author: Monroe, J.

text:
    No. 13,072.
    James Braddock Craven vs. Board of Levee Commissioners for Orleans Levee District.
    Syllabus.
    Assuming (arguendo) that a percentage upon the amount involved in a contract is a proper basis upon which to fix the compensation of a consulting mechanical engineer, in a case where he is called upon to advise with regard to .all the specifications and with regard to the contract as an entirety, such method of arriving at the compensation can not be adopted when the services for which the engineer is employed, and which he renders, relate only to a particular Question or portion of the work.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Branch K. Miller for Plaintiff and Appellant.

      Bernard McGlosP.ey for Defendant and Appellee.
    Submitted on briefs April 21, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff alleges that he is, by profession, a mining and mechanical engineer, that he was employed by defendant as consulting engineer, and, in that capacity, rendered certain services, in connection with a contract, into which defendant had entered, involving an expenditure of $74,000, and that he is entitled to three peí cent, on that amount, or $2,220, as his compensation; a,nd he prays for judgment accordingly. There was judgment in the lower court in plaintiff’s favor for $550, and he has appealed.

It appears from the evidence in the record, that the defendant contemplated establishing a pumping station, for drainage purposes, and that, under its directions, general specifications were prepared by the. Oity Engineer to serve as-the bases for bids from contractors, and that bids, to conform thereto, were called for, and received from various persons, and, among others, from the New York Dredging Company, which company offered to put up and equip the station, complete, for $74,000, according to detailed specifications, submitted with its bid, agreeably to the requirements of the call issued by the defendant.

It further appears that the bid and specifications of the New York Dredging Company were submitted by the defendant to L. W. Brow», City Engineer, and A. C. Bell, the engineer of the defendant board, who reported the-same back to defendant with suggestions of their own, which, in the main, were approved and accepted. There was one point, however, upon which a discussion arose in the board. Qfie of the members objected to the boilers indicated in the specifications, which were of the curved, or bent, tube pattern, and advocated the substitution therefor of boilers with straight tubes. As a result of this discussion a motion was made by the objecting member, and-adopted by the board, that the plaintiff be selected as an expert to aid, by his advice, in the determination of the question of the boilers to be-selected. The discussion as to the boilers led, at a later period, to-.more or less discussion upon the subject of the engines, and the plaintiff’s attention was particularly directed to that- subject. So far ns the record shows, there was never, at any time, any necessity; any •desire, any suggestion, or any intention, to call in an expert, or consulting engineer, for any other purpose than with regard to the boilers and engines, though as a mater of fact, the plaintiff, when called in gave some advice concerning the pumps. The two engineers already in the service of the board were both civil engineers, and Brown was also n mechanical engineer. The plaintiff describes himself as a mining and mechanical engineer, and says that he was employed as a “consulting” engineer. He was certainly not employed as a consulting mining engineer, from which follows, and it is so admitted by his ■counsel, that he must have been employed as a consulting “mechanical engineer.” The contract in contemplation called for an ■expenditure of $74,000, of which by far the larger proportion was to be invested in' static structure; that is to say, in a massive building; whilst the boilers, engines, pumps, etc., represented the smaller proportion of the outlay. If there is any meaning in the descriptive terms used, and if the institutions ■of learning intend anything when they graduate one student with the degree of mechanical engineer, and another as a civil, or military, or mining, or hydraulic engineer, the mechanical engineer should possess a proficiency not possessed by the others in the knowledge of designing, constructing, setting up and operating boilers, engines, pumps, and machinery generally, and would, therefore, be a proper person to ■call upon as an expert in questions of that character. His knowledge might, and probably would, in practical life, extend to the construction of buildings in so far as buildings might be needed for the accommodation of engines, machinery, etc., which it is his special business to erect and operate, but, in this respect, if it can be said that his profession extends thus far, it merely overlaps that of the civil engineer or architect, and in that field lie has less right than they to be regarded as an expert. Aside, therefore, from the fact that the defendant was satisfied, so far as the building was concerned, with the work of the civil engineers, Bell and Brown, and needed, and intended to call for, no further assistance, there is no sufficient reason shown why, as to that part of the woik, they should have called upon the ■plaintiff in his capacity of mechanical engineer. It is said, however, that the defendant, as a matter of fact, did call upon the plaintiff to act as consulting engineer with respect to the whoffi contract, and that he so acted; and this court is referred to the letter, from defendant, pursuant to which plaintiff entered upon his employment and did the work for which he now claims compensation. That letter is dated February 17th, 1896, is signed by the secretary of the board, and reads as follows, to-wit:

