author: Manning, J. Pociié, J.

text:
    No. 8648.
    The State of Louisiana vs. Louis Gilkie.
    An indictment is not vicious for duplicity because two distinct offences are charged therein, provided they be in separate counts, nor is it even necessary that they be of the same class of offences if charged in separate counts.
    The Judge can direct a jury to reconsider their verdict beforo it is recorded, if satisfied that a palpable mistake has been made, provided in so doing there is no attempt to influence the jury, or to direct them beyond aiding them to put iu form what they have found.
    A conviction of a less offence than that charged in the indictment, both being of the same generic cl iss. is expressly authorized by our law. And therefore a conviction of inflicting a wound less than mayhem with a dangerous weapon or with intent to kill, denounced as a crime by Sec. 794, Rev. Stats , is legal and regular under an indictment for cutting with a dangerous weapon with iuteut to commit murder, under Sec. 79 L.
    APPEAL from tile Sixth District. Court, Parish of Morehouse: Brigham, J.

      J. G. ¡Egan, Attorney General, for the State, Appellee :
    1 Two distinct felonies may be laid in different counts in the same indictment. Bishop on Crim. Procedure, vol. 1, Secs. 450 and 451 and authorities there citod.
    2. The court charges the jury properly when it recites the minor offenses embraced in the graver offense sot forth in the indictment, and inf-rms them that they may bring in a verdict of guilty as to anyone of said described offonses. 23 An. 326; 30 An. 313; 23 An. 434.
    •J. The court has a right to direct the jury to reconsider their verdict before it is recorded, audit is its duty to do so when satisfied that there has been a palpable mistake. 3 Parker, 552 ; Proffatt on Jury Trials, Sec. 459.

      4. Cutting and thrusting are sometimes used indiscriminately.

      Nciuion & Ball for Defendant and Appellant:
    On trial under an indictment for cutting another with intent to commit murder, not lying in wait, etc., the court should have given these charges to the jury, counsel for accused having so requested:
    1. “ That to convict the accused of the charge in the indictment, the jury must he satisfied that had deatb ensued it would have been murder, and if the offense (if any) he such that had death ensued, it would not have been murder, the jury should acquit.” Roscoe Cr. Evd., 785, 787; 1 Archibald, 884, 884.
    2. “That if the jury find that the accused out the prosecutrix and that it was done in a sudden affray or iu sudden heat and passion without previous malice, that they cannot find accused guilty of the offense charged in the indictment.” 1 Archibald, 884, 888.
    Under an indictment for cuttiug another with intent to commit murder, not lying in wait, etc., the Judge should not have charged the jury that they might find accused guilty of ' other and distinct statutory offenses.
    After the jury has returned its verdict, that verdict has boon read by the clerk to them, and assented to in open court, it is improper and illegal for the Judge to question the jury as to their intention in the finding of that verdict, to intimate to them what verdict they should render, and to again give them a charge and retire them to their room for further deliberation, and permit another and a different verdict rendered. 30 An. 951, 952, 953, 954; 30 An. 921; 11 An. 395.
    There is no such offeose known to our statutes as “ cutting with intent to commit murder, * not lying in wait,” etc. Revised Statutes, Sec. 791; Sedgwick on Construction of' Statutes, 215.
   The opinion of the Court was delivered by

Manning, J.

From a sentence of imprisonment at hard labor for two years the defendant appeals. The indictment contained two counts: 1, for inflicting wounds upon and cutting Elvira Gilkie with a dangerous weapon with intent to murder, not lyiug in wait, etc.; 2, for same acts committed upon Hadley Hess with intent to inflict wounds less than mayhem. Rev. Stats. See. 791.

There was a motion to quash for duplicity, iu that two distinct offences with different penalties are charged in the same indictment. The motion was properly overruled. Each offense was laid in a separate count. State vs. Depass, 31 Ann. 487, where the point is treated at length. State vs. Prosser, Cheeres, 103; Cash vs. State, 10 Humph. 111. No complaint could he made if the ruling was error, since the State offered to enter a nol. pros, on the second count, and on the defendant objecting, and insisting on a verdict, the jury returned a verdict on that count instanter.

Exception was made to the refusal of the Judge to charge, if the offence he such that had death ensused, it would not have been murder, the jury should acquit.” The jury have the power, and it is their duty, to find a prisoner guilty of a less offence than that charged, if the evidence does not warrant a conviction of the greater, and therefore to tell them they were bound to acquit under those circumstances would he error. The cases cited by defendant’s counsel are under a system which does not permit, or did not when they' were decided, a verdict for a minor offence included in a charge of a graver one of same class. The same reason applies to the refusal to unqualifiedly charge if the jury find that the accused cut FJvira Gilkie in a sudden affray in heat and passion without previous malice, they cannot find him guilty of the offence charged.” The charge was given with the qualification that they might return a verdict of guilty for a less offence than that charged.

The jury returned a verdict in these words: “ we, the jury, find the accused guilty of an assault with a deadly weapon with intent to kill.” The Judge, thinking the verdict was not responsive to the charge, asked the jurors if they intended to find that the accused had inflicted no wound on the woman alleged to have been cut. The foreman replied the intention of the jury was to find the accused guilty of the offence, next highest in grade after that charged. The court informed them they had not done that by' the verdict rendered, when all of them expressed a desire to render a verdict such as the foreman had stated. They were polled and each repeated what had already been said. The Judge informed them they had a right to correct their verdict so as to make it conform to their finding. The jnry retired, and on reappearing rendered the following verdict: “ we, the jury, find the accused guilty of malting an assault with a dangerous weapon with intent to kill, inflicting wounds loss than mayhem,” to all of which excexitiou was taken.

There was manifestly no attempt by the Judge to influence the verdict, but only to assist the jury in putting in form what they had found. A justly esteemed authority in criminal prosecutions has held that the court lias a right to direct the jury to reconsider their verdict before it is recorded, and it is its duty to do so when satisfied there has been a X>alpable mistake. People vs. Bush, 3 Parker, 552. The Judge may require the jury to pass upon the indictment in such form of words as shall constitute a sufficient finding in point of law. Proffat Jury Trials, Sec. 459.

Wharton says: Until the jury are discharged the verdict may be amended. If there is any informality, uncertainty, or impropriety about a verdict, the court may require the jury to amend it before they separate. Even where a verdict of “ not guilty” was pronounced by one of the jurors, which was entered by the clerk in the minute book and the prisoner discharged, it was held that upon it appearing that the verdict the jury intended was “ guilty,” the record could be legally amended, the verdict guilty recorded, and the prisoner committed. 3 Wharton Crim. Law, §3195.

The Judge in the case at bar did not go as far as these authorities warrant, nor do we meau by citing them to entirely approve all of what was there said. He did not direct them at all, nor require them to do anything, but simply enabled them to do what they wanted, but did not know how to do until instructed. Judges cannot shut their eyes to the fact that the modern comxrosition of juries with us is not a guarantee of intelligence, and it is of every day observation that many of those who are by law declared competent jurors are incompetent to understand a verdict of more than two words, and would be staggered if required to frame a longer one. While we should promptly check an inferior Judge in an attempt to influence or direct a jury improperly, we must not hinder his efforts to enlighten them when he does not go beyond the bounds permitted by law.

Arrest of judgment was moved on the ground that the indictment does not charge an offence known to the laws of this State in this, that the charge is for cutting with a dangerous weapon while the statute makes penal only shooting, stabbing, or thrusting with, etc. It is argued that this section of the criminal law has undergone legislative construction, and the omission of the word “cut” has been impliedly declared material by an amendment inserting that word. The legislature did amend Sec. 790 by inserting “ cut, strike,” along with “ shoot, stab, and- thrust,” and singular enough, did not amend Sec. 791, which has the same verbiage, and needed it as much. Acts 1882, p. 40.

It is also urged that the distinction between the words cut and stab was observed in an early case by this Court, where authority was cited for holding that an indictment for cutting was not supported by evidence of stabbing. State vs. Patza, 3 Ann. 514.

Great and beneficial changes have been made in criminal pleading and practice since that decision, not the least important of which is the legalization of a verdict of an offence not charged in 'the indictment, provided it be less in magnitude and of the same generic class. State vs. Ford, 30 Ann. 313.

The gravamen of the charge is the wounding with a dangerous weapon with criminal intent, and the manner of using the weapon ought to be of minor importance. It would be a reproach if, by our law, stabbing one to death was punishable and cutting one to death was not, and it would be a return to those niceties of construction which the lawyers in the infancy of criminal procedure inherited from the schoolmen, to make the degree of guilt depend upon whether the criminal had thrust his weapon forward in the bosom of his victim, or had drawn its sharp edge across his throat.

In disposing of the present case it is not necessary to say whether the charge, as made in the indictment, is embraced within either of the words employed in Sec. 791 of the Revised Statutes. The offence, described and denounced in Sec. 794—whoever shall with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem—is the crime! of which the defendant was convicted, as is manifest from the terms of the verdict. It is an offence of less magnitude than that for which he was indicted, and of the same class, and under the salutary reform in criminal practice, already noted, the jury was authorized to convict of a less offence under the indictment for a greater.

Judgment affirmed.

Dissenting Opinion.

Pociié, J.

I cannot assent to that part of the opinion which justifies the conduct of the District Judge in directing the jury to retire for the purpose of correcting the first verdict which they had found and returned in this case-

in my opinion the question, “ Gentlemen of the Jury, did you find that the accused had inflicted no wound on the woman alleged to have been out ?v was suggestive of the opinion of the Judge that the jury had made an error on the facts of the case, and was manifestly calculated to influence them in receding from their finding. It was evidently an expression of surprise at the verdict, which was predicated on the belief that no wounds had been inflicted, and it had the unavoidable effect of drawiug from the foreman of the jury the declaration that they intended to find the accused guilty of the next highest grade of offense after that charged in the indictment.

Under our law, the trial Judge is expressly forbidden from using any expression tending to influence the decision of the jury ou the facts. R. S., Section 1963.

