text:
    No. 11,842.
    H. B. Claflin & Co. vs. Sam Benjamin et als.
    In a suit by a creditor to annul an attacliment against his debtor by a prior at. taching creditor, he is restricted to the proof of fraud and collusion between, the attaching creditor and the debtor.
    APPEAL from the First Judicial District Oourt for the Parish of Caddo. Taylor, J.

      Wise & Herndon for First National Bank, Defendant, Appellee.

      A. H. Leonard and F. G. Thatcher for Plaintiffs and Appellants, for a Rehearing.
    The opinion of your Honors holds that a sale of property attached made pendente lite may be made for two-thirds of its appraised value, under provisions of Art. 680, O. P. We respectfully submit this is error.
    Property which has been attached, and which is perishable in its nature, may be sold under Art. 261, O. P., but such sale is not an execution sale and is not governed by Art. 680 O. P., which relates to sales made under execntion. This court so held in 26 An. 271.

      Argued and submitted June 10, 1895.
    Opinion handed down June 21, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs obtained a judgment against the defendant for four thousand and nine hundred dollars. In the suits, writs of attachment issued and certain property was attached. Claiming that the attachment gives them a lien and privilege on the property seized, under the writs, this suit is brought to annul a prior attachment upon the property by the First National Bank of Shreveport.

There was judgment for the defendants and the plaintiffs appealed.

The grounds annulling the judgment sustaining the attachment are:

1. Because the bank being a corporation can not and did not take the oath which is a preliminary requisite to the issuance of a writ of attachment, and the bank being present within the jurisdiction of the court, srch oath could not be taken by any agent or attorney at the bank.

2. That the affidavit for attachment was made by W. B. Jacobs and does not show nor does it appear by record that he was authorized to make same. That in fact and in law said W. B. Jacobs was not authorized to make said affidavit for said bank.

3. Because the institution of the said suit of said bank against said Benjamin was not authorized by any resolution properly adopted by the directors of the bank, nor was the execution of any attachment bond so authorized.

4. Because the issuance of a writ of attachment against Benjamin was not necessary to protect any rights of the bank.

• 5. Because, as hereinbefore set forth, the suing out of such attachment in the name of said bank was fraudulent and collusive.

The plaintiffs can not urge the first, second and third grounds, as they are defences personal to the defendant in attachment. This is elementary. Commission Company vs. Bond & Williams, 44 An. 841.

The plaintiffs are restricted to the fifth ground, that the attachment was fraudulent and collusive. Rawlins vs. Sheriff, 45 An. 69; John Henry Shoe Company vs. Gilkerson-Sloss Commission Company, Ante 860.

The fourth ground is a matter of proof as a circumstance to show collusion.

The “fraudulent collusion ” alleged is that the defendant, Benjamin, was engaged in business with a stock of goods placed on the assessment rolls for twenty-five hundred dollars; that the defendant bank gave him letters of introduction asserting that his credit was good, and encouraged and aided him in largly increasing his stock of merchandise; that the bank and Benjamin had agreed before the purchases were made, that on a certain day or about a certain time the bank would, with his consent, attach his property on an alleged indebtedness and sell the property in block for the benefit of Benjamin and certain other of his creditors, to whom he intended to give a preference. The charges are so serious that they have necessarily compelled an examination of the record with the most searching investigation.

The defendants used as witnesses by the plaintiffs deny the allegations, and we find nothing in the record to sustain the accusation of collusion.

It is true defendant Benjamin made no defence to the attachment, but the bank’s debt existed, and the facts upon which the attachment were based also existed. Plaintiffs alleged the same reasons for the attachment sued out by them. At any rate, without proof of an agreement to attach on fictitious grounds, consented by the attached creditor, the inquiry into the facts upon which the attachment issued is closed by the decree in the attachment suit. Rawlins vs. Sheriff, 45 An. 69.

The letters of recommendation, or of introduction, were justified by the reputation the defendant Benjamin enjoyed in the city of Shreveport when they were issued. Benjamin purchased more goods than he ought to have carried, but it is not shown that the defendant bank had anything to do with his purchases. The relation between him and his attorney Kahn, his abruptly leaving the gaming table when he heard that plaintiffs’ agent was in Shreveport, and taking measures to protect himself, and his course in invoking attachments against him to forestall that of the plaintiffs; his declaration as to protecting home creditors, and fixing himself, are matters personal to his own interest and affect them alone, but can not affect the bank without proof connecting it with them. The fact is, the bank had an honest debt against Benjamin, and the attachment was an honest effort to secure it.

There was a scramble among creditors to be the first to secure a. lien by the attachment. The plaintiffs have shown that there were rumors several days before the attachments issued, that defendants’' property would be seized. As usual, there was a movement among-creditors and a rivalry among attorneys to secure their claims. In such a race it is not unusual for the nearest attorney to be unemployed, nor is it usual for the chance meeting of creditors and attorneys, who had been before the attorney for the seized debtor, at-an early hour at the clerk’s office.

The sale by Jacobs, the purchases at the sheriff’s sale, of the bulk of the property and its final disposition to Mrs. Benjamin, the mother-of the defendant, is complained of. But the record shows that the agent of the plaintiffs, whose visit, it appears, to Shreveport was for-the purpose of attaching Benjamin, made a proposition to him for Claflin & Co. to do practically the same thing; that is, purchase the property for Benjamin, place him in possession of it, provided the-attaching creditors could be satisfied. It appears that no consent was-given to this arrangement. They bid at the sale of the property-attached under the writs of attachment. They intervened in all the-attachment suits and failed to prosecute their interventions. In the-interventions, the allegations made in this suit are the same.

Mrs. Benjamin realized nothing under her attachment, and in this particular the plaintiff was not injured.

The property was purchased by Jacobs and adjudicated to him, as appears by the sheriff’s return. He could do with it as he pleased, give it or sell it to Mrs. Benjamin; consequently it is immaterial, so-far as plaintiffs are concerned, in what manner she paid the price.

Complaint is made that the property was sold for two-thirds of its-appraised value. This was in accordance with law. O. P. 680. But we are of the opinion that the appearance of plaintiffs by their agent at the sale, and bidding on the attached property, cured any defects in the regularity of the sale, if there were any.

Considering all the facts and circumstances presented in this case, we think the plaintiffs have failed to prove the allegations in their-petition.

Judgment affirmed.

Nicholls, C:*J., absent;


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,828.
    Succession of M. F. Bonzano.
    The attorney of the heir seeking to he appointed administrator is not to be paid by the succession, when the deceased has left a will appointing executors to whom, notwithstanding the opposition of the heir, letters issue. 10 Rob. 541; 27 An. 412; 36 An. 304.
    APPEAL from the Twenty-second Judicial District Court for tha Parish of St. Bernard. Livaudais, J.

      II. Heidenhain and Dinkelspiel & Hart for Executors and Heirs, Appellees.

      Sambola <& Duoros for Opponents, Appellants.
    Submitted on briefs May 27, 1895.
    Opinion handed down June 24, 1895.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the judgment dismissing the opposition of the appellants, claiming to be placed on the tableau of distribution in this succession for one thousand dollars for professional services.

The deceased, M. F. Bonzano, left a will appointing executors who presented it for probate to the Civil District Oourt, instead of to the District Oourt of the domicile of the deceased, the parish of St. Bernard. The will stated that domicile. In a day or two after the probate by the Civil District Oourt, the executors, realizing their mistake, had the probate here revoked and asked for the probate in St. Bernard. But they encountered opposition from one of the legal heirs, claiming, in a petition filed previous to the application of the execu - tors, letters of administration. This application for letters by the heir was filed after the probate of the will, by the wrong court, it is true, but notice to all that the deceased had left a will and appointed executors. The St. Bernard court, as might be expected, refused the application .of the heir, probated the will, and issued letters to the executors. The attorney for the heir now. claims they should be paid by the succession for their services in conducting the proceedings to have an administrator appointed.

It is claimed by the opponents their proceedings were beneficial to the succession. We can hot appreciate the basis for the claim.

The proceedings were in opposition to the will and obstructed its probate. The statement is in the record the opponents were retained with a view to contest the will. When an attorney is employed for one claiming the administration of a succession, and who fails to maintain his claim, the attorney has no claim on the succession for his fee. Succession of Gourjon, 10 Rob. 541; Wailes and Mathews vs. Succession of Brown, 27 An. 411; Succession of Florance, 36 An. 304. In some cases courts have allowed fees for administrations displaced afterward by the executor or heir, or universal legatee. Thus, in one case, the appointment of the administrator seems to have been necessary, and attorney’s fees and commission were allowed for an administration until the legatee appeared and was put in possession; in another, such fees and commissions were allowed one who was appointed to act as executor in case of the absence of another. Succession of McLaughlin, 14 An. 398; Succession of Florance, 36 An. 304. In this case there was no necessity for any appointment as administrator; none was appointed, and there was no occasion for the proceedings of the heir, unless for his own interest. The claim of the attorney is against the heir, not the succession.