“I am directed by the board to inform you that, at a meeting held “ on Saturday, February 15th, you had been appointed the mechanical “ engineer to pass upon the plans and specifications of the New York “ Dredging Company, submitted for approval by the engineers of the '“board. Will you kindly call at this office as soon as possible to con- “ fer with Mr. Bell, the engineer of 1he board, and the City Engineer,

-x- * * -x- -x- * * -x- *■

“P. S. The engineers have agreed to meet here at 11 a. m. Will it '“suit your views; if not please notify by ’phone at what time you “ may be able to attend.”

The plaintiff attended the meeting appointed' in the postscript and thus entered upon his employment, which may be said to have extended, in intermittent form, over a period of twelve days, including the day upon which he received the letter, and the 26th of the same month, when he made a second, and last, report. Within that period lie had probably five interviews with Mr. Bell, the engineer of the board; probably twice as many with Mr. Brown, the City Engineer; he visited the scene of the work three times; and he carried on correspondence, by telegraph and mail, with several business houses, in what he conceived to be the discharge of the duties devolving upon him as-the result of his employment. Ho also had several interviews with the defendant board, and he addressed to it two communications, embodying, apparently, all the advice which he thought proper to give, ■the one dated February 21st, and the other February 28th, 1896.

Now there can be no doubt that plaintiff was selected as a consult-' ing engineer; he so alleges, and it is undisputed. It is plain, also, "from the terms of the letter upon which he relies, that he was employed, and was expected, to consult; from which it would seem to-follow that he is entitled to compensation, in any aspect of the ease,, only with respect to such matters as he consulted or gave his advice, upon , with or to the defendant or its already employed engineers. Bearing this in mind, we find that Mr. Bell 'and Mr. Brown, both testify that nothing was ever discussed between them and plaintiff except some questions concerning the boilers and engines, with perhaps a bare mention of pumps. Dreyfous, the president, and Pfister, and Abascal, members of the board, testify (Dreyfous distinctly, the others not so clearly,) that in his interviews with the board nothing was ever mentioned by the plaintiff except boilers, engines and pumps. The two, -and only, communications addressed by the plaintiff to the defendant refer to absolutely nothing except boilers, engines and pumps; and with regard to the latter there is merely a suggestion that the pumps made by a particular manufacturer should be selected in preference to pumps of some other make. The correspondence, telegraphic and epistolary, between plaintiff and various manufacturers, offered in evidence by him, also refers entirely and exclusively .to boilers and engines, with perhaps some mention of pumps.

If, therefore, the plaintiff ever consulted with the defendant, or its engineers, upon the subject of the foundations, or the superstructure, of the building provided for in the contract with the New York Dredging Company, or upon any other subject provided for in that contract, except the boilers, engines and pumps, those with whom he so consulted were entirely unconscious of such consultation.

There is no reason to doubt that the plaintiff is a competent mechanical engineer, and the court does not question, since he states it to be a fact, that he went over the entire specifications submitted by the New York Dredging Company. But, upon the other hand, we can not escape the conviction that he knew, what every one else connected with the matter (with perhaps one exception) knew, i. e., that he had been called in, and was expected only to give his advice in regard to specific matters, in the knowledge of which it was supposed, and no doubt, justly, that ho was particularly proficient. Under these circumstances his investigation of other matters was equally gratuitous and useless, and entitles him to nothing at the hands of the defendant, since his theory of compensation, upon the basis of a percentage upon the entire cost, is predicated upon the assumption that he was em-. ployed to render services, and did render services, with reference to the entire work, and this theory becomes untenable by reason of his failure to convert the assumption upon which it rests into a fact.

The judge a quo, after a very careful examination of the case, was of opinion that, for the work done, the plaintiff was entitled to $550. We are of the same opinion. His employment with defendant was, as we ,-have seen, of short duration, and does not appear to have interfered ■•with the discharge, by him, of the duties of the responsible position which he holds, or with the receipt of the handsome, and, no doubt, •.well earned salary attached to it.