The second verdict returned by the jury'was the direct result of the Judge’s question and actions iu this connection. The first verdict of the jury was responsive to the charge, was not informal and presented none of the features which could justify the interference of the Judge with a view to its correction.

The bill of exceptions taken to the proceedings at this' stage of .the trial, shows that after the above recited declaration of tbe foreman of tbe jury, tbe Judge directed tbe clerk to poll tbe jury for the purpose of ascertaining their intention, and the jurors in open court were required to answer by stating when called whether this was their intention, as declared by tlieir foreman.

Such a proceeding was grossly irregular and presents the novel spectacle of a petit jury deliberating in the jury box, in open court, with the assistance of the Judge and of his clerk. I venture the assertion that no authority can be found in support of such a proceeding.

For those reasons I dissent from the decree rendered in this case and I think that the accused was entitled to a new trial.

Justice Todd'concurs in this opinion.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8691.
    Mrs. Magdalena Mayer vs. Louis Stahr. Hermann Pohlmann, Intervenor.
    The jurisdiction of this Court attaches to a suit in. which oue thousand dollars and interest and five per cent, attorney’s fees thereon are claimed. The fees do not grow out of the capital and are no interest thereon. They constitute a distinct item of indebtedness.
    An intervenor has no right to substitute himself to a defendant, and raise issues not set up by him * particularly, where he is a third possessor, acquiring real estate, mortgaged with the pact do non alienando, for the payment of a sum of money, and has legal notice of the mortgage and pact.
    Such intervenor cannot require security against the appearance of the lost mortgage note, where defendant did not ask the same.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. Tissot, J.

      Sambola & Duoros for Plaintiff and Appellee.

      Wm. D. Mills for the Intervenor and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action on a lost mortgage note for one thousand dollars, with eight per cent, interest since maturity and five per cent, attorney’s fees.

The defendant, who is the drawer and mortgagor, having failed to answer, a default was entered against him.

A party claiming to own the mortgaged property appeared in the suit, both by answer and petition of intervention, in which it is claimed :

1. That the property cannot be sold to satisfy the mortgage debt, unless security be given to guard against the appearance of the lost note.

2. That the attorney’s per centage cannot be demanded, because of an offer to pay the note in capital and interest, made previous to suit, provided the security was furnished.

The intervenor calls his vendor in warranty who, answering, denies all liability and any right of interference by the intervenor.

There was judgment rejecting the intervention and condemning the defendant to pay plaintiff’s claim, capital and interest and attorney’s fees, with costs of suit.

From this judgment the intervenor has appealed.

The plaintiff and appellee suggests want of jurisdiction in this Court over the matter at issue.

The claim is made up of two distinct amounts, each constituting a capital of itself: first, that of the note, which is one thousand dollars, with the accruing conventional interest thereon; and, second, that of the attorney’s fees, which cannot be less than fifty dollars. The interest grows from the capital of the note and is an accessory thereto. The fees do not grow from that capital, are no interest upon it, but constitute a distinct debt, created by contract, contingent upon the happening of an event, the case of non-payment at maturity of the debt secured by mortgage. 26 An. 61; 14 An. 35. The demand at the date of the institution of the suit exceeded one thousand dollars in capital, exclusive of interest. That fact settles the question of jurisdiction adversely to appellee.

On the Merits.

The record presents no issue whatever between the plaintiff and the defendant, who did not even answer and against whom a default was entered. The defendant did not therefore ask that the plaintiff be ordered to give security under the provisions of Article 2279 of the Civil Code.

On proper proof of the issuing of the note by the defendant, of the securing of the payment thereof by mortgage by him, with the clause de non alienando, of the loss and advertising of the same, of the continued acknowledgments, renewals and promises to pay by the defendant, the court condemned him to pay the note, with interest, and also the attorney’s fees mentioned in the mortgage act, which was duly and" seasonably recorded.

The only question which presents itself, after "all, is simply: whether the interveuor can substitute himself to the defendant and, in any form, either by answer or petition of intervention, set up defenses which the defendant, although cited, has not thought proper to raise.

The facts are, as to the intervenor, that the defendant, after mortgaging the property, transferred it to his wife, who next sold it to the intervenor, in whose act of purchase the mortgage now sought to be enforced is mentioned expressly, from the recitals of the accompanying certificate of mortgage.

It is well settled, as stated by the intervenor, that the third possessor of property mortgaged with the clause of de non alienando, has the same rights, no more, no less, against the mortgagee as are possessed by the original mortgagor; 4 An. 326; 2 An. 458; but it does not follow from that doctrine that where a mortgagor is cited and a personal judgment is asked against him for the debt secured and he refuses, by his silence, to ask security under the article cited, the third possessor, whom the mortgagee is authorized altogether to ignore, can set up such demand.

The third possessor, in the case before the Court, has made himself both a defeudant and an intervenor, praying for the relief already stated.

It is settled that, under the provisions of the Code of Practice, Art. 389, an intervenor cannot, without the consent of plaintiff, substitute himself in the place and stead of the defendant. 19 An. 462.

Indeed, an intervention is a demand by which a third person requests to be permitted to become a party to a suit between other persons, by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff, or, where his interest requires it, by opposing both.

A demand in intervention is but an accessory to the main action. 14 An. 427.

The intervenor cannot change the issue between the parties, plaintiff and defendant, and can raise no new one. His rights, on a proper interest being shown, are confined to joining or resisting either the plaintiff or the defendant, or to opposing both.

The intervenor in this case has done neither of these things. He raises a defense whicli the defendant has not made and calls in a party not connected with the suit by plaintiff against the defendant.

■ The case is particularly so when the intervenor himself shows that he stands in the lieu and stead of the defendant, who is his vendor’s author, by whose acts and admissions he is conclusively bound, by reason of the pact de non alienando. 18 L. 5; 7 An. 145; 12 An. 56; 22 An. 258; 32 An. 287; C. C. 2557.

The object of such a convention is to authorize the creditor to proceed against the debtor and the property as if no change of ownership had occurred, and without connecting the third possessor with the proceeding; 15 L. 268; 10 R. 54; 4 An. 325; 8 An. 58; 33 An. 217; R. S. 3188, 3180.

We find no error in tho judgment appealed from, which is affirmed with costs.

Rehearing refused.


author: Poché, J.

text:
    No. 8683.
    D. Bergamini vs. B. M. Bastian.
    The sale of a commercial establishment, together with the good-will thereof, does not preclude the vendor from the right of opening a similar establishment in the same vicinity within a short time after the sale, in the absence of an express understanding or stipulation, under which tho vendor had obligated himself not to engage in or pursue a similar business within a limited space or for a specified timo. G-ood-will is a proper subject of trade, bargain and sale? but in a sale of good-will, courts cannot imply tho additional contract or obligation not to do business on the part of tho vendor.
    This doctrine finds its support in authorities under the Civil Law as well as under the Common Law.
    APPEAL from the Civil District Court for the Parish of Orleans. Mom-oe, J.

      Wilkinson & Armstrong and Armand Filié for Plaintiff and Appellee:
    “ The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by equity, custom or law, is considered as incidental to the particular contract, or necessary to carry it into effect.” C. C. 1903,1901, 1943, 1963,1964, 1963, 2343.
    Warranty respecting the buyer’s peaceable possession of the good-will sold is of the nature of contract in the Civil Law of sale. And where the same is both implied and express, the vendor is obliged to maintain and keep the vendee in possession of the good-will as much as lies in his power, and afortiorari must do no act to disturb him in said possession. C. C. 2473, 2476, 2503, 2504; Pothier on Sale, “Warranty,” pp. 58 and 61; Trogel vs. Helmers, Civil District Court of Orleans, 1881; Journal du Palais, Bcpetoire G-énórale, verbo Achalandage, Ho.8; “Dumontvs. Auger,” Jurisprudence G-énérale du Boyaume, par Dalloz et Tournemine, auné 1825, Deuxiéme Partie, Cour Boyale, p. 92; Journal du Palais, Fond du Commerce, Ho. 15; 12 An. 541.

      “Good-Will” is of value, and can be bought and sold. C. C. 2443, 2449; 3 An. p. 17; 9 An. 294; 21 An. 391.
    “Such sales are very common contracts with us, and violate no law that we are aware of; the effect of such contracts on the public weal is too remote to be noticed.” Wintz vs. Vogt, 3 An. p. 17.
    Common law authorities are entirely inapplicable to the present cause, as the warranty res* pecfcing the buyer’s peaceable possession of the thing sold is unknown and foreign to t he common law. 3 An p. 17; Coke’s Littleton, Par. 102; Smith on Mercantile Law, pp. 264, 165.
    Eviction means the ousting or deprivation of a legal right, by the act either .of a third person or the vendor; the latter is not evon allowed to stipulate that lie'shall not be responsible for bis own personal acts. C. C. 2504 ; Pothier on Sale, 3To. 86; 13 La. An. 236.
    Where by the wilful acts of the veudor, through interest or bad faith, the vendee has been evicted or deprived of the totality or a part of the good-will purchased, thelatterhasaright not only to recover damages, propter non rem ipsam habitam, but also the loss of profits of which he has been deprived by the bad faith of the vendor. C. C. 2514; Demolombe, Vol. 24, !No. 582 et seq; C. C. 2516, 1934; Pothier on Sale, pp. 58 to 61, and authorities before quoted.
    The vendee has also the right to enjoin the further illegal interference by the vendor, with what is loft of the good-will sold. And if plaintiff’s claims for damages propter non rem ipsam habitam should be deemed inconsistent with bis prayer for an injunction restraining defendant from further illegal interference, such an objection should have been pleaded by exception in limine litis in the lower court. 8 An. R. p. 48, and French authorities before quoted.