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

Nicholls, O. J., absent.


text:
    No. 11,818.
    Succession of Dr. Eugene Rabasse.
    On Intervention and Opposition of the Delegate for the Consul of France.
    'The provision in. our treaty with France, adopting that in our treaty with Belgium, conferring on the delegate appointed by the French consul authority to represent, until they send their powers, French citizens, heirs of a succession opened here, is a provision relating to a subject within the treaty-making power, and must prevail if in conflict with a State law. Constitution United States, Art. 6, par. 2; 1 Kent’s Com. 165; Ware vs. Hilton, 3 Dallas, 109; Provost vs. Grenaux, 19 How. 1; 100 U. S. 483; 133 U.S. 264,266; Treaty with France, 1853,10 Stat.999, Sec. 12; Treaty with Belgium of 1880, Art. XV.

      The effect of such provision is to remove any necessity for the appointment by our courts of an attorney to represent such French heirs, and to that extent all that the case requires to be determined, the provision is maintained. See Civil Code, Art. 1210; 13 La. 73; 15 La. 527.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      J. Numa Augustin for Delegate, etc., Intervenor and Third Opponent, Appellant.

      Theodule Buisson, Chrétien & Suthon, Attorneys for absent heirs, Appellees.
    Argued and submitted May 24, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 29, 1895.
    Adolphe Auguste Rabasse, commonly known as Dr. Eugene Rabasse, a native of France, died February 26, 1895, in the city of New Orleans. At the time of his death the deceased was a citizen of the Republic of France; he died unmarried and left no legitimate ascendants nor descendants, leaving only collateral relatives, consisting (1) of his niece, residing at Chaumont (Haute Marne), France; and (2) Mrs. Blanche Louisa Langlois, wife of Louis Jean Joseph Moisson, residing at Brienne le Chateau ([Aube), and Mrs. Olarie Louise Armelle Langlois, wife of Charles Martial Pineaut, residing at Lesmonts (Aube), France, his grandnieces.
    The deceased left a will, wherein, with the exception of a legacy made to one Eugene Rabasse, he wills the residue of his estate in equal shares to his two sisters, Mesdames Saulnier and Collot. Both of these having departed this life, their children and grandchildren inherit by representation. Mrs. Saulnier died without issue.
    The succession of Dr. Eugene Rabasse was opened in the Civil District Court for the parish of Orleans on the 27th day of February, 1895, by Armand Bossu, mandatory of -Mrs. Hypolite Bossu, one of the heirs herein, claiming the administratorship. He was subsequently appointed dative executor.
    Mesdames Moisson and Pineaut, born Langlois, French citizens residing in France, were not represented by mandatories or representatives of their own selection.
    Under the circumstances, intervenor, as delegate of the consul of the French Republic, filed a petition of intervention and opposition, claiming as a matter of right to represent the said absent heirs, Mesdames Moisson and Pincaut.
    The judge a quo dismissed this intervention and opposition, from which judgment this appeal was taken.
   The opinion of the court was delivered by

Miller, J.

The deceased, a resident of New Orleans,'left heirs residing in France. Our treaty with that country provides in case of death of any citizen of France in the United States, without any testamentary executor by him appointed, the consul shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent or minor heirs. The stipulation is reciprocal, applying to estates of Americans dying in France. The French consul here appointed a delegate to represent the French heirs, and he applied for recognition to the Civil District Court, in which the succession was being administered. That court denied the application and appointed an attorney for the absent heirs. From the judgment dismissing the intervention of the appellant, claiming recognition as delegate, he prosecutes this appeal.

There is a motion to dismiss the appeal on the ground there is no pecuniary interest involved. There is involved a question of the construction and the execution of our treaty with France in respect to the interest of French heirs in a succession of over one hundred thousand dollars. The motion is denied.

If the treaty is susceptible of the construction of the appellant the. result would be to avoid the appointment of the attorney for the absent heirs, and require the recognition of the appellant as the delegate of the French consul. In our view the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs. That was the manifest purpose, and the language of the treaty plainly expresses that intention. There is no power to appoint an attorney for absent heirs when the heirs are present or •represented. Civil Code, Art. 1210; Robouam’s Heirs vs. Robouam’s Executor, 12 La. 73; Addison vs. New Orleans Savings Bank, 15 La. 527.

It is idle to call in question the competency of the treaty-making power, nor do we think any question can be raised that the subject of this treaty under discussion here is properly within the scope of the power. That subject is the rights of French subjects to be represented here by the consul of their country. On that subject the treaty provision is plain. The treaty by the organic law is the supreme law of the land, binding all courts, State and Federal. Constitution United States, Art. 6, par. 2; 1 Kent’s Commentaries, 165; Ware vs. Hylton, 3 Dallas, 197; 19 How. 1; 100 U. S. 483, 488; 133 U. S. 264, 266; Treaty with France, 1853, 10 Stats. 999, Sec. 12; Treaty with Belgium, 1880, Art. XV.

The treaty discloses no purpose to require our courts to appoint as the attorney for absent heirs the delegate of the French consul. Its purpose is accomplished by placing the delegate before the court as representing the absent heirs, and precluding the appointment of any attorney to represent them.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, dismissing the intervention of the delegate of the French consul, be avoided and reversed, and it is now ordered, adjudged and decreed that said delegate be recognized and as such delegate, authorized to represent the absent heirs in this succession, and that.the succession pay the costs.

On Application for Rehearing.

Our decision in this case affirms that the French heirs of this succession are to be deemed represented by the delegate of the French consul, with the same effect as if the delegate held their power. This view of the treaty, to which our decision is confined, displaces the power of the lower court (exerted in ordinary cases) to appoint any attorney to represent the French heirs of this succession.

The rehearing is refused.


author: Miller, J. Watkins, J.

text:
    No. 11,809.
    C. B. Darrall vs. Southern Pacific Company.
    The railroad company placing piles in navigable waters to protect the bridge laid under legislative authority must use all necessary protections for the security of commerce, and if, because precautions are not used, a vessel is loat or injured by contact with the pile structures, the company will he responsible. Wood on Nuisances, 5472; 126 U. S. 260; 6McLean, 70.
    The limited liability legislation under certain modifications exempts carriers by water from responsibility from losses due to perils of navigation or any want of care in the management of vessels and incurred without the privity or negligence of the carrier, but extends no protection against a loss caused by the contact of the vessel.with the pile structure placed by the carrier in navigable waters without due precautions to guard against accidents. Revised Statutes of the United States, Sec. 4282 et seq.: 24 Statutes, 81; 27 Statutes, 445.
    Nor does the Code or any stipulation in the bill of lading furnish the carrier any ■protection against such losses. Civil Code, Arts. 2751,2794; Wheeler on Carriers, Sec. 31 et seq.; 17 Wallace, 361.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Bouse & Grant for Plaintiff, Appéllant.

      Leovy & Blair for Defendant, Appellee.
    Argued and submitted May 22, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff seeks to make defendant liable for the value of his sugar onboard of a barge sunk with its cargo, by coming in contact with a cluster of piles or fenders placed by defendants in Berwick’s Bay to protect the railroad bridge of defendants, constructed across the bay near the place of the loss.

The sugar was intended for transportation on the railroad, and the barge was used by the defendants to convey the sugar from plaintiff’s plantation to the bay, to be placed on defendant’s cars. The petition charges the cluster of piles to be an unlawful obstruction to navigation, constructed so as to be dangerous to vessels, the cause of the loss, and hence that defendants are responsible. The defence is that this fender or cluster was necessary to protect the railroad bridge from the strong current and drift wood which, but for the fender, would form rafts, sweep with .violence against the bridge; that the bridge was laid across the bay under the authority of a legislative act, and that the’ cluster or fender as a protection to the bridge was within the scope of this legislative authority. • The answer also avers the method of barge transportation of the sugar to the railroad was proper, charges the loss was due to a peril of navigation, not to the fault or negligence of defendants’ employees. The answer invokes the benefit of the stipulation in the bill of lading, given for the sugar, exempting defendants from all responsibility, and the defendants, it is claimed, are besides protected from liability, the legislati n of Congress limiting responsibility of owners of ships, barges and vessels engaged in navigation. From a judgment against him plaintiff prosecutes this appeal.

Under the legislative act, the defendants laid their bridge from the eastern to the western side of Berwick’s Bay (Act No. 87 of 1877), locating the draw nearer the western side to avoid the-deeper water and stronger current of the mid-channel, the draw occupying a space of over one hundred feet. There is piling faced with boards placed at some distance from the bridge piers, and extending about one hundred and fifty feet up on the western side of the bay; on the other or eastern side of the bay, on a line with the bridge piers or current line, is a cluster of eight piles, extending up, with cribbing between them, to prevent obstructions; the piles are braced with stringers tied with heavy iron plates, and the ends of the braces or stringers project beyond the piles, in order, it is testified, to take the bolts. These piles on the eastern side, we gather from the testimony, are not boarded so as to make a beard fender, as on the western side. This cluster or fender of eight piles begins twenty-two feet from the bridge and extends twenty-one feet up the bay. The board fender on the western side and the pile cluster on the east side thus form the entrance through which vessels pass to go through the draw. It is in evidence the board fender is not parallel to the current but extends at an angle from the bank. The current runs obliquely across the entrance directly toward the piling on the eastern side. This piling, it is in evidence, diminishes the room the boat would otherwise have to “swing” into the draw, and subjects the vessel to the necessity of turning and going through the draw obliquely instead of a straight direction. In adapting the boat to this oblique course, requiring backing sometimes, the current is apt to carry the boat on the pile cluster on the east side and on the projecting ends of the stringer in the position to strike and penetrate the hull. It was one of these stringers that pierced the barge about twenty-five feet from the bow and caused the loss'of the barge and plaintifl’s sugar.