The judgment ajipealed from is, therefore, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,117.
    State of Louisiana vs. Comptoir National D’Escompte de Paris; Albert Breton, Agent.
    Syllabus.
    . 1. The contemporaneous construction of a statute by those charged with its execution should not be disregarded except for cogent reasons and unless it " be clear that such construction was erroneous; and particularly is this true when the changed construction operates retroactively and imposes, upon citizens or corporations, charges or exactions, for doing business to which •they were not subjected under the construction which obtained when such business was entered into and whilst it was being conducted.
    '2. The construction which equity would favor may be adopted by a court of law, in construing a statute, if two constructions are fairly possible.
    . S. The words : “That for each business of carrying on a bank, banking company, association, corporation or agency,” as used in the License Law (Act 150) of 1890, having, for a number of years, been construed by those ■charged with its execution as not entitling the State to exact a license for ■“the business of carrying on'a bank,” etc., from an agency, in New Orleans, of a foreign bank, where such agency received no deposits and discounted no commercial paper, but confined its business to making advances on cotton and grain en route to Europe and to the dealing in exchange incidental and necessary to that business, and the General Assembly having, in 1898, ini posed a license upon the specific business done by such agency, it would be inequitable, thereafter, to sanction a change in the construction of the Act of‘1890, whereby such agency would be required to pay back licenses, with heavy penalties, for “the business of carrying on a bank,” etc., during the years when the previous construction obtained.
    ON APPEAL from tlie Civil District Court for the Parish of Orleans. Bighíor, J.

      JE. H. McOaleb, Jf., for Plaintiff and Appellant.

      Harry H. Hall for Defendant and Appellee.

      Argued and submitted March 25, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused June 12, 1899.
   The opinion of the court was delivered by

Monroe, J.

The State Tax Collector for the First District of New ■Orleans, proceeding by rule, alleges, in substance, that the defendant, -the “Comptoir National D’Escompte de Paris; Albert Breton, Agent,” carried on, in New Orleans, during the years 1894, 1895, 1896, 1897 and 1898, the business of “a bank, banking company, association, cor.poration, or agency,” within the meaning of the then existing law providing for the payment of a license by any person engaged in business; but that said defendant paid no license, and, hence, that it owes the •State $4,500 for its license for »ach of said years, with interest at two per cent, per month from the respective dates at which it became delinquent, and with ten per cent, on said amount and interest, as .attorney’s fees; the total claim for license being $22,500, and for interest and attorney’s fees nearly as much more, making an aggregate of over $42,000.

The proceeding is based upon so much of paragraph 2, Section 3, of .Act 150 of 1890, as reads:

“That for each business of carrying on a bank, banking, company, association, corporation, or agency, the license shall be based on the “ declared, or nominal, capital and surplus, whether said capital and “ surplus is owned, or in use, or on deposit, in this State or elsewhere, “ as follows, to-wit:

“First Glass. When the said declared or nominal capital and sur- “ plus is five millions of dollars or more, the license shall be four M thousand five hundred dollars ($4,500).”

The defense, stated in substance, is:

1. That defendant did no business in New Orleans in 1894.

2. That the business done by it in 1895, 1896, 1897 and 1898, was not a banking business within the contemplation of the statute relied on, and was not so considered, during those years, by the officers of the State, whose duty it was to construe and enforce said statute, and that the State should be estopped, at this time, and for the purposes of this ■suit, to place a construction on said statute different from that which obtained when defendant embarked in, and carried • on, its said business.

3. That the business carried on by defendant was that of interstate and foreign commerce, and that the act relied on, if construed to-require a license therefor, violates the “Commerce” clause of the Constitution of the United States.

4. Defendant further alleges that for the business carried on by it during the years mentioned, it paid a license on the business pursuit, known as “brokerage in money, stocks, bonds, etc.”

The facts, as disclosed by the record, are:

That defendant did no business in New Orleans in 1894.

That, in 1895, Albert Breton came here as the agent of the “Comploir National D’Escompte de Paris,” a corporation established by the French government, for general banking and financiering purposes, with a capital, including its reserve, of more than 100,000,000 francs, and which has its principal office in Paris, and that, as such agent, he-entered into, and has been engaged in, business in this city since that, time.

The business thus carried on, as appears from the record, was confined to transactions of the following character i

Persons purchasing cotton, or other agricultural products, for shipment abroad, draw bills of exchange to which are attached bills of lading of the products shipped. In order, however, to. obtain actual money with which to pay the purchase price of such products, it is-necessary to negotiate those hills of exchange, and part of the business done by the defendant is to buy them — with the hills of lading attached.