      Aug. Bernau for Defendant and Appellant:
    1. A contract by which a person binds himself not to do business within certain limits and for a limited time is notin restraint of trade. 4 Daly 168 ST. V. Rep.; 53 Penn. St. 467; 59 Penn. 194; 78 Penn. 196; 9 An. 294 ; 3 An. 16.
    2. Such contracts must he express and cannot be implied, and must be reasonable and impose no general restraint, otherwise they are void. 19 Pick. 51; 13 Allen, 370; 53 Penn. St. 467; 59 Penn. 194; 78 Penn. 196; 4 Daley 168 Y. Rep.; 6 Henn. 384, MT. Y. Rep.; 3 S. C., 781 2¡T. Y.
    3. The sale of the “ good-will ” of a trade or business, in the absence of an express stipulation ‘ to the contrary, does not preclude the seller from setting up the same kind of business again in the same neighborhood, and he may generally advertise his new business and deal with former customers who voluntarily come to his new place, being simply restrained from resorting to deceptions and misrepresentations, calculated to implant in the patrons of his vendee the belief, that he is still carrying on the identical business sold to him. Smith’s Merc. Law, 252; Ohio Rep. 1857,1 D. 294, 296, 298; 5 Allen’s Rep. 345 ; Story on Partn. §100; 60 Penn. St. 458; 1 Pars. [Penn.J 478; 3 Browst. [Penn.] 133 ; 2 W. 23*. C. [Penn.] 697; 1 Rose, 123; 17 Ves. 346.
    4. In a suit against the vendor of the good-will of a business the general allegation: “ that posters and handbills advertising and parading the same have been printed and circulated by him or his agents and other practices successfully resorted to in order to attract his former customers to liis new establishment” [in the absence of a prohibitory clause,] displays no cause of actiou.

      J. JR,. Beckwith on the same side.
   The opinion of the Court was delivered by

Poché, J.

This is an action for damages for the alleged violation, of warranty by the vendor of an eating-house, together with the goodwill thereof, and grows out of the following facts taken from the record:

Ou the 17th of Jane, 1881, the defendant, Bastían, sold by notarial aot, for fifteen hundred dollars cash, to plaintiff, Bergamini, a coffee and pastry establishment” situated at No. 21 Boyal street, in this city, together with its contents and appurtenances, and “ together with the good-will thereof;” and the purchaser, being placed in immediate possession, proceeded at once to carry on the business of the concern.

On the fifth of November following, the defendant, Bastian, opened at Nos. 18 and 20 Boyal street a similar establishment, and announced it by handbills as the “ Mammoth Coffee Saloon and Dining Booms,” and has carried on that business from that time on to the day of the trial below.

Now plaintiff, after stating these facts, charges that by' opening his new establishment at the time and place mentioned, the defendant has violated his warranty under the sale, and has completely destroyed the good-will stipulated in the transfer.

He alleges that the establishment and its contents were worth only $500, and the good-will thereof being worth $1000 of the purchase price, he has therefore been virtually evicted through the acts in bad faith of defendant, who has in addition caused him damages in the sum of $500, for loss of profits, and he therefore prays for judgment against him in the sum of fiftéen hundred dollars.

His petition was filed in December, 1881.

The defendant excepted:

1. That the notarial act of sale contains no stipulation that defendant shall not engage in business.

2. That good-will is incapable of sale or ownership.

These and two other exceptions, not now insisted upon, having been overruled, he filed a general denial, followed by an admission to have opened business at 18 and 20 Boyal street, and urged other matters of defense.

We shall deal with the various defenses as amounting to a general denial, coupled with the admission above stated, and putting at issue all the material facts averred and the law relied upon by plaintiff.

This case was tried by a jury; and the defendant prosecutes this appeal from a verdict and judgment of five hundred dollars as damages. Plaintiff moves for an amendment of the judgment with a view to recover the full amount of his claim. The contention hinges upon the proper construction of the sale of June 17, 1881, and of the obligation of warranty on the part of the vendor, of the good-will of the establishment, as affected by his subsequent acts in opening a similar establishment in close proximity to that which he had sold to plaintiff.

■ Plaintiff contends that the legal obligation of the vendor to warrant the peaceable possession and enjoyment of the good-will necessarily implies the obligation not to enter into a similar line of business at a short distance from the other, calculated to draw customers from the concern which he had sold, and to thus destroy the good-will sold and warranted.

This construction is resisted by the defendant who urges that the vendor, under such circumstances, will not be held to have thus contracted not to enter into a similar business, in the absence of an express stipulation to that effect, and that a contract in restraint of trade cannot be presumed and enforced by the courts.

The issue thus presented has not yet been the subject of inquiry in our jurisprudence, and it therefore, presents a new question, of serious importance to commerce, to the solution of which we have bestowed unusual care, thought and study.

. The three cases quoted from our Reports do not involve the present issue, but the principles therein settled afford some assistance, in our present researches, and throw some light on the subject of this controversy.

They settle the principle that good-will can be the subject of a sale in commercial contracts, and that the clause in an act of sale by which the vendor binds himself not to pursue the same trade or business as that which he sells, within a specified limit and for a specified time, is not invalid as being in restraint of trade, and can be enforced by the courts.

Such was the issue presented, and such was the adjudication made in the cases of Wintz vs. Vogt, 3 An. 16, and Verges vs. Forshee et al., 9 An. 294. The decision in the case of the Succession of Jean Tourné, 21 An. 391, defined the meaning in law of the term “ good-will,” and re-affirmed the doctrine that it was a legal subject of trade, and bargain and sale.

The term has been defined by several authors, whose definitions, although varied in terms, all approximate to the same meaning. The following definition by Judge Story commends itself for its clearness and vast comprehension: “ Good-will is the advantage or benefit which is acquired by an establishment, beyond the mere value of the capital, stock, funds or other property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, op account of its local position or common celebrity or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.”

By the French authorities, by whom it.is known as “ achalandage,” it is held to be “la reunion Active des practiques ou ehalands qui achétent habituellement chez uu marchand ou dans une maison de commerce.”

Tins definition, although more condensed or slightly more restricted, conveys the main idea which prevails in Judge Story’s.

Proceeding now to define the good-will of the establishment which Bastían sold to Bergamini, we find from, the record that the business which Bastían had been engaged in for about eighteen months or more, consisted of a saloon where refreshments, consisting of liquids and food, were sold at reduced prices, comparing witli other lunch houses or restaurants, with a run of custom depending mainly ou the proprietors and employees of adjoining gambling houses, and of other customers drawn to it by its central position and by the superior quality of the milk and of the pastry therein served at all hours, and with neatness and punctuality. The house bore no outward sign or trademark, and did not even contain the name of its owner on the outside. The only means used as an attractive sign was a blackboard containing in large letters a list of the dishes and other articles served daily and the prices thereof.

The evidence fails to show that tire name of Bastían, the owner, or his peculiar style of running the house, or his renowned skill as a host of repute, contributed to the popularity of the establishment, or served to attract an exceptional run of customers.

We therefore understand that the good-will of the establishment, ■which was contemplated in the sale from Bastían, was the advantage or benefit, beyond the mere value of the lease of the premises, of the appurtenances and other movable property, such as furniture, crockery-ware, etc., which the establishment had acquired by the run of customers which had been in the habit of drinking and eating at that place, to which they had been drawn on account of its central position, or of its proximity-to such customers’ places of business or residence, and on account of the style and manner of the service, and of the quality and price of the refreshments therein dealt out.

As we have stated above, there is no dispute as to the delivery of all the things that were sold, but the complaint is that the vendor has violated the obligations of his warranty of the good-will—by opening in the vicinity, a short time after the sale, a similar business, to which he attracted the customers of the Bergamini establishment.

Plaintiff contends, and it cannot be disputed, that the vendor’s obligation of warranty must be measured under the provisions of the civil and not of the common law, and hence, he argues that the vendor’s obligation of warranty is violated by any act of his which tends to disturb his vendee in the peaceable possession of the property or thing sold by such vendor.

To that extent, we clearly assent to plaintiff’s theory, which finds unqualified support in ourlawaswe.il as in our jurisprudence. But when lie goes further, and seeks to construe the act of a vendor of an establishment, together with the good-will thereof, in opening a short time after the sale and in the same vicinity a similar establishment, as an act tending to disturb his vendee in the peaceable possession of the “ good-will ” transferred by said vendor, who had not bound himself not to resume business in the manner complained of, we cannot follow him and we must pause, as Bastian’s name did not figure as a sign to the house, as he used no distinguishing name or trade-mark for the business, and as his personal skill or reputation as a specialist was not the attraction of the custom ; we are safe, in the conclusion, that none of these elements entered in the good-will” contemplated by the parties in the transaction ; and that in the language of our prer decessors in the caso of Tourné, (21 An. 391): “ It is not exclusively to the. person that what is termed the. good-will is attached, but it is chiefly to the place.”

Hence, we must hold that in opening a similar establishment at Nos. 18 and 20 Royal street, and in soliciting custom from the public and from his old patrons, by means of circulated handbills and by the usual modes of advertisement, he committed no act tending directly or necessarily to disturb the establishment situated at 21 Royal street, from its peaceable possession and enjoyment of the custom which had patronized that establishment previous to and since the 17th of June, 1881.

Plaintiff complains particularly of the appeal made by Bastían in his handbills, some of which had been distributed in the saloon at No. 21 Royal street, “ to his old patrons,” and he naturally concludes that this, expression had a direct, if not an exclusive reference to the customers secui'ed by Bastían at the time that he sold to plaintiff.

But the evidence shows that Bastían had been engaged in this line of business for upwards of twenty-five years, and that lie had successively kept four or five similar establishments in this city ; and hence, he must have had many other “ old patrons ” besides those who had dealt at No. 21 Royal street.

Holding, as we do, that he was not in the least precluded by any stipulation in his contract with plaintiff from resuming the business of saloon and lunch house in any portion of this city, we must recognize his right to resort to ordinary means of advertising his business, and to other modes of soliciting patronage or custom ; and the evidence which we have read carefully and considered materially, fails to show that he directed his efforts to draw custom from Bergamini more than from any other dealer in the same line of business. It is in evidence that since June, 1881, several similar establishments have been opened in the same block, one of which is immediately adjoining plaintiff’s, and the conclusion that the shrinkage in plaintiff’s business is to be attributed to natural chances of trade and to the consequences of increased competition, more than to any act of the defendant, is not only reasonable, but is supported by the evidence and by all the equities of the ease.