We do not find it necessary to discuss the question whether the act of 1877 authorizes the piling in the bay or the question of the necessity of thus protecting the bridge. In any view of the authority conferred, it was certainly imperative on defendants in piling the bay, to use all precautions for the security of vessels. Wood on Nuisances, Secs. 472, 473. We think in view of the course vessels were obliged to adopt in approaching the draw, and the current to which they were exposed setting toward the east piling, it was the dictate of prudence to cover the ends of the stringers of this east side piling or adopt some other method of protecting vessels from that danger that proved fatal to the barge. On the one side there was a board protection, against which if a vessel struck it glanced, and there was no damage; on the other, where the danger was greater, there were the naked protruding heavy stringers to receive and destroy any vessel drifted on them by wind or current.

We have given due weight to the testimony why the boarding on the one side was not used as a protection on the other, but it is our conclusion that some precaution should have been employed against a peril so obvious in its character. On this question we are, of course, influenced by the testimony of a number of pilots and others familiar with the subject. One describes the process by which vessels were constrained to go through the draw; that is, the boat had to be laid diagonally across the current to go through; when the current was strong had to “ back up ” and flank to go through. “If the boat runs through without backing, have to go diagonally to open the bridge.” Another witness, a master navigating the bay for eight years and thoroughly familiar with the locality aud of the method of going through the draw, compulsory in all by the current, the position and construction of the piling, testifies: “The piling on the upper side is forty-five feet above the draw; it is a fender to protect the bridge; is dangerous; a boat always hits it; it is braced with stringers projecting eight or ten inches beyond it, and a boat going down strikes the stringers instead of the piling, which will penetrate the hull unless she has guards; all the trouble is in these braces; if they were protected the vessel would strike and glance off; the cluster makes navigation dangerous.” Another witness, a pilot for eleven years in the bay, testified: “There is a boarded fender, one hundred and fifty feet long, on the west side, not parallel with trend of current, extends at an angle from instead of curving to the bank, causes current and obstructs navigation to extent of one-third of opening; on the east side is a clump of piling, eight strapped together, with iron at top, with each being bolted at water’s edge, is placed directly in trend of current; is an obstruction because west bank fender extends into instead of opening out to current; the cribbing is treacherous, sometimes below water line; in clearing end of west bank fender a boat is brought directly in trend of current, carrying it directly on piling; danger also results from large bolts, owing to wear of cribbing left projecting.” Another testified, a pilot of fourteen years’ experience: “The piling is well strapped with iron and cross timbers, which makes it dangerous for any barge or other boat to strike it. The current runs obliquely across the entrance to the draw. The piling is especially an obstruction to towing barges. ■ It is situated about forty feet from the bridge, and cuts off the room a boat would otherwise have to swing into the opening. The current runs directly toward the piling, the timbers of which stick out from it at the water’s edge, and would penetrate any boat striking them. The passage should never be attempted at night.” William H. Cisna says he has been a master and pilot for nine years in these waters. “The trend of the current is toward the east. If a boat were to strike the piling it would prove fatal to her, because of the bolts and other projections sticking out, below the water. If it were not for the piling a boat could drive straight through the draw with a tow, but as it is now a boat has to turn and go through obliquely. If there were no projections a boat might strike the piling without injury, but as it is now the least blow against the piling is apt to be fatal.” B. N. Hamilton a master and pilot of seven years’ experience, says the piling is undoubtedly an obstruction. “This is due to the position of the west bank fender, with reference to the trend of the current, which strikes it at an angle, which compels a boat to go into the draw obliquely — that is, with her head- toward the west bank. Even in this position the boat flanks so that she has to be swung quickly to the port when in about the middle of the draw, to prevent her striking the piling on the east side. If a boat strikes the piling she is almost sure to go down, because of the rugged spikes or bolts sticking out. Everything that has ever bee.j sunk has been sunk on this piling.”

In answer to this testimony, it is urged that there have been in years only two or three boats lost on this piling. That illustrates, we think, good fortune, and the good care exerted by barge men and pilots. But it is none the less true that the danger depicted by the witnesses existed and proved effective to cause the loss in this case. We think if the. navigation of public waters is made dangerous by the omission of reasonable precautions on the part of those authorized to construct a bridge over such waters, the law places the responsibility for the resulting accidents to vessels on the bridge owners, unless they can refer the loss to some cause other than the perils they create. We find a case illustrating this liability in 6 McLean, 70.

The defendants have offered testimony to show that if the piles had not been in the way the barge would have struck the bridge. It might have been so, but we can not, on that assumption, relieve defendants from liability. The piles begin some distance from the bridge. That obstruction against which the barge struck can not be put out of view and another cause of loss, i. e., the bridge forty-three feet away, substituted, on the theory it would have intervened and proved equally fatal.

The defendants, as carriers of the sugar from plaintiff’s plantation to-the railroad, have invoked the protection of the limited liability legislation of Congress. Revised Statutes of the United States, Sec. 4282 et seq.; Acts of 1886,24 Statutes at Large, p.81; Acts of 1898,27 Statutes at Large, p. 445. If it be conceded barges are within the scope of these acts, it is difficult to make their application to this case. The loss is not charged to any neglect or want of care of those on the barge or the steamer. That issue is not in the case, but eliminated by pleadings and proof. The master of the steamer testifying, attributes the loss to wind, or the current bearing the barge on the pile cluster. His testimony makes more conspicuous the danger to navigation arising from piles, with projecting stringers to pierce the sides of vessels, placed by the defendants in the current, which, by reason of the constructions of defendants, all vessels, to pass through the draw, had to encounter, bearing them directly on these dangerous and, in this instance, fatal stringers. Neither wind nor current could have produced any loss in this case, if this pile cluster, with its projecting points, had not been in position, against which no vessel, according to the testimony, was safe, if drifted on them. The loss then, can not be referred to the perils of navigation in the sense of the limited liability act, unless we are to understand the term as including the danger produced by defendant; nor can the loss be attributed to the fault or want of care, neither alleged nor proved, of those in charge of the barge or steamer. The limited liability legislation protects owners of vessels against losses from the irresistible violence of the winds and waves, or arising from any want of care, without the design, privity or neglect of the owner, or those in charge of vessels. In our view the legislation has no applicability in this case of loss due to the method in which the defendants construct d the pile cluster, placed by them in the bay and endangering its navigation.

Our Code does not impose on carriers the responsibility incident to the relation under the common law. Civil Code, Arts. 2751, 2794. It is insisted the Code is to be the test of the liability of the depth. But we do not understand that the Code has any tendency to relieve the carrier, if the loss is due to his act in placing obstructions in rivers or waters without the care requisite to guard against accidents. On this same line of defence we are referred to the stipulations in the bill of lading furnished b3’’ the carrier to plaintiff. That the carrier may, under certain restrictions, modify his liability is undoubted. It is hardly necessary to go into that discussion. The whole subject, with all of its qualifications, has undergone careful examination. See Wheeler on the Law of Carriers, p. 31; Railroad vs. Lockwood, 17 Wallace, 361. But it is presumed it will be accepted no stipulation will avail against a loss due to the negligence or imprudence of the carrier, or, in other words, he can not stipulate against a peril produced by himself. We have considered, too, the defence that the plaintiff was familiar with the mode of transportation and took all risks. We think it a more reasonable conclusion that he supposed defendants assumed the risks arising from the position on which they chose to place the pile cluster and its method of construction disclosed by the record. The assumption of such risks, if even known to plaintiff, would, it seems to us, require express proof.

We have given careful attention to this contention in all its phases. Some of these pressed by plaintiff have been passed over. Assuming that these pile structures are authorized under the legislative act as necessary to the bridge itself, notwithstanding the strict construction such acts usually receive (see 125 U. S. 26), it seems to us beyond dispute that the obligation of careful location and construction in respect to their structures was on the defendants. Guided by the testimony, we are led to the conclusion the mode of construction of the structures was dangerous and caused the loss. This phase we encounter at every turn of the case, and controls the decision.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff recover from defendant the amount claimed in the petition, two thousand eight hundred and sixty-eight dollars, with legal interest and costs.

Mr. Justice Breaux concurs in the decree.

On Application for Rehearing.

Watkins, J.

Plaintiff’s sugar was being transported from his plantation down the Teche to Morgan City for shipment by defendant’s train to New Orleans, and, by the wind and current, the barge in which same was being conveyed was driven against a cluster of piles which had been placed by the defendant in the Atchafalaya Bay as a protection to its bridge, and sunk, and the cargo of sugar lost.

The dispute is chiefly between pilots and other people, who have been engaged for many years in the navigation of the bay, and expert bridge builders and civil engineers — “ the bone of contention being the possibility or impossibility of this cluster of piles being dispensed with.

That it is a peril to navigation all agree.

The theory of our opinion favors that of the river people, and holds the defendant responsible on account of its want of due care in the location and construction of the protection for its bridge.

There is no doubt as to the fact that the defendant had legislative authority to- construct a railroad bridge across the Atchafalaya Bay at Morgan City, and to construct and maintain a fender-pier for its safety and protection, but no fair and reasonable construction can be placed upon this grant which would allow the defendant to obstruct or imperil navigation.