In some cases, and, apparently, not unfrequently, the cotton (and the word “cotton” may stand for other agricultural products for the purposes of this opinion), is purchased in the interior — in Mississippi, Texas, Arkansas, Alabama, Indian Territory, Oklahoma, or elsewhere, for shipment to Great Britain or the continent of Europe, via New Orleans, and the monej^ to pay the purchase price is advanced upon the arrival of the bills of lading and their transfer to the defendant here iñ New Orleans, such security being thereafter replaced by the bills of exchange drawn upon the ultimate consignees abroad, with the chip’s hill of lading attached, as in case of an original shipment from here.

In order to procure the money to transact this business, the defendant sells, in New York, drafts on London, Paris, Germany, or wherever they can he drawn to best advantage, and then, to transfer to New Orleans, when it is needed, the money thus realized in New7 York, defendant, sells, in New7 Orleans, its drafts on New York against said money which is there deposited to its credit.

Defendant receives no deposits in New Orleans and accumulates no funds here, save in the manner, and for the purposes, as thus stated. It makes no discounts of ordinary commercial paper, and lends no money upon mortgage or other security save cotton or grain which is en route to foreign countries, and the bills of lading, for which are transferred to it. And, the business thus described appears to have been the business contemplated when the agency was established here in 1895.

It also appears that defendant’s agent, before entering upon said business, sought information from those sources most likely to afford it, as to the conditions upon w'hich it could be conducted. Pie w7as advised by counsel that the law7 imposed no license upon it, and we do not understand the tax collector, plaintiff, in rule, to deny, in his testimony, the statement of defendant’s agent, that he too informed him that the law imposed no license for the business which defendant proposed to carry on. Certain it is that no effort was made-during the years 1895, 1896, 1897, to collect any other license than that which defendant voluntarily paid. When the General Assembly convened in 1898, it appears to have been the common belief and under-standing that the Constitution which had just been adopted, taken in connection with certain recent decisions of the Supreme Court of the United States, opened the way for the taxation of foreign corporations, such as defendant, which had before that time been considered, quoad the business in which they were engaged, non taxable by the State. Mr. Parker, who is the tax collector, and plaintiff in rule, in testifying, and in referring to the act under which he brings this proceeding, says (R. 34): “ * * * Now, for several years past, I “ have been in doubt about the constitutionality of this act in regard “ to foreign corporations, and there has been a great deal of litigation “ in regard to it. Since the decision of the Supreme Court of the United States, in an Ohio case, and other cases, where this question “ was brought up, I found that the Statp has a perfect right to demand “ a license from such corporations. In the meantime the eonstitu- “ tional convention had been called. The matter of taxing foreign “banks was called to the attention of the Constitutional Convention; “ that is, taxing .foreign banks that came here and transacted business-. “They do a large business, and local banks had to pay twelve or “fifteen thousand dollors a year for taxes, whereas foreign banks only paid two or three thousand dollars. I appeared before the legislative committee upon the part of the local banks, and made a statement in "regard-to the constitutionality of the act as it existed before; but ■“stated that I had nothing to do with'that act, and all those things were matters of law.”

Mr. Trezevant, chairman of the Committee on Ways and Means in the General Asáembly of 1898, testifies:

That a bill was introduced and passed for the purpose of taxing foreign banks; that said bill was passed upon the assumption that -there was no anterior legislation which accomplished that purpose; that it was the unanimous opinion of the Ways and Means Committee that said bill, as passed, and as it now stands upon the statute books, imposes a fair license ta£ upon the “Comptoir National D’Eseompte .de Paris”; and that said bill came from the State Auditor, and that .Mr. Parker, plaintiff in the present rule, and State Tax Collector, was consulted in its preparation and favored its passage. He further .says:

“That legislation grew out of the fact that the Constitutional Con'“vention had provided for a manner of taxing foreign banks and ■“ foreign citizens. And this bill was intended to reach what the State “ had not heretofore been able to reach fo.r taxes.”