In support of his theory, plaintiff invokes the particular construction of such contracts which he claims to have prevailed in civil law jurisprudence, and he firmly repudiates any and all common law authorities on the subject. A careful examination of the authorities under both systoms has disclosed to our minds the fact, that on the point which we are now discussing there is no material difference between the decisions of the civil law and of the common law courts. The shade of difference between the two lines of authorities is on the question of the binding effect of contracts under which a party stipulates not to pursue a particular line of business, on which point the common law authorities have a tendency to discountenance such contracts as in restraint of trade, and as tending to foster dangerous monopolies, while the civil law authorities seem to tend towards the binding effect of all such contracts or stipulations. But on the proposition, which we maintain in this opinion, that the vendor of an establishment, with the good-will, does not preclude himself from resuming business in the same line, in the same place or vicinity, and a short time after the sale, in the absence of an express understanding or stipulation to that effect, we find ample support from decisions and respectable authorities under both systems. Crutwell vs. Lye, 17 Vesey R. High Court Chan.; Bassett et al. vs. Percival, 5 Allen, 345.

In our researches among French authorities, we find that the Court of Cassation, in the case of Boultier, on appeal from Angers, reported in “Journal du Palais” for 1870, p. 89, held’: “He who sells an establishment with the good-will thereto attached, will not be held by the simple fact of the sale, and in the absence of a special agreement, to have renounced or abandoned the right to 'open and carry on a similar establishment.” “ Celni qui vend un fonds de commerce avec l’aclialandage en dépendant n’est pas réputé par le fait seul de la vente et en l’abseuce de conventions spéciales, avoir renoncé au droit de fonder et d’exploiter un établissement semblable.”

We have given due consideration to the two cases quoted from the same tribunal by plaintiff’s counsel, and we do not think that they are applicable to the issue presented in this case.

The case of Anger vs. Dumont, decided in 1824, presented substantially the following facts :

In insolvency, the business of Anger, a chocolate manufacturer, had been sold to Dumont, who at once opened his business as “ Dumont, successor of Auger,” keeping the same sign and trade-mark on the front of the house as the furnisher of chocolate to the Courts of France, Austria and Russia, with the arms of each of those nations emblazoned on the sign. In addition, Auger engaged his services as an employee of Dumont, joining in a circular of Dumont, in which the customers of Auger were informed of the latter’s new engagement. In the course of events he left Dumont, and proceeded to open a chocolate establishment of his own in the same vicinity, to which he attached the same trade-mark, advertisement and arms of the several countries, and he issued circulars denouncing that Dumont was not his successor.

The Court of Cassation held that such acts were an infringement of the good-will transferred to Dumont, but no such facts are disclosed by the record in this case.

The case of Coche vs. May, decided in 1836, turned upon the construction of the sale of a coffee-house, with the good-will, and with the avowed intention by the vendor of going into the business of brewery, and said vendor, within a short time thereafter, refitted and opened a similar establishment or coffee-house in the immediate vicinity.

The difference of the issue in these two cases and the present suit is too striking for further comment. Our conclusion is, therefore, that the verdict and judgment appealed from are erroneous.

Under these views, we. find no necessity of passing upon the injunction prayed for by plaintiff for the purpose of restraining defendant in the pursuit of his new business, as well as upon other issues presented by the pleadings.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside and that the judgment of the lower court be annulled, avoided and reversed; and it is now ordered that plaintiff’s demand be rejected and his suit dismissed at his costs in both Courts.

Rehearing refused.


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

text:
    No. 6677.
    The State of Louisiana ex rel. The Mississippi & Mexican Gulf Ship Canal Company vs. The City of New Orleans et al.
    In case of mandamus against public officers in Louisiana, the proceeding does notábate by tlie retirement from office of such officers.
    A mandamus does not lie against the City of íTow Orleans, to compel the budgeting of a judgment which is a nullity on its face.
    APPEAL from the Superior District Court, for the Parish of Orleans. Lynch, J.

      Lacey & Butler for the Relators and Appellees.

      Sami. P.- Blane, Assistant City Attorney, and G. F. Buck, City Attorney, for the Respondents and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The relators, claiming to be judgment creditors of the City of New Orleans, took this appeal from a judgment of the Third District Court'of said City, refusing a mandamus applied for against the Mayor and Administrators of the City, to compel them to register and pay plaintiffs’ judgments in the manner prescribed by the City ordinances.

' The transcript was filed in this Court on tho 24th of May, 1877.

On the 4th of November, 1880, the relators representing that the several defendants against whom the writ was directed no longer held the offices of Mayor and Administrators, filled by them at the time tlie writ issued, and denying tlie right of this Court to substitute the present incumbents of the offices in place of the defendants, moved the Court to declare tlie proceedings abated and dismiss them, without prejudice to relators’ right to renew the mandamus against other parties.

This motion is opposed by the attorney representing the City.

The question presented by tlie motion is the only one we have to consider.

The relators contend that tlie mandamus necessarily abated on the retirement from the offices mentioned of the persons who then occupied them; and they further insist that this court is without jurisdiction to substitute the present incumbents of these offices as parties.

The sole authority relied upon by the relators’ counsel in support of their motion is the case of the United States vs. Boutwell, 17 Wallace, 607.

Upon an examination of that case, we find that the ruling relied on was made, as declared by the Court, under the provisions of the Statute of 9th Anne, chapter 20, Sec. 1, which was in force in the State of Maryland when the District of Columbia was part of that State, and hence, was in force in the District when the decision referred to was rendered. The Court, by the terms of its opinion, confine the effect of the decision to the District of Columbia, for it says, quoting the language of the decision :

“ Therefore, whatever may he the rule elsewhere, here a writ of mandamus must abate whenever the performance by the defendant of the personal duty it seeks to enforce lias become impossible.”

In the same decision the Court goes on to declare that the statute under which its ruling was made had been altered in England, and that a change in the officials no longer operated as an abatement of the proceeding.

. This latter view of the subject, has been expressly sanctioned by1 many decisions of the State Courts. 15 Wis. 30; 65 N. C. 114; 2 Met. (Ky.) 56, 63, 71, 18; B. Mon. (Ky.) 7, 13.

■ And it is in accord with the doctrine laid down by writers who are held in the highest respect, and whose works are quoted as authority on the subject. Dillon on Corporations, 700, 701, 703 ; Willcock, 389',

A fair construction of the Articles of the Code of Practice on the subject of mandamus, which must govern the proceedings by this writ in this State, warrants the conclusion contended by the defendants in this case that the change of officers did not effect an abatement of the proceeding.

In the case of the State ex rel. Barbin vs. Secretary of State, 32 An. 579, we had occasion to show, upon the authority of prior decisions of this Court, that the writ of mandamus, as provided by our Code,, was broader in its scope and intendment than under the common law, and was not to be authoritatively construed by the adjudications under that system.

We might infer from the proceedings in this ease, that the views of the relators’ counsel were at one time in harmony with these views. After the judgment of the lower court was rendered, but before any appeal was applied for, the change of officials took place. If this, change operated as an abatement of the proceeding, that abatement took place simultaneously With the change of incumbents. Such abatement, had it resulted from the event mentioned would, of itself, have rendered inoperative the judgment of the lower court refusing the mandamus, and no appeal from such judgment would have been necessary. . Yet we find that it was nearly a year after this change of officials that the appeal was applied for and taken. . .

; Lastly, it is urged that, thebfficials having.gone-out of office, against whom the writ was originally directed, this Court is without authority to make the present incumbents of these offices parties; that such action would involve the exercise of original jurisdiction.

It must be understood that this writ was directed against the Mayor and Administrators of the City of New Orleans, the names of the incumbents of these offices not being known or mentioned in the proceeding. In such a case it might be reasonably held that the proceeding was essentially against the corporation, as our system of practice, expressly authorizes; and in such case there is high authority for the doctrine that there is no necessity for making new parties to meet changes that may occur in the officials of a corporation; but that the incumbents who represent the corporation when the final judgment is rendered are equally subject to the decree, as would be the parties who filled the offices when the writ issued, had they still remained in office.

See authorities above cited.

But it is not necessary to decide this point; for if it should be necessary in this case to make new parties, we have no doubt of our authority to make the necessary orders therefor in aid of our appellate jurisdiction, under the express provision of Article 877, C. P., which declares, that the Supreme Court, as well as other courts, possesses the powers which are necessary for the exercise of the jurisdiction given to it by law.” And that they can exercise this power in the exigency presented by this case is the settled jurisprudence of this State. Planter’s Bank, 2 An. 430; H. D. vol 1, pp. 68, 69.

The motion to dismiss the proceeding and declare the same abated is, therefore, denied.

Bermudez, C. J.

This is a proceeding for a mandamus to compel the City of New Orleans to budget and, by diverse processes, to pay a judgment claimed to have been legally rendered on March 20th, 1873, in favor of the relators against the City for $65,956.75, with 10 per cent. $6,595.65 and interest, the consideration whereof was a drainage-assessment of two mills per superficial foot on lands owned by the City within the Fourth Drainage District.

Numerous defenses were set up by the defendants, among which the invalidity of the judgment.

There was judgment for defendants refusing the mandamus, and the relators have appealed.

In the matter of the Succession of Patrick Irwin, 33 An. 63, the validity of this very judgment was inquired into and passed upon.

' It was declared to have been rendered without warrant of law and to be null and void as against the Succession of Irwin. This ruling in the subsequently decided case of Delavigne, 34 An. 97, was affirmed. We have no reason to question the correctness of the views thus announced.

The judgment propounded upon by the relators being a nullity, its payment by the City can be enforced neither directly nor indirectly.