That the Atchafalaya Bay is for the greater part of the time exclusively tide-water is a fact within the judicial cognizance of this court, and to us it does not seem impossible to resist the accumulation of water which is occasioned by the annual swells of the Mississippi river and its tributaries and render ineffectual, boarded or covered, fender-piers which would protect vessels and guide them through the draw of the defendant’s bridge in safety. We can see no reason why the cluster of piles, as it now stands, could nob be so boarded as to protect vessels from danger, instead of permitting the stringers to protrude in such way as to cause such an accident as the plaintiff, very justly, complains of.

Rehearing refused..


text:
    No. 11,850.
    L. H. Goldman vs. Goldman & Masur.
    The fact that the debt secured by privilege is unpaid, and that the debtor is disposing of the property on which the privilege exists, though in the usual course of business, will authorize the writ of sequestration. Code of Practice, Art. 275, as amended; 8 An. 366; 86 An. 487; 40 An. 825.
    Under the ActNo. 146 of 1894, providing an additional judge for the Fifth Judicial District, it is competent for the additional judge to recuse himself, the.cause existing, and to appoint a judge ad hoc to try the case.
    Nor will the defendant be allowed to question the capacity of the judge ad hoc, on the alleged ground of the ability, to try the ease, of the judge of the district in whose aid the Legislature provided the additional judge; that act leaving it to the two judges “ to arrange the judicial work between themselves,” and besides the b 11 of exceptions showing the physical inability of the judge of the district to act. >
    The demand based on a penal clause for the payment on a condition of the amount specified can not be pleaded in compensation against a promissory note. Civil Code, Arts. 2117, 2525. 2527, 2209; 7 N. S. 517; 5 An. 303; 2 H. D 254, No. 5.
    The judgment may be corrected before signature, to correct a trivial error as to amount, such an amendment not being one of substance. Code of Practice, Art. 547.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Benton, J., ad hoc.

      F. G. Hudson for Plaintiff, Appellee.

      Gunby & Sholars for Defendants, Appellants.
    Argued and submitted June 12, 1895.
    Opinion handed down June 21, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues on one of the notes given for the price of a stock of goods, claiming the vendor’s privilege. The defence is that there was no ground for the sequestration issued; that the note sued on was compensated to the extent of two thousand dollars, claimed to be .for an alleged violation of plaintiff’s contract not to engage in business. Tender for the residue of the amount is alleged, and there is a reconventional demand for damages claimed to have been sustained by the wrongful seizure under the writ of sequéstration. The judgment of the lower court was in favor of the plaintiff, and defendants appeal.

The defendants complain that the judgment of the lower court was changed after its rendition, so that, as it is stated in the brief, there are two judgments. It seems that in entering the judgment there was included an item of thirteen dollars instead of four dollars. To correct this the court rendered and signed the judgment for the proper amount, the correction being made within the delay for making the judgment final. This charge the defendant insists the court had no right to make. The authorities brought to our notice affirm that the court can make no substantial change in a judgment except in the mode provided by law. In one of the cases the lower court changed the judgment after its rendition in a substantial respect; in another the judgment against plaintiff was changed to one in his favor. Miller vs. Chandler, 29 An. 91; Factors and Traders’ Insurance Company vs. The New Harbor Protection Company et als., 39 An. 583. Here the change was in favor of defendant and to correct an error of nine dollars. We think it was within the power to correct the error as one not of substance. Code of Practice, Art. 547.

The ease was called for trial before Judge Potts, the additional judge for the Fifth Judicial District provided by the Act No. 146 of 1894. He recused himself, having been of counsel, and assigned a judge ad hoc to try the case. The case was thereafter taken up, and defendant then excepted to the trial before the judge ad hoc on the ground that the regular judge of the district was in a condition to perform the judicial functions. It seems that Judge Potts heard and overruled the motion, challenging the competency of the judge ad hoc, who thereupon tried the case and rendered the judgment. The defendants insists that Judge Potts had no right to select the judge ad hoc unless both judges were recused, nor to decide, after recusing himself, the motion challenging the capacity of the judge ad hoc. We do not think the act requires the joint action of both judges; its object was to enable the additional judge to act for the dispatch of the judicial business, necessarily implying his single action. Nor was any exception taken when Judge Potts .recused himself and appointed the judge ad hoc. That appointment was rightfully made, and, in our view, continued in force until the determination of the case. It is claimed that defendant had the right to question the competency of the judge ad hoc on the alleged ground that Judge Richardson had regained his health. In our view, this was not a question the defendant could raise under this act of 1894, and the circumstances of this case. The judges are to “arrange between themselves the judicial work.” To them is left the question of the disposition of the cases. We must presume this case was disposed of in accordance with the arrangement of the judges. Besides, the bill informs us that Judge Potts had seen, talked with Judge Richardson, whose physical inability to try the case is certified to this court by Judge Potts. We think the bill shows the basis for the appointment of the judge ad hoc and that the inability of Judge Richardson existed when the case was tried. We do not think, under these circumstances, it is for the defendant to question the competency of the judge ad hoc. ■

This view, too, in our view, renders unimportant the fact that Judge Potts tried the motions challenging the capacity of the judge ad hoc, and it seems it was at defendant’s instance that Judge Potts presided on that occasion.

The reconventional demand for damages is based upon the alleged absence of cause for the writ of sequestration. The statute authorizes the writ when the debt and privilege exists and the defendant fears the plaintiff will conceal, part with or dispose of the property on which the privilege exists. The maturity of the debt, that it was unpaid, and the fact that defendants were selling the property, though in due course of business, afforded the basis for the writ. Code of Practice, Art. 275, as amended; Lowden vs. Robertson, 40 An. 825.

The defendant pleaded in compensation the amount of the penal obligation of the plaintiff not to engage in business. The penal obligation is, of course, conditional in its character, and if susceptible of enforcement at all, the amount is modified in ease of the partial execution of the principal obligations. The plaintiff denies any violation of the agreement in aid of which the penalty was stipulated, or if any, insists it was but partial and inconsiderable. The demand in compensation must be fixed, equally liquidated and demand-able,” as the Code puts it. We think it clear that the demand on a. penal clause, unliquidated and undisputed, can not be pleaded in compensation against a promissory note. This view disposes of the question of tender, one of the defences. C. C., Art. 2209; Lacoste vs. Bordere et al., 7 N. S. 517; Pi vs. Vidal, 5 An. 303. Nor do we think, with due regard to the rights of plaintiff, apprised by the pleadings that he was to meet a plea in compensation admitting of a complete legal defence, that we can deal with the plea as one in re-convention. The lower court has reserved defendant’s rights under the penal obligation, and this, in our view, is all to which defendant is entitled.

The judgment in this case allowed ten per cent, on the amount recovered, of which defendant complained, but that stipulation was in the contract.

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

Nicholls, C. J., absent.


author: Miller, J. Miller, J.

text:
    No. 11,845.
    A. Baldwin vs. John S. Young, Sheriff, et als.
    The vendor under a sale conditioned that the property shall be his until payment Qf tjle pr¡oe does not lose the right thus reserved, because the purchaser for the service and improvement of a building places such property therein, and against the creditor of the purchaser with a mortgage on the building the unpaid vendor may enforce his right to remove the property sold. Lapene va, McCan, 28 An. 749; Carlin vs. Gordy, 32 An. 1285; 31 An. 735; l Troplong Priv. et Hypothec;lies No. 113, p. 793.
    A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      F. G. Thatcher and Alexander & Blanchard for Plaintiff, Appellant.

      Wise & Herndon for Defendants, Appellees.

      Argued and submitted June 11, 1895.
    Opinion handed down June 17, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff seeks to enjoin the removal of a heater and its attachments in a building acquired by him at the sheriff’s sale-under a mortgage of plaintiff on the property, i. e., building and ground. The plaintiff’s position is, the heating apparatus for heating the building, used as a seminary, was placed in it by the owner for its service and improvement, thereby became part of the immovable, was covered by the mortgage, and passed to the plaintiff under the purchase by him at the sheriff’s sale. The heater and attachments were sold to the owner of the building, never paid for,, and under a contract that, until paid for, the vendor should be the-owner of the property sold. The vendor obtained judgment against, the owner for the unpaid price, with the right to remove the property sold, unless payment of the price was made by a given time. It is the removal under that judgment plaintiff enjoins. The argument on behalf of the unpaid vendor is, that his conditional sale did not, divest him of ownership, nor was his right impaired because the purchaser chose to put the property in a building covered then or thereafter by a mortgage, and it is urged that the price being unpaid the vendor can enfoice against the' mortgage creditor the right to remove the property as decreed in the suit of the vendor against the owner. The judgment of the lower court sustained the vendor and plaintiff, the mortgage creditor, appeals.