The bill appears as Act No. 127 in the Acts of 1898, and is entitled, "“An act to levy an annual license tax upon certain classes of corporations doing business within the State; whose domiciles are in other States, or foreign countries, under Article 243 of the Constitution.” The first and seoond sections read thus :

“Section 1. Be it enacted, etc., That there is hereby levied an '“ annual license tax for the year 1899, and for each subsequent year, ■“under Article 243 of the Constitution, upon corporations doing “ business in this State, but domiciled in other States of the Union •“ or in foreign countries, as follows:

“Sec. B. Be it further enacted, etc., That all banks, banking associ'“ations, corporations, or companies, who may in their own name, or in •“ the name of their agents, or representatives, engage in this State in “the business of lending money,.or dealing in exchange, shall pay a “ license of two and one-half per cent, on the gross profits of all money “ loaned, and all exchange bought, and all exchange sold, and all other “ business done; piovided, no license shall issue as provided for in this “ section for less than one thousand dollars; provided that the mini- “ mum license of one thousand dollars shall not apply to those com- “ panies or corporations lending- money, secured solely by mortgage or “ real estate.”

It was not until after the passage of this act, that demand was made, for the first time, upon the defendant, for payment of $4500 for licenses as a bank, under the act of 1890, for each of the years ’94, ’95, ’96, ’97 and ’9S, and with that demand, made in September, 1898, came also, the demand for the payment of interest at 2% per month from May 1st of said years respectively, and 10% as attorney’s fees, upon the aggregate amount of licenses and interest.

These being the facts presented by the record, it must be admitted that the claim sought to be enforced, if legal, is certainly inequitable. The defendant came here not for the purpose of engaging in. a “banking business,” as that expression is commonly understood, but to engage in the particular business which has been described. Before entering into it, however, reasonable and prudent inquiry was made as to the conditions under which it could be conducted. Legal advice was obtained to the effect that the State imposed no license. Beyond, that, where was the defendant to go for information? The law applicable to the subject had been on the statute books for about five-years, during which time, it had been, primarily, interpreted and enforced by those officers of the executive department of the government particularly charged with that duty. They knew whether it had ever been applied to a case such as that of the defendant, and if no such, case had presented itself it was for them to determine, primarily, whether it was intended to be, and should be, so applied or not. The defendant submitted its ease to the particular officer whose duty it was. to require the payment of the license imposed by law — the only officer to whom such application could be made. And that officer, the plaintiff herein, whose diligence and vigilance is unquestioned, was of opinion then, as he was of opinion in 1898, when he appeared before-the legislative committee, that no license was imposed by law upon the-business in which the defendant was about to engage

From the evidence in the record it may also be fairly inferred that the State Auditor entertained similar views, and regulated his official-action accordingly.

So much for the executive department speaking through the officers. particularly charged with the interpretation and execution of the law-now sought to be enforced.

The legislative department took no action upon the question at issue from the adoption of the statute of 1890 until 1898, when a statute wag adopted applying in specific terms to the particular business in which llie defendant was, and is, engaged.

If, in the meanwhile, any action was taken upon the subject by tlie judiciary, it has not been called to our attention.

After the adoption of the act of 1898, however, the defendant, having- conducted its business during the years ’95, ’96, ’97 and ’98, in the belief that no license was required for such business, (although a broker’s license had been paid, apparently upon the theory that something was due for the privilege of doing business even though the law might not.require it), this action was instituted, and the defendant is called upon to pay not only the $4500 now said to have been due, as a license, for each of those years, but interest and attorney’s fees— which for the year ’95, bring the amount claimed for that year up to the sum of $9700, and bring the total claim, as has been stated, up to ever $42,000. The license here claimed, it will be observed, is not pn’dktited upon the amount of business done, or profits earned, but uiJon the whole capital of the defendant whether used in tins state or elsewhere, and if the theory propounded by the plaintiff be correct, the defendant is liable for the large amount demanded, even though its business should have proved unprofitable. The Supreme Court of the United States, long since, said in regard to the law of contracts:

“The sound and true rule is, that if the contract, when made, is valid by the law of the State as then expounded by all departments of the government and administered in its courts of justice, its validity and obligation can not be impaired by any subsequent action of the Legislature or decision of its courts altering the construction of the law.” Levy vs. Hitsche, 40th Ann., 500; Ohio Life Insurance and Trust Co. vs. Debolt, 16th How., 432; Gelpecke vs. City of Dubuque, 1st Wall., 175.

This rule, it may be said, is not literally applicable to a case where no question of contract is involved, and where it does not appear that the law relied on has received judicial construction, nevertheless, there can be little doubt as to the application to such a ease of the principle, which underlies the rule, that when an innocent person has participated in action which is the result of error, he ought not to be mulcted for the benefit of those by whom the error was committed.

