553.

In Ledoux, Administrator, vs. Burton, 30 An. 576, it was held that “ when the issues in the second "suit are the same as those in a previous suit between the same parties, that additional parties appear in the second suit will not prevent the judgment in the former suit having the effect of res adjudicata as between the parties who appeared in both suits, in the same capacities.”

In that case the court held that a judgment rendered on a petition for an injunction, filed by a third opponent who claimed the property seized, will be a perpetual bar agáinst the plaintiff in execution.

In Shelton vs. Brown, 22 An. 162, it was decided that a party having set forth his demand by intervention, and his rights having been passed upon, is estopped by the plea of res adjudicata from prosecuting a different action on the same demand against the same party.

In Succession of Burnford, 1 An. 92, the court said: “The only test as to the effect of a decree is its finality, as to the matters embraced in it, and its having the requisites of Art. 2265 of the Code,” now 2286.

In Trescott vs. Lewis, supra, the court held that “ the form of procedure is immaterial; if proper parties join issue upon questions either of law or fact before a competent court they must abide by the decision.”

In Heroman vs. Louisiana Institute, etc., 34 An. 805, it was held that matters once determined by a court of competent jurisdiction, if the judgment has become final, can never be called into question by the parties or their privies.

The opinion of text-writers and courts of other juridisctions are in perfect accord with the text of our Oode and the decisions of this court on the subject.

In a standard work on Res Adjudicata we find the following pertinent extracts, viz.:

“An interpleader is concluded by the result as well as the original parties. * * * So where in an attachment a third party inter-pleaded and claimed the attached property as his own, and the judgment was that defendant was the owner, and afterward the inter-pleading claimant brought a direct action against the constable in possession of the goods under the attachment writ, the judgment as to the right of property on the issue raised by the interpleader was held to bar the second action.” Wells’ Res Adjudicata, Sec. 24; Richardson vs. Watson, 23 Mo. 34.

“The relative positions of the parties to the record in the two actions is not regarded as material. They may be respectively plaintiff and defendant, and defendant and plaintiff without altering the result of the first litigation between them, because it is nevertheless an issue between the parties.” Id., Sec. 21.

“ The rule is that a judgment is conclusive between parties and privies in any subsequent suit.” Id., Sec. 12.

That author says that it has been held “ that not only is the judgment of a court conclusive on all questions actually and formally litigated, but likewise as to all questions within the issue, whether formally litigated or not, that is to say, all matters which are impliedly and necessarily within the issue joined, and the determination of which is necessarily included in the judgment.” Id., Sec. 217; Ballinger vs. Cragin, 31 Barb. 534.

That author says “ the principle is the same, whether the matter which might have been adjudicated in the first suit would have been a ground of the action, or a defence to the plaintiff’s case.” Id., Sec. 253.

The Illinois court, quoting from Bigelow on Estoppel, say:

“It follows also, from the authorities considered, that a valid judgment for the plaintiff sweeps away every defence that should have been raised against the action, and this, too, for the purposes of every subsequent suit, whether founded on the same or a different cause.” Keller vs. Douline, 70 Ill. 385.

And Mr. Wells says:

“ So that if the precise issue of the former suit, necessary to the determination of the controversy therein, be again brought between the parties in the latter action, even though collaterally, yet relevantly and materially, the former decree must conclude the matter from further dispute.” Res Adjudicata, Sec. 304.

Such is also the jurisprudénce of the Supreme Court of the United States, and the governing principle is nowhere better stated than in Aurora City vs. West, 7 Wallace, 82, in which the court employ this •explicit language, viz.:

“ Courts of justice, in stating the rule, do not always employ the same language; but where every objection urged in the second suit was open to the party within the legitimate scope of the pleadings in the first suit, and might have been presented in that trial, the matter must be considered as having passed in rem adjudieatam, and the former judgment, in such a case, is conclusive between the parties.”

Mr. Wells further states the rule to be that contestants are not allowed to split up a cause of action, even where they have an election of different remedies, into different actions, or to supplement an incomplete remedy they may have selected at the first, by availing themselves, subsequently, of another. Res Adjudicata, Sec. 222; Sims vs. Zane, 24 Penn. St. 243.

On this resumé of authority Mrs. Williams’ plea of res adjudicada, should have been sustained by the judge a quo.

V.

The disorder of the husband’s affairs authorizes the wife to petition the court for a separation of property, and a money judgment against him for her paraphernal claims (R. 0. 0. 2425) ; and the law allows the husband to transfer to his wife property in the replacement of her dotal and other effects he has alienated. R. 0. 0. 2446.

The paraphernal funds of the wife passing into the hands of her husband, and having been used by him during the marriage, same constitutes a charge against the community.

In Downs vs. Morrison, 13 An. 379, it was decided that money belonging to the wife, received by the husband during the marriage, constitutes a charge against the community.

It was so decided in the following cases, viz.: Harrell vs. Harrell, 12 An. 550; Mercier vs. Canonge, 12 R. 385; Succession of Thomas, 12 R. 215; Jeaudron vs. Boudraux, 1 R. 383; Succession of Foreman, 38 An. 700.

The Code declares only that “ the debts of both husband and wife, anterior to the marriage, must be acquitted out of their personal and individual effects” (R. 0. 0. 2403),. not those contracted during the marriage.

There is, therefore, no doubt of the husband’s right to transfer to his wife community property in replacement of her paraphernal money which he received and used during the marriage — she not being personally responsible for the payment of community debts. R. C. C. 2410, 2411; Stuffier vs. Puckett, 30 An. 813.

'Consequently Mrs. Williams was legally entitled to receive from her husband community property in partial payment of her para-phernal claims, and, on that account, she incurred no liability to tlie plaintiff as a community creditor.

And it was decided in Levy vs. Morgan, 33 An. 532, that “ there is no difference to be made whether the transfer takes place after the judgment of separation or without such judgment.” Thompson vs. Freeman, 34 An. 992; Leman, Abraham & Co. vs. Levy, 30 An. 745; Judice vs. Neda, 8 An. 485; Succession of Webre, 35 An. 206.

But if, under exactly similar circumstances, the husband gives to a preference creditor, other than his wife, property in settlement of his claim, to the neglect of another, his remaining property becomes liable to attachment.

This is the situation in which T. J. Williams finds himself; and his privileged creditors have seized the property which he transferred to his wife, in partial payment of her paraphernal claims by dation en paiement.

Not only so, but, notwithstanding she intervened in that suit, and litigated the creditor’s right to a final judgment in this court, the same creditor is still pursuing her, demanding a judgment against her, because the property, no longer in esse, passed through her hands.

For this proceeding there is neither precedent nor authority; but dnce establish the proposition as tenable, and every bank, broker or factor, through whose hands any agricultural products may have passed in the course of trade, will at once become amenable to suit by the supply creditor.

This surely can not be the law.