The question here, in a varied form, has been the subject of previous adjudications. It is familiar that our law makes part of the immovable, things that have been added by the owner for the improvement and service of the property. Hence the mortgage of the immovable covers not only the soil, the building, but the appurtenances designated by the Code. So the sale of the immovable carries the immovable in the sense of the Code. Things the owner has placed on the immovable for its service and improvement become immovable by destination, is the textual declaration made plainer by the illustration in the Code, of cattle intended for cultivation, implements of husbandry, seeds, beehives, mills, kettles and machinery, and the Code adds all movables attached to the building by the owner with plaster or mortar not capable of being detached without breaking or injuring the building. Civil Code, Arts. 462, 463, 467, 468, 469; Lucas vs. Brooks, 23 An. 117; Theurer vs. Nautre, 23 An. 749; Pohlman vs. De Bouchel, 32 An. 1158; Weil vs. Lapeyre, 38 An. 303; Rochereau vs. Bobb, 27 An. 657. The principle that movables added to the immovable for its improvement, while inflexibly applied as between the owner and his vendee or mortgagee, is yet subject to well-defined exceptions. The Code itself rec;gnizes the right of the third person to remove or claim compensation for his works or constructions on the immovable of another, yet if made by the owner the improvements would undoubtedly be subject to any mortgage by him on the immovable. Civil Code, Arts. 506, 507. So the privilege accorded by law to the vendor of movables still subsists though the movables are attached by the purchaser to the immovable, and will be enforced against the mortgage creditor. The French commentators state the law by a commonplace illustration : the workman sells the farmer a tub which he places on his farm for its improvement; the tub thus becomes part of the immovable, but shall this change deprive the workman of his privilege? The commentators answer in the negative and affirm until paid for, the vendor notwithstanding the change preserves un droit reél on the article sold. 1 Troplong Priv. and Hypoth. No. 113; Lapene vs. McCan, 28 An. 749; Hall vs. Wyche, 31 An. 735; Carlin vs. Gordy, 32 An. 1285. The authorities, we think, sustain the right of the unpaid vendor to enforce his privilege on the movable sold, although by the act of the purchaser it has become part of the immovable.

The vendor of a movable is apprised by law that without registry he preserves a privilege on the thing sold. Civil Code, Art. 3227; Constitution, Art. 176. It is difficult to see in the light of the provision in the Constitution that the privilege can be defeated by the use the purchaser makes of the thing sold. There is a decision in 1857 that the privilege must be recorded to avail if the thing sold has been incorporated with so as to become part of the immovable. The decision has no support in the French authorities, nor in the later adjudications of this court, and where they deal with registry at all it is because the Constitution in existence required all privileges to be recorded. Gary vs. Burguieres, 12 An. 227; Constitution 1868, Art. 123. In this case it is not his privilege for the price on which the vendor insists. It is his ownership of the movable he demands If the law will not allow the mortgage creditor to defeat the privilege on the movable which, unpaid for, happens to be placed in the building subject to the mortgage, it is not easy to appreciate why on the same principle the ownership of the movable should not be equally protected against the mortgage creditor.

On what principle can the mortgage be extended beyond the property of the debtor. Civil Code, Art. 3278. Instances are not infrequent of the property of third persons placed by them on the mortgaged property, but it has never been supposed such articles were subject to the mortgage. In this case there is no controversy on the issue of the ownership of the heater. It belongs to the vendor under his conditional sale. It is the case of the property of the third person never subjected to the mortgage, unless it is to be maintained that our Code transforms the property of the vendor who has never parted with his ownership into that of the purchaser. Can it be said the law will enforce against the mortgage creditor the privilege of the vendor for the price of the thing sold on the mortgaged premises, but for the benefit of the mortgage creditor will not permit the vendor to remove that property, though no price has ever been paid, and under the conditional sale the vendor is the owner of the property. We find no warrant in our Code for this view of the law. It seems to rest on the protection it is claimed the law gives to the creditor who takes the mortgage on the faith of the public records showing no encumbrance on the property,' or who spreads on the records his mortgage notice to all it is urged, that no lien can be acquired to the prejudice of the mortgage. There are striking analogies, at least, opposed to this view. The law, notwithstanding the recorded mortgage, will enforce against the creditor the claim of the workman for work on the property mortgaged; the owner of the immovable is not permitted to profit by the construction or works of a third person on the immovable; the mortgage creditor must pay for the improvements of the third possessor, and we think it beyond doubt that the mortgage yields to the vendor’s privilege on the movable sold and attached to the mortgaged property. Civil Code, Arts. 3268, 507; Penn vs. Citizens Bank, 32 An. 195; Citizens Bank vs. Miller, 44 An. 199; Lapene vs. McCann, 28 An. 749; Carlin vs. Gordy, 32 An. 1285; 1 Troplong Priv. and Hypoth., No. 113. It seems to us on the same principle the claim of the vendor, who remains the owner of the movable placed in the mortgaged premises must be admitted against the mortgaged creditor, and in reaching this conclusion we have given the fullest consideration to the argument and authorities cited by plaintiff’s counsel.

There might be difficulty in some cases attending the removal of the movable property from the building in which it is placed. The judgment of the lower court restricts the claim of the vendor to that part of the property sold which can be, as we appreciate the testimony, detached without injury to the building.

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

Nicholls, O. J., absent.

On Application for a Rehearing:

Miller, J.

The petition for the rehearing directs attention to that part of the judgment of the lower court which condemns the plaintiff to pay costs and allows damages for the injunction dissolved by the judgment. It is urged in the petition that neither costs nor damages should be allowed, because the plaintiff’s injunction was maintained in part.

The real controversy was as to the defendant’s right to remove any portion of the property. The judgment maintained defendant’s position so far as the pipes are involved. An injunction maintained only on an immaterial point will not affect defendant’s right to costs or damages. Morgan vs. Driggs, 3 An. 124; Rowly vs. Kemp, 2 An. 360. If the controversy re’ated only to the piping, in all probability defendants would have promptly surrendered all claim to the pipes, and there would have been no necessity for an injunction. Nor was the intention of the lower court called to the question of costs proper in all cases, if an error in that respect is committed, and that is the sole ground of complaint. The court will not reverse a judgment merely because of an error as to costs not the subject of any controversy nor sought to be corrected in the lower court. Besides, neither costs nor damages were alluded to in the discussion in this court on the trial of the case, and hence are not to be urged on the rehearing. Bank vs. Lawless, 3 An. 129; Fulton vs. Brown & Phelan, 10 An. 350; Ames vs. Merchants’ Insurance Company, 2 An. 594; C. P. 912; Stafford vs. Smith, 6 La. 93; Stark vs. Burke et al., 9 An. 344; Succession of Samuel Broom, 14 An. 67.

Rehearing refused.


text:
    No. 11,866.
    Washington State Bank vs. G. R. Baillio, Constable, etc.
    The limitation of ten mills of parish or municipal taxation permits the levy up to that limit by the parish, and the levy up to the same limit by the municipal corporation. Constitution, Art. 209; 36 An. 328; 31 An. 362; 38 An. 230.
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      Kenneth Baillio for Plaintiff, Appellee.

      Estülétte & Dupré and E. B. Dubuisson for Town of Washington, Defendant, Appellant.
    Submitted on briefs June 10, 1895.
    Opinion handed down June 21, 1895.
    Opinion refusing rehearing June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

This controversy is as to the right of the town of Washington to levy a tax of ten mills for municipal purposes. The parish of St. Landry has levied a tax of five mills, and the plaintiff resists the tax on the ground that, under Art. 209 of the Constitution, the tax of the town and parish can not excéed ten mills. The judgment of the lower court sustained plaintiff’s injunction against the tax, and defendant appeals.

The question depends on the construction of Art. 209 of the Constitution, that no parish or muncipal tax shall exceed ten mills. The alternative, we think, marks the limitation for the town or parish, not the aggregate of the tax of both; that is, each is entitled to levy a tax up to ten mills. Laycock vs. City of Baton Rouge, 36 An. 328; Favrot vs. Baton Rouge, 38 An. 230; Barrow vs. Heppler, 34 An. 362. If the view prevailed that the parish and town tax together was intended to be subject to the ten-mill limitation, then the tax of either might exclude or leave little scope for the tax by the other.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed at plaintiff’s costs.

Nicholls, C. J., absent.

On Application for Rehearing.

The proposition advanced in the argument for the rehearing is, substantially, that municipal taxation in the sense of Art. 209 of the Oonstitution includes parish and town taxation, when the town is included in the parish, so that the ten mills limitation applies to the tax levy of the parish and town. Our attention is called to Act No-78 of 1880 as supporting the argument.

It is familiar that under all our Constitutions parish taxation for parish purposes, and the tax of the town or municipal corporation in the parish for municipal purposes, were constantly exerted. The result was the taxpayer paid the State, the parish, and also the tax laid by the incorporated town in the parish (Iberia Parish vs. Chiapella, 30 An. 1143). Of course, the framers of the Constitution of 1879 were cognizant of the modes of taxation incident to our system of government. The Constitution expressly recognized the three forms of taxation hitherto subsisting; i. e., State, parish and municipal. When the limitation was introduced these forms were again recognized. First, there is the limitation on State taxation; then comes that on parish or municipal taxation (Arts. 202,209). The intent to deal with each separately is marked by the disjunctive: No parish or municipal tax shall exceed ten mills. The phrase that follows, for all purposes whatsoever,” it seems to us refers to each parish or municipal tax stated in the previous part of the sentence. This construction is supported by the recognition of parish taxation and municipal taxation, one for parish purposes and the other for town purposes, and the design to limit each. If, as stated in the original opinion, the limit was applicable to the aggregate of parish and town taxation, there would be no specific limit on each, and hence no guide for each to observe. The parish might attempt to tax up to the ten mills, and so might the town. In that contingency the aggregate taxation could not be maintained and the courts would have to distribute the tax between the parish and town, a function legislative in its character, not judicial. The Act No. 78 of 1880, to which our attention is directed, in its first section preserves the distinction between parish and municipal taxation. Its language is: “ No parish or municipal tax shall exceed ten mills,” and in the closing portion of the section, although the conjunction “and” is used in prohibiting every parish and municipality from taxation exceeding ten mills, still the limitation is, in our view, intended to refer to the maximum each; i. e., the parish or municipality in the parish shall levy. The precise phase oí the question was not before the court, but we think the view we take is, in effect, maintained in the case of Laycock vs. City of Baton Rouge, 36 An. 328, and in the ease of Favrot vs. the City of Baton Rouge, 38 An. 230.