In United States vs. Alabama G. S. R. R. Co., 142 U. S., 615, suit was brought to recover compensation for carrying the mail over the plaintiff’s road. The defense set up was that the government had ¿•ranted land in aid of the construction of the road and was entitled to mail transportation at a reduced rate. It was admitted that about nine-tenths of the road, lying in Alabama and Mississippi, had ‘been built with the aid of land grants, and that about one-tenth, lying in Tennessee and Georgia, had been constructed without such aid — and the only question was, whether the government was entitled to the reduced rates over the unaided portion. When the contract with the plaintiff was made the law was interpreted by the officers charged with its administration to mean that the government was entitled to the reduced rates only over the aided portion, but there was no action by the judiciary. When the plaintiff demanded its pay it was informed that the law was differently interpreted and that it must accept reduced rates over the whole line.

The Supreme Court said, referring to the construction first placed upon the statute:

“This was the construction given to it by the Postmaster General and by the accounting officers of the Treasury at the time the act was passed, and the Alabama and Chattanooga R. R. Co., and its successor, the appellee, was, and continued to be, paid upon that basis from 1876 to 1885, by six postmasters general, when in 1885, the then incumbent of the office reversed the rulings of his predecessors, and not only subjected the entire line to the reduced rates, but made such construction retroactive, and enforced repayment of what the road had for nine years received under the prior construction.”

• “We think the contemporaneous construction thus given by the executive department of the government and continued for nine years through six different administrations of that department — a construction which though inconsistent with thé literalism of the act, certainly consorts with the equities of the case' — should be considered as decisive in this suit. It is a settled doctrine of this court that, in ease of ambiguity, the judicial department will lean in favor of a construction given to a statute by the department' charged with the execution of such statute, and if such construction be acted upon "for a number of years, will look with disfavor upon any sudden change, whereby parties who have contracted with the government upon the faith of sucR construction may be prejudiced. It is especially objectionable that a construction of a statute favorable "to the individual citizen should be changed in such manner as to become retroactive, and to require from him the repayment of moneys to which he had supposed himself entitled, and upon the expectation of which he had made his contracts-with the government. These principles were announced as early as 1827, in Edwards vs. Darby, 12, Wheat 206, and have been steadily adhered to in subsequent decisions.” (Citing them).

The case of United States vs. Johnson, 124 U. S., 236, was one in which there was a difference between the government and a special' agent of the Treasury in regard to his charges, upon certain abandoned cotton which came into his hands in his official capacity, and the court sustained the charges on the ground that they were justified' under the construction of the law, (placed upon it by the officers charged with its administration), which obtained at the time they were made. Mr. Justice Harlan, in deciding the case, mentions the fact that whilst Mr. Chase was Secretary of the Treasury, and after-wards, the proceeds of abandoned property was “merely deposited” w-ith the Treasurer, but was not considered as “covered into the Treasury,” or as subject to the Constitutional provision that no money shall be drawn from the Treasury but in consequence of appropriations-made by law, and that some million of dollars of such money was paid out without any appropriation, when Congress interposed with a joint resolution covering the case. The learned Justice says:

“.The language of this resolution affords some evidence that Congress was aware of the manner in which the several acts in regard to-captured and abandoned property had been executed, and did not intend to disturb what had been previously done under the practice prevailing in the treasury department.” And — proceeding with the opinion — he says:

“In view of the foregoing facts, the ease comes fairly within the rule often announced by this court, that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons and unless it be clear that such construction is erroneous.”

The same doctrine is announced in Pennoyer vs. McConnaughy, 140th U. S., p. 1; Provident Life & Trust Co. vs. Mercer County, 170th U. S., 593; Washington & Idaho Railroad Company vs. Coeur D’Alene Railway and Navigation Company, 160th U. S., 77, 36th Fla., 519 (29 L. R. A., 507); 88 Me., 49; 149 N. Y., 5 (31 L. R. A., 116, 510) and other cases too numerous to mention. In the ease of Washington & Idaho Railroad Company'vs. Coeur D’Alene Railway and Navigation Company, 160 IT. S, 77, the court said: “When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor.”