Judgment affirmed.


author: Fenner, J.

text:
    No. 8714.
    The State of Louisiana vs. Adolphe Claude et al.
    Art. 117 ofthe Constitution and Act 77 of 1880 contain nothing inconsistent with previously-existing laws authorizing District Judges to call special jury terms; and the latter, therefore, are not repealed.
    Where, in calling such a term, the Judge lias complied with all the duties imposed on him by the law, the partial failure by the clerk to perform all the duties imposed on him, with reference to giving notice, will notinvalidate the term, under the circumstances disclosed in this case.
    Where the Judge was appointed to fill a vacancy during the recess of the senate, and then appoints jury commissioners, his subsequent confirmation by the senate and taking anew oath, does not create such a new term as vacates the offices of the jury commissioners and requires a new appointment.
    Act 44 of 1877 conferring on clerks the ex’ojjleio duty of acting as jury commissioners, is not repealed by Art. 322 of the Constitution, or Acts 106 of 1880 and 43 of 1882.
    Evidence as to the dangerous or vicious character of deceased is not admissible unless the proof previously administered has laid the legal foundation for the admission thereof, which, under the statements of facts made by the Judge in the bill of exceptions, has not been done in this case.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Olegg, J.

      J. G. Bgan, Attorney General, and. Jos. A. Ghargois, District Attorney, for the State, Appellee.

      G. Debaillon and O. U. Monton for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The indictment of defendants for murder was presented at and during a “ special jury term " called and held by the Judge of the court.

On the first day of the term, motion was made by defendants to quash the venire of jurors, the denial of which motion is one of the errors now assigned. The grounds of the motion will he stated and determined consecutively:

1. That nnder the existing Constitution and law of the State, Díst trict Judges have no power to call special jury terms.

Article 117 of the Constitution of 1379 contains nothing inconsistent with pre-existing laws,- or prohibitive of subsequent legislation, authorizing District Judges to hold adjourned or special terms of their courts, when found necessary, and to summon juries to attend the same and to transact business civil or criminal thereat.

Art. 117 evidently regulates only the regular terms of the courts by providing the least number of terms and the least number of jury terms which shall be held, and by directing that, until provided by law, such terms shall be fixed by rule of court not to be changed without thirty days’ notice. None of its provisions forbid, expressly or by implication, the holding of necessary special terms according to laws then or thereafter in existence. Considerations of importance to the State and to accused persons enforce the necessity for the existence of such power—as in the cases suggested of illness of the Judge at the regular term, or of overflow of the parish at the same period, or of failure of a jury at the regular term for any cause—in all which cases, the necessity of waiting till the next regular term would entail grievous injury as well to the interests of justice as to the rights of accused to a speedy trial. We should not lightly infer an intention in the Constitution to abrogate so conservative a power; and certainly no such intention is expressed in the instrument; nor in the provisions of Act No. 77 of 3880, which likewise deals exclusively with regular terms of the District Court, except in the proviso to Section 5 thereof, which declares that the District Judges may provide for other jury terms in any parish when, in their discretion, it may be required.” The objection that this proviso is not covered by the title of the Act, is evidently unfounded, and it is a legislative recognition of the power to call special jury terms.

2. It is next contended that, admitting the power to call special terms, yet this particular term was not called according to law and was, therefore, an illegal term. This objection is of the most radical character, attacking the jurisdiction and power of the Judge to perform any judicial functions at such a term and, if sustained, would strike with nullity all' his proceedings.

Section .1931 of the Revised Statutes confers upon the District Judges the broad authority to hold special terms, whenever they may find it necessary.”

Section 1932 declares: Whenever a special term of the court shall be ordered, the Judge ordering the same shall notify the clerk of the court, and he shall give notice thereof by publication in one or more newspapers published in the parish where the court is to be held, if there be one; and by notice posted on the door of the courthouse, at least thirty days before the commencement of the term.”

This Section provides for two classes of duties, one to be performed by the Judge, the other by the clerk.

In this case the Judge, vested, as we have seen, with unquestioned authority to call the special term, performed every duty imposed on him. His order was made in open court, at a regular term, and in ample time and in conformity with every legal requirement, and it contained the express direction to the clerk “ to enter of record this order, and to give public notice of the same in the manner required by law for the period of thirty days from this date and before the 14th day of March, 1882.”

The clerk substantially complied with the requirement of notice by publication in the newspaper of the parish, but neglected to post the notice on the courthouse door.

The question is, whether the right of the Judge to hold the special term, called by him in the exercise of express statutory authority, and after compliance with every duty imposed on him, can be defeated by failure of the clerk to perform a duty in connection therewith imposed by law upon him.

If so, it would give the clerk the extraordinary power of nullifying the authority vested by the law in the Judge and of preventing the holding of any special term.

Such a doctrine cannot receive our assent.

The question is not entirely new. It arose in a case before the Supreme Court of Mississippi, from which we quote:

“By the 22d Section of the Act to establish the criminal court of this State, it is provided that, whenever it shall be deemed necessary, the Judge of said court may hold special terms upon giving twenty days’ notice thereof. The question of the necessity and propriety of directing a special term is thus referred entirely to the discretion of the Judge. * * The twenty days’ notice of the holding of any such special term is required for the information of those who may have causes or business in the same, but it is not necessary to confer jurisdiction. In this respect, the act is merely directory.” Friar vs. The State, 3 How. (Miss.) 422.

In a case in Kentucky, the statute was the following: “ When the business requires it, a Circuit Judge may hold a special term in any county in his district. If the order be made in vacation for a special term, notice thereof shall be posted up at the courthouse door, ten days before its commencement.” The Court said : “ The constructive object of such notice decides the question of jurisdiction. Did the legislature intend the ten days’ notice should be indispensable to the jurisdiction, or, in other words, a fundamental condition of the validity of the proeeedings of the called term, or intend only that the requisition of the notice should be merely directory or precautionary? It seems to us, that the latter was the sole purpose.” The Court proceeds to discuss the question and maintain its conclusion at length. Blimm vs. Commonwealth, 7 Bush, 320.

It will be observed, that both the cases quoted were criminal, and that the duty neglected was one imposed on the Judge himself. Had such been the case here, we should have hesitated to adopt the conclusions of those courts, and weighty authority to the contrary exists. But considering that here the Judge did everything required of him, and that the omitted duty was one imposed on the clerk alone, we feel fully justified in holding that its omission did not invalidate the call or destroy the jurisdiction at the term, especially as the failure of notice was partial only, and as the complaint of its sufficiency is purely technical, unsupported by any suggestion of actual injury.

3. The next objection is levelled at the capacity of the jury commissioners, because their appointment had not been made by the Judge during his then current term. The Judge was originally appointed and commissioned by the Governor to fill a vacancy during a recess of the legislature. He then qualified and appointed the jury commissioners, who duly accepted. He has held the office of Judge ever since. The fact that his appointment was subsequently sent to and confirmed by the senate, did not necessitate a reappointment of commissioners, who had been appointed by himself, to hold office during his pleasure.

4. It is urged that under the present Constitution, Art.. 122, and subsequent legislative acts, clerks of court have no longer power or authority to act ex-offieio as jury commissioners. The proposition is groundless. Act 44 of 1877, conferring this duty upon clerks, is not inconsistent with any.provision of the Constitution or of Acts 106 of 1880 and 43 of 1882 and, therefore, is not repealed by them. Our reasons for this conclusion are apparent from the face of the provisions of law referred to, and need no enforcement.

We have carefully examined the several bills of exceptions to the ■rulings of the Court in the course of the trial.

Only one is argued here, to the ruling of the court, excluding evidence of the bad and dangerous character of the deceased. If we were to accept the statement of facts proved as a foundation for the evidence made by counsel in his bill, the exception would be sound. But the Judge, in his own statement embodied in the bill, denies the correctness of that statement, and makes one radically different, which we are bound to accept and which leaves no possible foundation for the introduction of such evidence. From that statement it appears that there had been no proof of any assault or hostile demonstration by deceased at the time of the killing, or of any circumstances establishing the status of accused as acting in his right or under belief that he was in danger of death or grievous bodily harm. Proof of this nature is essential to establish an exception to the general rule, that evidence of the character of deceased is inadmissible. Wharton Cr. Law, §641.

We discover no error in any of the rulings of the Judge.

Judgment affirmed.

Rehearing refused.


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

text:
    Nos. 8681 and 8718.
    The State of Louisiana ex rel. Woodward, Sheriff, vs. W. C. Chapman; The State of Louisiana vs. L. E. Generelly.
    Revenue Act 4, Sec. 12, p. 90, 2d Ex. Sees, of 1881 is constitutional. Persons employed by a principal who has paid his license, and who do no business on their personal account, whose services, rendered within the State, are exclusively devoted to and enumerated by such principal, are “ clerks ” within the immunity of Article 206 of the Constitution, and therefore exempt from paying the license exacted from “ travelling agents ” under the said Act.
    APPEALS from the Justice Ward’s Court, Fifth Ward, Parish of East Feliciana. And from the Fourth City Court of New Orleans.

      John McEnery and IF. B. Sommerville for Plaintiff and Appellee.

      Sami. P. Blanc and I. 3. Stauffer, Jr. for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

These cases present the same question, and were argued and submitted together. The defendant in each case is an employee of Stauffer, Macready & Co. of New Orleans, and the object of t-lie suits is the collection of fifty dollars from each of the defendants for license tax as a travelling agent of that firm. The law imposing this tax reads:

All travelling agents of this or other States or countries, offering any species of merchandise for sale, or selling the same, shall, if representing one house, firm or business, pay a license of fifty dollars per annum. If representing two houses, firms or business, shall pay a license of seventy-five dollars per annum.” Acts 1881, 2 Ex. Sess., p.

The proceedings were summary under Secs. 12 and 17 of that Act, and exception was made to them for unconstitutionality because the title of the Act does not express that mode of remedy as its object. The title is, “ an Act to levy, collect, and enforce payment of an annual license upon all' persons * * pursuing any * * vocation, calling or business, except,” etc.