The rehearing is refused.


text:
    No. 11,784.
    Raphael Maria del Castillo vs. W. L. McConnico et als.
    The ordinance for the relief of delinquent taxpayers in the Constitution of 1879 authorizes the sale in the mode directed by the Legislature of property on which taxes prior to 1879 were due, as well as of property forfeited or belonging to the State at the date of the Constitution.
    Under this ordinance it was competent for the Legislature to direct the sale on newspaper notice for taxes of such property, i. e. that forfeited or belonging to the State, or on which taxes levied prior to 1879 were due. See Ordinance Ibid. Act No. 82 of 1884.
    The court adheres to the line of decisions that the deed to the tax purchaser under the Act No.'82 of 1884 is conclusive of the sufficiency of the assessment of the property. 40 An. 142; 41 An. 765 and similar decisions.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      Kernan & Wall and John Watt for Plaintiff, Appellant.

      R. H. Lea for Defendant, Appellee.

      Clegg & Thorpe and J. Zaeh. Spearing for Defendants inWarranty, Appellees.
    Argued and submitted June 5, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff brings this petitory action to recover a square of ground in the sixth district of the city, acquired by him in 1851. The defendant and his warrantors claim under an adjudication for payment of State taxes accrued prior to 1879, made to Orloff Lake in 1885, and based on the act of the Legislature, No. 82 of 1884, directing sales for taxes. The defences to plaintiff’s suit are the exceptions of no cause of action; prescription of two, three and five years; of res judicata, based on a judgment of the District Court condemning one of the warrantors to accept the tax title; the defence is also urged that the property was, subsequently to the tax sale, adjudicated to the State for the taxes of 1880 to 1882, assessed in the name of R. Castillo, and finally the defence relies on the tax sale of 1885, under the Act No. 82 of 1884, as vesting complete title in Lake and those claiming under him. From the judgment of the lower court, in favor of the defendant, this appeal is prosecuted by plaintiff.

It appears that from 1876 to 1878 the property was assessed as that of R. Castillo, that the property was never forfeited or adjudicated to the State for these taxes, the only adjudication to the State for the taxes of 1880 to 1883 being assessed to R. Costello; the adjudication to Lake in 1886, under the act of 1884, was followed by the deed authorized by the act, and it further appears that one of Lake’s vendees has paid all the taxes accrued since 1879, manifestly intended to complete the tax title.

The vigorous argument in this court on behalf of the plaintiff mainly rests on his contention that the Act No. 82 of 1884 must be restricted to the sale of property forfeited to the State, or to which the State had a title at the date of the Constitution of 1879, it being conceded in this case there was no such forfeiture or title. The pro - vision in the Constitution of 1879 for the relief of delinquent taxpayers might well, as of first impression, suggest its applicability only to sales of property forfeited to the State or belonging to it when the Constitution was adopted. This impression, in our view, must yield to more careful reading of the instrument. In the last portions of the ordinance there is, in our view, a distinct reference to the property on which taxes are due, levied prior to 1879, followed by the direction that all such property shall be sold in the manner provided by law. Such property embraces not only that forfeited or belonging to the State, mentioned in the beginning of the ordinance (the fifth line) bui also property on which taxes were due prior to 1879, and not redeemed within the period given by the ordinance. Indeed, the interpretation we announce can not be deemed open. In the matter of Orloff Lake, 40 An. 242; In re Douglas, 41 An. 765. and other decisions of this court.

The acts No. 107 of 1880, 98 of 1882, and No. 82 of 1884, followed this ordinance. The first two acts were deemed not sufficiently comprehensive, but in the last act the sale of all property was authorized on which taxes are, due the State prior to 1879, as well as property forfeited. See the act of 1884, Sees. 1, 3. Under the act the sale was to be made after advertisement, giving the name of the party in whose name the property was assessed or the name of the present owner. The deed under the act was to be conclusive evidence among other things that the property was assessed according to law. Sec. 3. Under this act and deed issued under it, the defendant holds title. It is urged on behalf of plaintiff that the property was not properly assessed for the taxes prior to 1879, because the assessment was in the name of R. Castillo instead of Rafael Maria Del Castillo. We are relieved of the necessity of passing on the question of the sufficiency of this assessment. The act of 1884 makes the deed conclusive of the sufficiency of the assessment of the prop rty sold under it. The question of the competency of this legislation in this respect has been before this court onrepeated occasions. The argument now addressed to us against the constitutionality and interpretation of the act must be viewed as directed against a series of decisions of this court. To those decisions we must adhere and hold the act precludes the inquiry. In the matter of Orloff Lake, 40 An. 142; In re Douglas, 41 An. 765; Breaux vs. Negrotto, Jr., 43 An. 430, et seq.

It is urged on us that the property not forfeited to the State prior to 1879 could not be sold without the notice specified in Art. 210 of the Constitution. That article applies manifestly to sales for taxes since 1879. Sales of property for taxes prior to 1879 are governed by the ordinance for the relief of delinquent taxpayers, and by the act of 1884 prescribing newspaper notice. In this case the advertisement gave the full name of plaintiff, adding his estate or heirs, and in our view the advertisement conformed to the requirement of the act.

In all aspects of the case, we think the defendant’s title is protected by a line of decisions, that no court should deem itself at liberty to overthrow, especially as they are based on that provision of our organic law dealing with the subject of long deferred taxes, left still unpaid after the liberal grace extended the owners by the ordinance.

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

Nicholls, C. J., absent.


text:
    No. 11,786.
    The New Orleans & Carrollton Railroad Company vs. The Canal & Claiborne Railroad Company.
    Railroad companies with franchises to use the same street may be required to use one track, and in the exercise of this power a company may acquire the right to use the tracks laid by another, but compensation for such use must be made. City Charter, Acts 1882, Sec. 7; 39 An. 709; 41 An. 561; 44 An. 485 ; 47 An 315.
    If the tracks thus subjected to the common use of the two companies are unfitted by age, long use or other cause, to serve the purposes of these two companies, an action may be maintained by one against the other to compel the repair or reconstruction of the tracks at the joint expense of the companies.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      John M. Bonner and Henry P. Dart for Plaintiff, Appellant.

      James B. Beckwith and Henry J. Leovy for Defendant, Appellee.
    Argued and submitted May 7, 1895.
    Opinion handed down May 20, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff and defendant each have franchises from the city of New Orleans to operate a railway through the streets. The Canal & Claiborne Street Railroad Company obtained a franchise in 1867 to run cars pulled by mules through streets, one of which was Canal street. It laid its tracks accordingly, and in 1887, the franchise having expired, another was obtained by the defendant, the Canal & Claiborne Railroad, with the right to use the same tracks. In 1882, while the franchise of the Canal & Claiborne Street Railroad was in force, the city granted the franchise to the plaintiff, the New Orleans & Carrollton Railroad Company, and under the power claimed by the city, conferred on plaintiff the right to use the Oanal street tracks laid by the Olaiborne Company. Later, in 1892, the use of electricity as a motor for the plaintiff’s cars was authorized by the city, and by the same ordinance the right previously conferred of using the Canal street tracks, with the privilege of placing an extra rail outside or between those tracks, was repeated. This litigation arises from the differences between these two companies, plaintiff and defendant, in reference to the reconstruction of the tracks, the use of which is claimed by both, but that claim on the part of plaintiff the defendant strenuously disputes. The petition asserts the right to the use of the Canal street tracks, under plaintiff’s franchise; avers that the material in place on the present tracks is old, worn, unfitted for use, of little value even for a horse railway, and that petitioner desires to expropriate so much material as is necessary to reconstruct the roadbed so as to adapt it for use by the cars of petitioner, propelled by electricity. The petition concedes the defendant will have the benefit of the new constructions of the road-bed and, it is averred, should contribute to the expense, and there is a disclaimer in the petition of any desire to expropriate the whole of the road-bed, but only the stringers and cross-ties, and the portions of the road-bed requiring removal, so as to permit the new construction with new and heavy rails required for electric cars. The prayer is for the decree that the stringers, cross-ties and material in place, requiring removal, be taken up, adjudged to the petitioner, on paying such damages as may be assessed by a jury to be drawn in accordance with the law on the subject of expropriations. There was filed a supplemental petition, averring an offer of five thousand dollars by plaintiffs to defendant to obtain its consent to the reconstruction, and the sum tendered, it is averred, is largely in excess of any possible damage to defendant, and by another supplemental petition it is averred that the defendant intended to substitute electricity as the power to propel its cars; that plaintiff was not aware of this when it offered the five thousand dollars; that the expense of the reconstruction should be divided between the plaintiff and defendant, and the modification in the relief previously sought is that the reconstruction be decreed; defendant be condemned to pay half this expense, with petitioner’s right to run over the reconstructed tracks, the old material to remain the property of the defendant.

The defendant excepted to the suit on the grounds, substantially, that there was no warrant for the taking of defendant’s property proposed by the petition; that the grants from the city on which plaintiff relies do not refer to defendant’s property, or if there is any such reference, the city was without power to confer the rights in respect to defendant’stracks alleged by plaintiff; that defendant’s railway and property were acquired from the city under a contract protected by the Constitution of the United States, and no portion of the property and railway can be taken without the consent of the defendant; that petitioner’s alleged grants convey at best a mere license to use defendant’s tracks constructed for cars drawn by mules, and carry no right to convert the road-bed into a road for the electric propulsion of cars, with the appropriation of space for trolley wires and other attendants of the electric car system which it is claimed would preclude any use of the tracks by defendant, and the exceptions insist there is no law for the appropriation claimed by plaintiff.

The judgment of the lower court sustained these exceptions and plaintiff appeals.

In our view the contention that the plaintiff has no right to use the defendant’s tracks on Canal street finds its answer in the city charter, subordinate to which the franchises of both companies are held. It is obvious public policy that roads using one of the great thoroughfares of the city should be confined as far as practicable to one track. It is declared in the charter that the Council shall have power to compel all lines in any one street to run on and use one and the same track and turn-table (Act No. 20 of 1882, Sec. 7). That right was conferred on the plaintiff by its contract with the city in 1882, a few months after the city charter was passed. The defendant obtained its franchise in 1887. It author-zed the use of the tracks of the Canal & Claiborne Streets Railroad Company, the franchise of which company had expired. It is, in our opinion, clear that the defendant took its franchise subject to the common use of the tracks by plaintiff and defendant. In a certain sense the present company was the assignee of the previous Canal & Claiborne Streets Railroad Company, that laid the tracks now in controversy. In the previous litigation before this court there has been the repeated recognition of the right of the defendant, as well as of its predecessor, to compensation for the use of its tracks by any other company. Subject to that right there is, it seems to us, no escape from the conclusion that it was competent for the city to confer on the plaintiff the use of these Oanal street tracks. There was no impairment of any contract of defendant, for his contract was qualified from its incipiency, and at all times by that privilege of other companies the exception questions. Nor can we appreciate the basis of the contention that the grant to plaintiff does not refer to the tracks in controversy here. The reference in the specifications and plaintiff’s contract of 1882 is to “ the said Claiborne Railroad Company’s tracks.” The title of the company then existing that had laid the tracks on Canal street is abbreviated, but of the tracks and company intended, i. e. the Canal & Claiborne Streets Railroad Company, there can be no doubt. See Canal & Claiborne Streets Railroad Company vs. City of New Orleans, 39 An. 709; The Canal & Claiborne Streets Railroad Company vs. Crescent City Railroad Company, 41 An. 561; Canal & Claiborne Railroad Company vs. Crescent City Railroad Company et al., 44 An. 485; Canal & Claiborne Railroad Company vs. Crescent City Railroad Company, 47 An. 315.

We find no occasion to discuss the question of expropriation, which has received a large share of attention in the argument. In our view, the supplemental petition presents the issue whether the corporation having the use of the tracks in common with another can compel the reconstruction of tracks alleged to be unfitted for use by age and decay. We think, under limitations to secure the use by both, and in other respects, the right must be recognized.

Determining only that the petition discloses a cause of action, and therefore that the exceptions must be overruled, of course there can be no decision on the issues involved. We feel called upon, however, to indicate the mode and conditions of the relief we deem ap - propriate to the case. In our view there should be no reconstruction of the tracks if the testimony shows they are in such condition as admits of their use by both companies; if reconstructed, it must be in such mode as will permit their free use by both, and with the least inconvenience to both, and at their joint, expense; if the two companies can not agree, the reconstruction to be made by the Canal & Claiborne Railroad Company, or if it does not choose to hegin the work within the delay to be fixed by the court, then the work to be performed by the plaintiff company, suitable compensation to be paid the Canal & Claiborne Railroad Company for any loss of materials or other damage incident to the reconstruction, and under such other limitations as the court shall prescribe to secure the right and interests of both companies. This indication of our views as to-the adjustment of the differences of these companies, of course, determines no issues only to be adjudged on the merits. We simply hold that by the reason of the use of the tracks accorded to both, and in view of the allegations in the petition, the plaintiff is entitled to go to trial in the ordinary mode on the petition.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, maintaining the exceptions, be annulled, avoided and reversed, and the trial of the issue, after answer filed, proceed according to law and that defendant pay costs.


text:
    No. 11,853.
    A. S. Brown vs. F. P. Stubbs.
    Under an agreement to submit differences to arbitration under a penalty stipu* lated to be paid by the party who refuses to abide by the arbitration, such party must pay the penalty in order to sue to annul the award. O. C.,Arts. 3106, 3130.
    APPEAL from the Fifth Judicial Court for the Parish of Ouachita. Munholland, J. ad hoc.

      Newton & Madison for Plaintiff, Appellant.

      Stubbs & Bussell for Defendant, Appellee.
    Argued and submitted June 13, 1895.
    Opinion handed down June 21, 1895.
   The opinion of the court was delivered by

Miller, J.

The question in this case is after parties have agreed to refer their differences to arbitration, under an agreed penalty to be paid by the party who does not submit, whether a suit can be brought to annul the award without first paying the penalty. In this case the plaintiff, who sues to annul, places his action on the grounds that the arbitrator and umpire neglected and refused to hear and consider testimony; to examine books, considered expert statements in plaintiff’s absence; refused to summon and examine his witnesses, and transcended their authority. Plaintiff insists that when the award is resisted on such grounds the penalty is not to be exacted as a prerequisite • to suit attacking the award. Defendant, on the other hand, insists it matters not what grounds are urged, the award can not be assailed without first payment of the penalty. From the judgment of the lower court, in defendant’s favor, plaintiff appeals.

There is no decision on this point-by our courts. The Arts. 3106 and 3130 of our Code providing a penalty was to enforce the policy of making the arbitration end the controversy. The language of the last article is of the clearest. If the controversy can be re-opened on the grounds stated in the petition, in most, if not all cases, the award would initiate, instead of terminating contention. The articles in ora Code take no account of the causes for refusing to abide by arbitration. Nor does Art. 2047 of the Napoleon Code. Under that article it has been a subject of discussion whether the penalty is not incurred even by a suit to correct) error of calculation. Notes to Art. 2047; Gilbert, Code Annoté. We have given careful attention to the argument on behalf of defendant; that distinguishes between a suit to annul the award, because deemed to be erroneous on the merits, and the suit to avoid it founded on causes of the character alleged in the petition. The argument concedes that in the one case payment of the penalty would be a prerequisite to the suit to annul, but affirms that such suit would not be required in the other case. Ora Code makes no such distinction. It appreciates that the disappointed party might well suppose ground when none existed. Payment of the penalty, the Code declares, should be made by the party who appeals from it, and by appeal is meant recourse to the courts. Civil Code, Art. 3130. The court can make no distinction when the law makes none.

The plaintiff refers to the difference in the phraseology of the French and English texts of Art. 3106. We think the word “ appeal” means the appropriate judicial contestation of the award, as there is no appeal as in the case of the judgment of an inferior court. The penalty is put on either party who resists the award, seems to be the reasonable conclusion.

The question is, we think, controlled by the terms of Article 3180. From the best consideration we have given it, we conclude the exception was well taken.

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

Nicholls, C. J., absent.


author: Per Curiam.

text:
    No. 11,736.
    The State ex rel. John Snider vs. Hon. F. A. Monroe, Judge of Division “ C,” Civil District Court, Parish of Orleans.
    ^^PPLICATION for Writs of Mandamus and Certiorari.

      George L. Bright for Relator.
    Submitted January 29, 1895.
    Opinion handed down April 10, 1895.
   Per Curiam.

We have considered with care the petition presented to us in the case of Snider vs. The Judge of Division O ” of the Civil District Court. The case made by the petition is of three verdicts of juries awarding plaintiff damages, each set aside by the judge of the lower court, and the petition avers that on setting aside the last verdict, the judge announced he would set aside any verdict that might be rendered, and that the relator could have a remedy, if the relator would waive the jury and submit the case to the court. By this, we presume, was meant that the judge would refuse to sign any judgment based on a verdict he deemed excessive.

It is argued, with great earnestness, by the relator, that the course of the lower court is, in effect, to deprive the relator of his constitutional right of trial by jury, and it is urged on us that under our supervisory power over inferior courts a mandamus should issue to compel the judge to set aside his last order directing the new trial, and to sign the judgment, so as to give the plaintiff in the suit the benefit of the verdict and affording the defendant the benefit of an appeal. The plaintiff refers ns to the decisions of this court, recognizing the weight due to verdicts of juries; to the legislation of other Srates, limiting the number of new trials, and reference is made also to Thompson on Trials, referring to the subject.