This covers any mode of enforcing payment whether summary or otherwise. The title of an Act can only indicate the general subject of the law by some concise expression, sufficient to indicate the chief matter, to which the details in the body of the Act are auxiliary. The design of the constitutional provision is to prevent the legislature uniting in one Act objects which have no necessary or natural connection with each other. It cannot be said that the imposition of a tax and the provision to enforce its payment have no necessary or natural connection. Municipality vs. Michoud, 8 Ann. 605; Stale vs. Waples, 12 Ann. 343; Slack vs, Ray, 26 Ann. 675; Shreveport vs. Jones, Idem, 708.

The constitutionality of Secs. 12 and 13 is attacked on the ground that the license is not graduated, and that the latter section has a separate object, distinct from the other parts of the Act, viz: conferring on municipal and parochial bodies the right to. impose license taxes on any business or profession. This provision does not affect either of the defendants. No municipal or parochial tax is demanded of either of them. It will be time enough to consider the unconstitutionality of that section when a defendant, who is affected by it, shall present the question. If that section be null, the other parts of the Act are not thereby invalidated. Williams vs. Payson, 14 Ann. 7; Moore vs. New Orleans, 32 Ann. 726.

The Constitution, Art. 206, does not prescribe any mode of graduating a license tax. On the contrary, it authorizes different modes in certain cases. Art. 217. The mode adoptod must necessarily be practicable. The defendant, as the record shews, does not keep books from which the amount of his sales can be ascertained, and the imposition of a specific sum—fifty dollars, if he represents one house, seventy-five dollars if he represents two or more—is the only practicable mode, and is a compliance with the constitutional requirement. Peddlers and transient dealers are commonly taxed a specific sum by the year because they are likely to escape any other. Cooley’s Taxation, 390.

- The legality of the tax is contested on the ground that the defendant is a clerk, and therefore exempt, Const. Art. 206, and that his employers have paid all the licenses required of them, and cannot legally be compelled to pay another through him. These employers exhibit receipts for their licenses, and it is uncontested that the defendant is employed, at a regular stated monthly salai'y. In each case the defendant has sold goods outside of New Orleans as travelling salesman for his firm.

Sundry definitions of clerk are given us. The word, as designating an occupation or business, must be understood in its ordinary acceptation, and that is, not a writer or one performing clerical functions only, but a salesman in a store or shop as well. The Act in question uses it in this latter sense.

The business of travelling agent is quite distinct from that of clerk. It has sprung up in comparatively recent times, and is one of the recognized needs of modern trade. The English call such person a commercial traveller, the French commis voyageur. Americans, with characteristic aptitude for nomenclature, call him a drummer.

The defendant travels through the country, solicits orders, sells goods, by sample or otherwise, transmits the orders to his employers who fill them as he has agreed. If one were asked to say what sort of business was that of drummer, he would describe it in this, or other language of like import. The real question then is, not whether a clerk is eo nomine exempt from license tax, for of that there can be no doubt, but whether the tax on a drummer can be evaded by his calling himself clerk, and accepting a fixed salary instead of commissions on sales, or other varying compensation. It does not appear what is the usual mode of paying drummers, and we apprehend there is not an invariable mode. The business of clerk is not distinguishable from that of drummer by the manner of compensation.

The counsel for the defendant argue that a firm might send letters out to accomplish the increase of trade which is done by an employee such as the defendant, and that he is only an animated letter.” A sufficient answer is that the legislature have imposed a license tax on these animated letters ” under the name of travelling agents. A firm, if it so please, can rely on correspondence alone for enlarging its business, but if it adopts this modern method of drumming as the more effective, the drummer becomes liable for the tax. It is his business that is taxed, and the business is so peculiar and distinctive that it cannot be mistaken for that of clerk. No one seeking employment from a firm as drummer would ever think of saying he wanted to be clerk, and vice versa. Every business man would understand instantly, if employment as a clerk was sought, that the applicant was not offering to travel and solicit orders, as the defendant does; and if he was employed as clerk, and his employers change him into a drummer, and he serves them as drummer, he becomes liable for the tax upon that occupation.

The judgments are affirmed.

Disserting Opinion.

Fenner, J.

I cannot assent to the opinion and decree herein.

Under Article 206 of the Constitution, “clerks” are expressly exempted from liability to a license tax.

From the admissions in the record it appears that defendant is an employee of Stauffer, Macready & Co., at a regular monthly salary, and having, no other business or employment; that his duties consist in selling goods in and out of the store, in taking care of stock, in filling orders and performing other clerical duties, acting as a travelling salesman, selling goods in the State, in and out of the City of New Orleans, and soliciting orders throughout the State for said firm.

■ It is fairly and distinctly inferable that he is employed by the firm as a salesman generally, obeying the orders of his employers,.selling in the store or out of the store, in the City or out of the City, as they direct.

Such an employee is a “clerk” within the intendment of the Constitution.

Webster defines a cleric as “ an assistant in a shop or store, who sells goods, keeps accounts, etc.”

Worcester defines it to be one employed as an assistant in a public or private office j a subordinate or an assistant in the store or shop of a retail trader.”

Bouvier defines it, “ a person in the employ of a merchant who attends only to apart of his business, while the merchant himself superintends the whole.”

This Court held that one employed by another to travel throughout the State,' procuring information for maps, getting subscribers and selling maps,' etc., and who received a regular salary, was a cleric. Colley vs. Labourette, 7 An. 222.

The obvious intention of the Constitution was to recognize the fact that persons pursuing business and callings and paying license for such privilege, had need of assistants or clerks to aid them in their business, and to distinguish between such principal and their assistants and to exempt the latter from license taxation.

Stauffer, Macready & Co. held unqualified licenses from the State to pursue the occupations of wholesale and retail dealers, during the year 1882, for which they paid three hundred and twenty-five dollars.

So far as the State is concerned, they had the right to sell anywhere in the State, and to employ assistants in selling.

Such assistants, whose character as clerics, while selling goods in the store, would be disputed by no one, do not lose that character when, ^ in obedience to the orders of their principals, they go to sell in the country, Such selling is not the selling of the clerk, but the selling of Stauffer, Maoreacly & Co., who have already been licensed by the State so to sell, and have paid for that privilege.

The legislature, denied by the Constitution the right to impose a license tax upon such a clerk, cannot acquire that right by simply calling him a travelling agent.”

Every clerk is necessarily an agent; hut there exists a large class of agents who are not clerks, and who are, therefore, taxable. Such are the various kinds of factors, brokers, and dealers on commission, insurance agents, etc., persons whose business and whose time are their own, who labor at their own will, under their own control, and whose pay is measured by the efficiency and extent of their work. Such agents, whether dealing in the goods of one or of several firms, are not clerks and are taxable.

But the employee who hires his time for a fixed salary to his principal, whose whole time belongs to that principal, whose duties consist in performing under orders the business which that principal is licensed to do, is a clerk and not taxable.

Perhaps the travelling salesman of an unlicensed firm, whether resident or non-resident, however paid and however employed, would stand on a different footing, because as his principals would have no right to sell without a license, he might be debarred, on familiar principles, from holding up their authority and orders as his protection.

As I am satisfied the legislature had no power to tax a clerk like the defendant, so I am equally clear that such was not the legislative intent.

The law did not design to handicap and paralyze the enterprise of licensed dealers by vexatious taxation on their salaried employees. Such an interpretation is hostile to the spirit of commerce and the policy of the State, which are to encourage our merchants, once licensed to do business, to reach out for trade in every direction, and not to make the four walls- of a store a dungeon within which their energies mnst wither and their trade rot and die away.

Poehé, J., concurs in this opinion.

On Rehearing.

The opinion of the Court was delivered by

Bermudez, C. J.

The employment of a person exclusively by another at a fixed salary, is not the test to ho applied to determine whether such persou is or not a cleric,” within the meaning of Article 206 of the Coustitution.

A bookkeeper is certainly a cleric, yet one may be the bookkeeper of more than one patron or employer.

Clerks are not invariably remunerated by a fixed salary. Some are compensated by a percentage on the amount of business wliicli they do for their patron, and even are allowed to participate in the profits of the concern.

Clerks are no doubt agents, but their powers are brief and are generally restricted to the local business stand. Travelling agents are not clerks, for they go out and do business outside of the stand, beyond the limits of a citjr or parish, even of a State, in which their principals have their establishments. Because a travelling agent does business for one person or firm only and for a fixed compensation, he does not thereb3T become a clerk. ■ If he were not on that account, then a travel-ling agent doing business for several persons or firms, should be considered as a clerk for each and could never be made to pay the license to which the State intended to subject such agents, whether residents or not. Then again, .clerks could be travelling agents and travelling agents could be clerks.

There certainly exists a difference between the calling of a clerk and that of a travelling agent, which prevents the one from being the other at the same time, in relation to the same patron. The names or terms are not convertible.

It cannot he presumed that the legislature intended to exact a license from persons exempted from such by the organic law. The contrary should be assumed, that those only were intended to be taxed who were not exempt from taxation by the Constitution. It is clear that the legislature designed to discriminate between clerks and travelling agents.

The action and determination of the Court in Colley vs. Labourette, 7 An. 222, in which the plaintiff, employed by a maker and vendor of maps, in procuring information for his maps, getting subscribers and selling the. maps, etc., was treated as a clerk, is no guide for a proper definition of the work clerk. The Court guardedly said : His employments were much the aspect of agencies, but the District Court, the counsel of the parties and the witness to his original employment have regarded him as a clerk, and we see no sufficient reason to take a different view of his employment.”

The definitions contained in Webster and Bouvier, previously given, are correct as far as they go ; but are not sufficiently comprehensive.

In the investigation made of the merits of this case, little or no assistance was derived from the jurisprudence, within reach, of other States or England. Research was prosecuted further. That system was consulted successful^ from which ours emanates. There is found, what can be considered a full and complete definition of the word clerk, from a commercial standpoint:

“ En matiere commerciale lc commis proprement dit est tin véritable préposó d’un cominercant.” Diet. Gén. Raisonnó, Ed. Brux. 1836, verbo Commis, p. 162.

“ On distingue en outre habit,uellementparmi les commis proprement dits: les commis sódentaires qui exerceut leurs fonctions au siége ujéme de l’établissement auquel ils sont attaches et les commis voyageurs, qui parcoureut diverses provinces añn de faire des achats et des ventes pour le compte de la maison qui les cmploie. Toutefois l’expression commis se prend souvent dans un sens gónórique et s’applique a tous les préposés d’un cominercant. Tons les commis quelles que soient leurs fonctions sont les mandataires des commercants auxquels ils out loué leurs services.” Goujet & Merger, Dr. Com., verbo Commis, p. 134.

“ II (le commis) prend le nom de commis voyageur si au lieu d’etre préposé a un établissement, il est cliargé de vendre, acheter, prendre ou oft'rir des commissions.” Diet. Gén. Raisonné, verbo Commis, p. 162.

“ Un cominercant dont le commerce est ótenda et dótaillé, a nécessairement un grand nombre d’employés sous des noms divers, dont les plus conuus sont commis, caissiers, etc.” Pardessus, Dr. Com. vol. 1, p. 42.

“ Les appointements ou salaires des commis sont fixós a l’année, au mois, ou á la jouruée.”

“ Lorsqn’un cominercant au lien de donuer des appointements fixes á un de ses employés lui promet une part quelconque de ses bónéfices annuels, cc commis est locateur de ses services sans condition aléatoire.” Pardessus, Dr. Com., vol. 3. p. 4.

Le commis voyageur est le “ commis charge de reprósenter la maison de commerce qui l’emploie de vendre les inarchandises de cette maison, ou de faire des actes dont cette maison a besoin dans les lieux ou elle le fait voyager.

“Les commis voyageurs sont soumis aux méme régles que les mitres commis pour ce qui concerne leurs rapports avec leur patron ou avec les tiers.” Repertoire J.. P., verbo Commis Voyageur, p. 689; Goujet; & Merger, verbo C. V., pp. 139, 140.

“ Les commis agissent toujours au nom de leurs patrons et étant aux gages exclusifs des nógociants qui les emploient, different du courtier et du commissionnaire qui agissent en leur nom personnel et pour le compte de tous ceux quiveulent recourirá leurministére.” Pardessus, Dr. Com., vol. 1, No. 33; Goujet & Merger, verbo Commis, No. 8.

Prom all the foregoing authorities it clearly results, that a clerk can well be employed without ceasing to be such, as a travelling clerk, under the circumstances in which'the defendants have acted.

It is unnecessary that an express or formal authoritative definition of the word “ clerk” be now given. It is more prudent and, therefore, better to abstain therefrom, and simply to say that the defendants are clerks within the meaning of the commercial law, and that as they represent employers who have paid their license, they are shielded from taxation under the shape of a license on them as travelling agents.

A different interpretation of the word “ cleric” in the Constitution, and of the words travelling agents” in the Revenue Statute, would lead to hardships which certainly were not in legislative contemplation when the law ivas adopted, viz: in requiring from a travelling clerk a license, when one had already been paid by his employer or principal, who, if himself travelling, would have to pay no other, and in exacting from such resident employee a license for each parish, while the non-resident agent would be demanded one only, for the same amount, and be authorized to operate in every parish throughout the State.

With such hardships we have strictly, however, nothing to do. We are well mindful of the wise provision of the Code, that the dictinction of laws into odious laws and laws entitled to favor, with a view of narrowing or extending their construction, cannot be made by those whose duty it is to interpret .them.

Travelling clerks are not travelling agents, in the sense of Act No. 4 of 1881.

Before concluding, we think it is our duty to say that we are satisfied that the words “ travelling agent” were inserted in the revenue law in question to obviate a fatal discrimination which we ourselves had found to exist and which provoked our decision in McGuire vs. Parker, rejmrted in 32 An. p. 832.

We add, that we adhere to our previous opinion in the present suit, so far as it declares the Act constitutional.

Our interpretation of that word in the present case is far from writing it out of the revenue law. We have only expounded its meaning, purport and object, leaving it, as' inserted in the statute, altogether untouched.

.The words “ travelling agent,” found in the law in question, were intended to apply, not to travelling clerks, but to all commercial agents, brokers, or intermediaries, residents or not, who do business as general agents on their own account; who negotiate matters for whoever employs them; whose services are not devoted exclusively to the interest of anyone in particular; who may act as the common ’mandatory of two or more parties, and who receives such compensation as may be agreed upon.

Persons who represent parties who have not paid a license, though they might be otherwise classed as “clerics'1'1 would not, however, be permitted to set up such capacity to resist payment of a license as travelling agent, because they would be engaged in doing, without a license, that which their principals could have no right to do without such license. Such agency could be, in such a case, no protection to them. R. C. C. 3016; Pardessus Dr. Com. vol. 1, p. 38; Goujet & Merger, verbo Commis Voyageur, No. 8.

It is, therefore, ordered that the decree herein previously made be set aside and that the judgments appealed from be reversed, and that judgment be now rendered in favor of the defendants in each case, with costs in both Courts.

Justices Poché and Fenner concur in the decree, for the reasons given in their original opinion and for the reasons stated in the present opinion, not inconsistent with the former.

Justices Todd and Manning dissent, adhering to their original opinion.


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    No. 8758.
    Madison Carroll et al. vs. C. Chaffe, Jr., Syndic.
    One claiming to be the lessee of real estate, ordered to be seized and sold, has no standing in court to arrest the sale and annul the order for executory proceedings. It will be time enough for him to set up his lease, if the same was duly recorded previous to the registry of the act of mortgage declared upon, when the property will have been sold and the adjudicate© will seek to evict or eject him.
    An injunction does not lie to test questions pending on an appeal from the judgment in the case in which the judgment is enjoined.
    A vende© and mortgagee, when sued on his note for the price, cannot champiou the rights, if any, of parties to whom he alleges that the payee has transferred it. On payment of the note sued on, he will exonerate himself from liability, and will he entitled to have the mortgage inscription securing the note cancelled from the mortgage register.
    An intervention or third opposition by on© who has obtained an order of seizure and sale to pay a note secured by vendor’s privilege and mortgage, is a conservatory measure, which does not change the character of the proceedings from executory into ordinary.
    Damages are allowable for a frivolous appeal from a judgment dissolving an injunction without prejudice to the rights of appellee for other damages by action on the injunction bond.
    APPEAL from the Tenth District Court, Parish of Bed Biyer. Logan, J.

      L, 23. Watlclns for Plaintiffs and Appellants :
    I. The lessee of mortgaged property, like any other third possessor, has arightto require on© proceeding to dispossess him, under executory proceedings, to exhibit a notarial title to the mortgage note, notwithstanding the act of mortgage contains the non-alienation clause.
    S. The remedy by appeal is not exclusive. The action of nullity in a judicial proceeding may often be asserted by injunotion as well. The injunction is the only remedy when some of the matters complained of as rendering the proceedings null aro dehora tho proceedings themselves.
    “"When a court is called upon to enforoe aright, it may avail itself of its jurisdiction over the person to do justice relative to a subjeot matter beyond its jurisdiction,” eto. MoDowoll' vs. Road, 3 An. 391.
    The order of seizure and sale is so far a judgment that an appoal will lie from it; but it is not a judgment in the true legal sense of the term, eto. Heu Dig., page 651, No. 1.
    “On an appeal from an order of seizure and sale, the only question is whether there was sufficient evidence to authorize tho flat.” Dodd vs. Crain, 6 R. 58; Cumming vs. Arohinard, 1 An. 279.
    “ lu the ahseuoe of all proof of fraud or ill-praotioo on plaintiff’s pait, his judgment cannot ho annulled beoause rendered on insufficient evidenoe.” Taliaferro vs. Steel, 14 An. 656; C. P. G05G07.
    “The notion of nullity lios against a judgment obtained on false documents, though not forged, and though the party using them wore innocent of any evil intention.” Beauchamp vs. AToMoken, 7 AT. S. 606; Hon. Dig. page 744,
    “ A judgment, whioh it is against good conscience to maintain, will be controlled by those equitable principles whioh exist, and may ho enforoed independently of the textual provision of the Codo.” C- P. 615 j Perrier vs. Perrier, 9 An. 428.
    “ The oases of ill practice, speoified in O. P, 607, are an illustration, and not exolusive of other oases." Laoostevs. Robert, 13 An. 33.
    3. This injunotion is not based upon tho insufficiency of the evidence adduood before the judge who granted tho flat, hut upon the ground that the true faots of the case were not produoed to nor acted upon by the judge.
    Further, that tho syndio had, on tho 17th of November, 1881, intervened in a pending suit, and asserted the self-same mortgage via ordinaHa; and that hooonld not thereafter legally obtain an order of sale via executiva.
    These were all matters dehors the proofs and proceedings presented to the Judge; and had he known them at that time he should have refused the order.
    Such was not tho case in Naugbton vs. Dinkgrave, 25 An. 538, and City of Shreveport vs. Flournoy, 26 An. 709.
    The question presented is not whether the Judge aoted properly in granting the order upon the evidenoe offered, hut whether he should, or would, have granted the order on the faots as they existed, and as they are alleged to be in the petition for injunction. 2 An. 491; 3 An. 150; 10 R. 70; 7 At. 239 ; 1 An. 323 ; 4 An. 152; 5 An. 124; 10 At. 223; 3 N. S. 315 ; 7 N. S. 515; 12 R. 238; 2 An. 499 ; 1 R. 407.
    4. To illustrate the correctness of the petition for injunction, and the incorreotnoss of tho ruling of tho oourt and tho position of tho syndio’s oounsel, see the case of Boone & Cookorham, Fxooutors, vs. Carroll, in whioh same syndio has a final judgment of the same District Court, ordering the same property sold, under the same mortgage, to pay the same dobt, and which is now on appeal to this Court by this appellant, At. Carroll.
    The largest liberty has been aooorded tho syndio in the exercise of his writs and interventions, and we submit that the present injunction presents a proper case for his further restraint and correction.