Under our jurisprudence this court has no control of a general character over inferior courts. If the grounds of complaint urged against the decisions of the lower courts in unappealable cases be such as pronouncing judgments without citation, or refusing to hear witnesses, or other violations of right, rendering the proceedings void, the wrong may be- corrected by the writ of certiorari. The law is careful to limit the writ to such cases. Code of Practice, Arts. 855, 857. The writ of prohibition issues only when the lower court exceeds its jurisdiction. Code of Practice, 845. Our powers are enlarged by the Constitution in respect to these writs so as to embrace all lower courts, but are still substantially restricted within the limits of the Code. The series of decisions, in cases on application for these writs, all affirm the bounds of our jurisdiction in this respect, dispensing with the necessity of any special reference.

The Code of Practice confers on judges of the lower court the power to sign judgments or grant new trials. Such functions involve the exercise of judgment which no other court can control. It has often been held that the lower courts can not be compelled to act in any matter in reference to which they must exercise judgment. To compel the lower court to set aside an order for a new trial in this case would be manifestly to supersede his power to refuse or grant the new trial, a power the law supposes he will exercise in accordance with his judgment. It is for the Legislature to determine what jurisdiction this court shall exercise and within the scope of the jurisdiction conferred on us. We are of opinion we can not grant the relief the relator seeks.


author: Breaux, J.

text:
    No. 11,753.
    A. J. Cahill vs. People’s Slaughter House and Refrigerating Company, Limited.
    The directors of a corporation hold out to their creditors, that under their management they 'will be paid.
    They, the directors, can not, in view of this, have the property (of the corporation, in foreclosing proceeding on their mortgage of a date subsequent) sold and successfully iuvo&e their personal rights as buyers to defeat these very creditors of theirs.
    The directors had it in their power to pay the debts.
    They could not fail to pay these debts, and retain, personally, every right to contest the privilege to secure an amount they admit due to their creditors.
    The right claimed on their mortgages is inconsistent with their obligation as directors to their creditors, who were not third persons.

      \ PPBAL from the Oivil District Ooart for the Parish of Orleans, ii Monroe, J.

      Rouse & Grant and Bernard MeOloskey for A. J. Oahill and Leon and Charles Godchaux, Plaintiffs and Appellants.

      E. Howard MeOaleb, Jr., Purchaser, and Attorney for Oharles A. Thiel, Appellants.

      John Dymond, Jr., Geo. W. Flynn, Dinkelspiel & Hart, E. N. Whittemore and John B. Fisher for Intervenors and Appellees.
    Argued and submitted on briefs April 11, 1895.
    Opinion handed down April 22, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff applied for and obtained an order of seizure and sale upon a mortgage recorded in the mortgage office May 15, 1893, commanding the sheriff to seize and sell the property described in the deed.

The amount of the sale, ñfty-six thousand five hundred and fifty dollars, was not sufficient to pay the amount due on the mortgage upon which the process to foreclose issued, much less the debts claimed as privileged.

The contest is between the holders of bonds secured by the mortgage and creditors who claim a superior right under alleged privileges.

The appellants admit that the amounts claimed by these creditors are due and deny that they are entitled to a privilege. The denial is qualified by excepting the Delavergne Refrigerating Machine Oompany, entitled, it is admitted, to the privilege it claims. The company’s property was encumbered with a mortgage of thirty-five thousand dollars. The following are the facts with reference to that mortgage:

The stock of the company was fixed at three hundred thousand dollars. The stockholders were slow in paying, their subscriptions. The board, in consequence, determined to borrow the amount of thirty-five thousand dollars on mortgage. It was taken by three of the directors. In other words, these directors received thirty-five bonds for the debt of thirty-five thousand dollars, not matured at the time of the transaction, which the company owed them.

Subsequently the board of directors resolved to finish the plant by borrowing money on bonds secured by mortgage on the company’s property, and to exchange a portion of the bonds thus secured for the prior mortgage of thirty-five thousand. The total of the bonds thus secured by mortgage was one hundred and twenty-five thousand dollars, that is, one hundred and twenty-five bonds of one thousand dollars each.

Thirty-five of these bonds were exchanged for the prior mortgage, which these directors holding the prior mortgage accepted and consented to a cancellation of their prior-mortgage.

It is proved that more than .eighty of these one hundred and twenty-five bonds issued are held by the directors, and as to the 80-125 of the proceeds of the sale the contest is between the members of the board of directors who are creditors (that is, owners of nearly all the bonds secured by mortgages as mentioned supra) and the creditors of the -company claiming as privilege, who are:

Manion & Co .....................................................................................................$4,350 06

Edward Thompson..................................................................................... 1,603 51

The Southern Electrical Manufacturing Supply Company........................... 531 00

The Delavergne Refrigerating Company................................................. 1,600 00

Frank Schiele................................................................................................ 690 23

and the civil sheriff for costs.

These privileges of the first five named creditors were recorded, but not strictly within the time required by law to give them preference over a previously existing duly recorded mortgage securing the claim of a third person.

Manion & Co. and Edward Thompson are for labor and material in the construction of the slaughter house, under Art. 8249, C. C.

The Southern Electrical Manufacturing and Supply Company and the Delayergne Refrigerating Machine Company are for the balance price, admtted, of movables.

The last, Frank Schiele, for salary and labor.

Prior to the sale creditors of the defendant claiming privileges Obtained orders for the separate appraisement and sale of particular property.

All the parties were finally brought before the court quasi in concurso.

The plaintiff in the proceedings prayed to have the mortgage securing the bonds held by him decreed prior in rank to any other claim against the proceeds of the sale.

The creditors who claim a privilege urge that the directors of a company by whom a contract is made for labor and materials furnished to the company are not third persons, and can not take advantage of a delay in inscribing the contract or the evidence of the debt. It was proved during the trial that plaintiff is not the owner of the bonds upon which he brought suit to foreclose the mortgage. That they were owned by one of the directors who chose to foreclose in the name of a third person.

The property was adjudicated to a trustee for six of the directors of the company, together with others, not directors. One of these directors is really the owner of the bonds sued on, for whom the nominal plaintiff brought the suit.

The adjudícateos of the property and the nominal plaintiff, appellants, do not oppose the judgment in favor of the Delavergne Refrigerating Ice Machine Company and the civil sheriff for costs; but they pray that the judgments in favor of Manion & Co., Edward Thompson, Frank Schiele, agent, and the Southern Electrical Manufacturing and Supply Company be reserved as far as it gives a privilege upon the property superior to the mortgage of the bondholders.

The controversy on appeal is between the creditors who claim privileges and the creditors who claim on their bonds secured by mortgage. The creditors contend, that the directors are not third persons.

It is settled that a corporation may borrow money of a director, for the payment of which it is absolutely bound.

But the mortgage given is subject to the closest scrutin'y; candor and fair dealings are essential to its validity.

In Twin Lick Oil Co. vs. Marbury, 91 U. S. 587, 590, the right of a director, who is a creditor of a corporation, is recognized, and he realized the amount due him upon the security he held against the company of which he was a director.

The contest in that case was between the director and one of the stockholders.

Thj obligation of the directors toward a creditor, under whose authority contracts were made, materials purchased and labor performed, has a greater element of responsibility.'

These creditors, unlike shareholders, can have no hearing in the management, no right to examine the books under any circumstances, and none of the rights of the stockholder.

The case here is an extreme one.

The accounts of appellees, save a few hundred dollars, were all due at the time that the corporation, through the Board of Directors, resolved to issue bonds, in order, we are informed, to hold the shares of the capital stock, not disposed of, in its possession and procure the money necessary to complete the installation.

Virtually, these bonds were designed to perform the office of preferred stock; they were made and issued in lieu of the stock in possession of the company.

They, under the circumstance, can not entirely escape, when creditors are concerned, the onus and responsibility attaching to stock.

QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS.

The purpose was, presumably, to add to the value of the shares by issuing and negotiating bonds.

It is proved that nearly all of them were owned by the directors.

The mortgage was foreclosed, and they, with two or three others, not directors, became the owhers.

The mortgage and the sale under foreclosure, it is claimed by plaintiff and appellant, are superior to the claims of the appellees. We do not think it is possible by the foreclosure of a mortgage, as here foreclosed, to put an end to the claim of creditors, in the individual interest of the directors. These debts were contracted under their management, and while they were in office.

They are not third parties; they had full knowledge and were under some obligation to see these creditors paid, and not to claim priority over their claims. Cochran vs. Ocean Dry Dock Company, 30 An. 1365; Cook on Stock and Bondholders, See. 661.

Mortgages and privileges affect third persons when recorded.

The director who is the trustee of the creditor, who has it in his power to stop expenses and prevent losses to the creditor, is not a third person who can acquire rights superior to him.

After these debts to appellees had been incurred the larger amount was borrowed by the defendant company.

It was expended in a short time, under the management of the board of directors.

Not having paid the appellees from these large funds, are they not, as creditors, precluded by their trust from securing to themselves by their official action any preference or advantage over other creditors?

The director can not,.in law, under his management expend large amounts and leave his creditor to the unequal contest of establishing his claim as best he may.

As between the directors’ mortgage on property bought as in this case and the privilege claimed by the creditors the preponderance of right is decidedly in favor of the latter.

The creditor has the right to the exercise of disinterested diligence and zeal of the director in behalf of the payment of his claim.

The equity of the creditors’ claim is of a persuasive character.

Here the directors and the furnisher of supplies to them and of labor are the contestants. However binding the former’s claim is against other interests it does not defeat the privilege claimed.

This being our conclusion we deem it unnecessary to pass upon the Other question raised.

The judgment appealed from is affirmed.