      M. 8. Jones for Defendant and Appellee:
    1. The lessee of mortgaged property holds his lease subject to a dissolution by judioial sale, which may take placo to enforo tho mortgage. Barelli vs. Szymanaki, 14 An. 47; 26 An. 618; 25'An. 397.
    2. Tho objection that there was not sufficient evidence to authorize the order of executory process, cannot be examined on aninjunotlon. The remedy is by appoal. City of Shreveport vs. Flournoy, Sheriif, et ol.} 26 An. 709; Naugbton vs. Dinkgrave et als., 25 An. 533; 25 An. 80; 14 An. 656.

      3. A devolutive appeal having been taken and perfected from the order of seizure and sale, against whiok this injunction issued, the Distriot Court was without jurisdiction to grant the same. 25 An. 538; 26 An 709.

      4. A District Judge cannot revise his decree, by injunction, on the ground of insufficiency of proof. Whethor or not the evidence was sufficient is a question for the Supreme Court alone, in revising the appeal from an order of seizure and sale. 25 An 538.
    5. The remedy of injunction cannot be used in connection with a devolutive appeal for the purpose of gaiuing the advantage of a suspensive appeal. 25 An. 538.
    6. Appellee asks for damages, as for frivolous appeal.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction proceeding to arrest and annul an order for executory process, issued to enforce the payment of a note for $5,500, secured by vendor’s privilege and special mortgage on the land sold.

On exceptions and on a rule to dissolve, the injunction was quashed and set aside, reserving defendant’s rights for damages on the bond.

From the judgment thus rendered this appeal is taken. The plaintiffs are two in number: 1st, tlie drawer of the note, who is the purchaser of the land; and 2d, one claiming to be the lessee of the property seized.

The record shows that, after the order of seizure and sale had issued, Carroll, the defendant, sought a devolutive appeal from it. We take judicial notice that in case No. 8,757 we have jnst affirmed that decree.

The syndic of the creditors of the payee of the note sued on in the seizure and sale ease, is the defendant in this injunction, which was sued out after the appeal had been granted.

The petition for an injunction substantially alleges:

1. As to tbe petitioner, Cockerliam, that lie is the lessee for the year 1882 of the land seized, and that he was not made party to the proceedings.

2. As to the petitioner, Carroll, that the order for executory process was rendered upon insufficient evidence ; that the note sued bn was endorsed and transferred by the payee thereof to some third person or persons ; that it was not since re-acquired by him; that the payee, who has failed, did not surrender or assign said note, or include the same in the schedule of his assets in his individual eessio bonorum and assignment made to his creditors; that the plaintiff in the case, suing as syndic of the creditors of the payee, has no title to the note and was without authority to obtain the order for executory process ; that said plaintiff, after said note had been endorsed by the payee, has attempted to erase the signature of the payee thereto, with a view to deprive him, Carroll, of his just defense there against; finally, that the plaintiff in said suit, after the order of seizure and sale had been made, has intervened in a certain still pending suit, and has thereby converted the executory into ordinary proceedings.

The defendant in injunction sought its dissolution by exception and rule, pleading want of interest and no cause of action in Cockerham, the alleged lessee, and Us pendens and no cause of action in Carroll.

The lower court properly ruled that Cockerham had no standing. He is, on his own showing, a mere lessee. He is in a worse possession than a third possessor. He has no right to arrest the sale and ask the nullity of the order for executory process. If he has a valid lease to the property, which was duly recorded previous to the registry of the act of sale and mortgage declared upon, it will be time enough for him to set it up and claim protection under it when the property will have been sold and possession will be asked of him by the adjudicatee, seeking to evict or eject him. Until then he has no right to interfere in those proceedings. 14 An. 47; 25 An. 397; 26 An. 618.

The plea of lis pendens as against Carroll is sustained by the evidence.

The judgment rendered on the appeal taken from the order of seizure and sale shows that the District Judge had sufficient evidence before him to justify his fiat An injunction, besides, does not lie to test questions pendiug on an appeal in the case the judgment in which is enjoined. 25 An. 80, 538; 26 An. 709; 14 An. 656.

Carroll has no authority to stand in court to champion the rights, if any, of the third person or persons to whom he alleges that the payee has transferred the note sued on in the executory proceedings. If that note belong to any such person or persons, the law allows them to set up their title to the same in the proper form. The plaintiff shows a prima fade title to it. A payment to him, by Carroll, will exonerate him to all ends and purposes, and justify the cancellation of the mortgage inscription against the property purchased by him. Zapata vs. Cifreo, 26 An. 87.

Whether the note was or not ever endorsed by the payee, whether the plaintiff has or not erased such signature, if given by the payee, is of no moment. Even if the note had been endorsed and the signature cancelled, as alleged, that would be no ground which the drawer can urge to arrest the sale and annul the order of seizure and sale.

Carroll has not even intimated what the just defenses are, which he says he has, against those third persons.

The intervention or third opposition of the syndic in the case stated was a conservatory measure, necessary or proper to secure the chum, privilege and mortgage, asserted in the executory proceedings which were made the foundation of the intervention. It was not designed to change, and did not alter, the character of those proceedings which has remained unaffected in every respected.

The defendant and appellee has prayed for damages for a frivolous appeal. We think the plaintiffs should be accordingly mulcted.

The District Judge has correctly reserved the rights of the defendant and appellee to claim damages, on account of the wrongful issuance of the injunction, from the plaintiffs and sureties on the bond. Such could not be allowed in this case.

There is no error in the findings of the lower court.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed with five per cent, damages in solido against the plaintiffs on the amount in capital of the note sued upon in the executory proceedings enjoined, together with costs in both Courts.


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    No. 8320.
    John Phelps & Co. vs. Z. Howell. E. & B. Jacobs, Intervenors.
    A consignor or other person, who ships to Ms merchant or factor, to whom he owes a balance of account, cotton, sugar or other agricultural products, and who delivers the bill of lading or receipt therefor to the steamboat or other carrier, for transmission, can do no act which may affect or destroy the pledge flowing from, such consignment, under the provisions of Act 66 of 1874.
    Hence, the consignee’s pledge cannot be destroyed or affected by a sale made of the consigned property “ in transitu,” by the consignor, who instructs the carrier to cancel and destroy the original bill of lading, to issue a new bilL to another consignee, and to deliver the goods to a different order.
    A PPEAL from the Civil District Court for the Parish of Orleans. Cl, Houston, J.
    21 <7. Semines & Payne for Plaintiffs and Appellees.

      W. S. Benedict for the Intervenors, Appellants.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs claim a privilege on thirty bales of cotton, consigned to them by defendant, from Shreveport, and sequestered by them on arrival of the cotton in this city. Intervenors claim the ownership of the cotton by reason of a sale to them by the defendant while the cotton was on .the way from Shreveport to New Orleans.

The facts giving rise to the controversy are as follows:

On January 8th, 1881, defendant, a cotton dealer in Shreveport, shipped by steamer “ Kate Kinney” to plaintiffs, his commission merchants and factors in New Orleans, sixty-seven bales of cotton, to be sold for his account, to credit of balance against him.

The consignment was made iu two different lots; one of thirty-seven, and the other of thirty bales, each covered by separate bills of lading. On the same day he drew a draft of $2,000 against, the lot. of thirty-seven bales; and one of $1,500 against the lot of thirty bales, both of which drafts were drawn on plaintiffs, and both were discounted by intervenors. The draft of $1,500 was paid on presentation ; but the thirty-seven bales of cotton, malting the basis of the two thousand dollar draft, having been seized by a third party, in Shreveport, before the departure of the boat, payment of the same was refused by plaintiffs, who had been advised of the consignment, of the drafts, and of the seizure of a portion of the consignment.

On information of the dishonor of oue of the drafts of defendant, intervenors, who, as bankers, were his creditors for a large balance of account., knowing his state of absolute insolvency, and all the circumstances surrounding the consignment of cotton to plaintiffs, prevailed on Howell to make a sale to them for $1,500, to be credited to his account with them of the thirty bales of cotton “in transitu,n and to instruct the carrier to cancel and destroy the bill of lading entrusted to it for transmission to the consignees, to issue new bills of lading and to deliver the cotton to intervenors, E. & B. Jacobs.

The case was decided below in favor of plaintiffs, and presents the issue as to the legal effect of the subsequent acts of defendant, on the pledge resulting from his own acts, under the provision of Act No. 6(1 of 1874.

The mere recital of the foregoing facts answers the question and solves the problem.

Under the statute, the delivery of the bill of lading to the carrier for transmission to the consignee, who is shown to have been a creditor of the consignor for a sum exceeding the value of the cotton, including an advance of fifteen hundred dollars on the identical cotton, created a perfect pledge on the same iu favor of the factor or consignee.

In the case of Florsheim Bros. vs. Howell, reported in 33 An. 1184, growing out of the seizure of the thirty-seven bales of cotton, making up a portion of this consignment, we considered the legal effect of the pledge thus created, and we held that such pledge would protect the pledgee or consignee, even against the claim of the unpaid vendor of the identical property.

A proper construction of the statute must “ a fortiori ” protect the consignee against any and all the subsequent acts of the debtor himself. Hence, it follows that the legal pledge and possession of plaintiffs, under the consignment, could not be, and were not in the least affected or divested by the attempt of the defendant to make a sale and a delivery of the cotton to intervenors.

We are- not concerned under the issue presented in the case with the question of the ownership of the cotton, under the sale made by Howell to Jacobs. The purchaser of property, under such circumstances, must take it subject to the encumbrances existing on the same, and his rights must be subordinate to the pledge and privilege created by operation of the law in favor of the consignee.

A different construction of the statute, under which the acts of defendant and intervenors could have the legal effect of destroying the privilege, and of divesting the legal possession of the consignee, would place the lattpr at the mercy of au unscrupulous and dishonest consignor, and would defeat the very object and entire purpose of the law. The debtor in such a transaction has no more power to impair or destroy the security which he has given to his factor, than a mortgagor would have to destroy or cancel the mortgage which he has given to his creditor.

We do not feel authorized to allow the damages prayed for by plaintiffs for a frivolous appeal, for the reason that the statute under consideration creates a new right of pledge which has as yet been interpreted but once by this Court.

Judgment affirmed.