In this State it has more than once been held that: “The common interpretation of statutes which has existed for a length of time will be considered, as it generally is, the correct interpretation. Communis error facit jus.” Hubgh vs. N. O. & C. R. R. Co., 6th Ann., 496-498; Beck & Co. vs. Brady, Brown & Co., 7th Ann., 1; Union Towboat Company vs. Bordelon, Auditor, 7th Ann., 193; Waldo & Hughes vs. J. M. Bell, 13th Ann., 329.

Applying the doctrine of these cases to the solution of the question ' under consideration, it might, well be that the contemporaneous construction of the act of 1890, under which defendant carried on business from 1895 to 1898, inclusive, without paying the license imposed' upon the business of banking, was erroneous, and yet., that the plaintiff would not be entitled to recover the- amount here claimed, or any part of it. But it is yet to be ascertained that the contemporaneous construction was erroneous.

“The words of a law are generally to be understood in their most' known and popular signification.” State ex rel Charles Bienvenu vs. Wretnowski, 17th Ann., 156; Fayssoux vs. Denis, 48th Ann., 852.

“The popular or received import of words furnishes the general rule “ for the interpretation of public laws, as well as of private and social “transactions.” Maillard vs. Lawrence, 16th, Howard, 251.

It is argued on behalf of the plaintiff in .rule that in the “strictest commercial sense,” the terms “Bank,” and “Banker,” apply to any corporation or person, who does, or who is authorized to do, any one off several things for which banks are considered to be established, and' that, therefore, the language of the act of 1890, imposing a license “for each business of carrying on, a bank, banking company,” etc, applied, and was intended to apply, to the defendant; not because the defendant did the business most common in banking, and commonly-supposed to be an essential part of it, but because the defendant did some of tlie business which is done by banks. And the argument is pressed, to the effect that, inasmuch as in the “strictest commercial sense/’ the terms “Banks,” and “Banker,” apply to any corporation or individual exercising any single function customary in the banking business, the act of 1890 ought to be applied to defendant if it did no ether business than loan money, or did no other business than buy and sell exchange, or if, receiving no deposits and discounting no paper, its business was confined to advancing upon cotton en route to Europe and dealing in exchange to the extent necessary for that purpose.

It will hardly be denied that there are many persons, both natural and artificial, who loan money, and make a business of it — and yet who are not commonly considered bankers. Many large corporations, for instance, such as Trust and Guaranty Companies and Insurance Companies are constantly seeking investments for their capital, and the making of loans is a most important part of the business in which they are engaged. Then there are retired capitalists, and capitalists who have not retired, and pawn brokers, ánd merchants, who loan •money, and notaries public through whom loans are effected, but they Are not considered bankers, nor are they required to pay license as íSüch. The framers of the United States revenue law (of 1864)'seem to have understood the matter, and, in imposing a license tax upon banks ánd banking, were careful to define, who, for the purposes of that law, should be considered a banker or as engaged in banking, aind, from the language of the law, any one who made a loan was liable for a banking license. Even under that statute, however, the Supreme Court of the United States held that “a company loaning its own money and taking bonds and mortgages therefor, and selling the bonds with a guaranty was not a banker.” Selden vs. Equitable Trust Company, 94th U. S., 419.

The language of the law which was the subject of construction, was as follows, to-wit.:

“Every incorporated or other bank, and every person, firm or company having, a place of business where credits are opened by the de • posit or collection of money or currency, subject to be paid of remitted upon draft, check or order; or where money is advanced or loaned on stock, bonds, bullion/bills of exchange or promissory notes; or where stock, bonds, bullion, bills of exchange or promissory notes are received for discount or for sale, shall be regarded as a bank or as a banker.” U. S. Revised Statutes, 3407.

Mr. Morse, in commenting upon this law and upon the jurisprudence concerning it, says: “* * * The act do'es not say a private money lender is a banker, but simply that he shall be taxed as such, probably for the reason that his business is more nearly akin to banking than to anything else. But for purposes of strict legal construction, in all questions arising beyond the control of the provisions of this act those arbitrary boundary lines are valueless. A money lender could not have been taxed as a banker in the absence of this express legislation and it was to remedy this that the legislation was deemed necessary.” Morse on Banks & Banking, Vol. 1, Section 4.

And such, apparently, was the situation in Louisiana. The General Assembly in the adoption of the act of 1890, did not have in contemplation persons of corporations engaged in the peculiar business carried on by defendant, and, hence, did not intend that act to apply to them; and, when defendant appeared, in 1895, the officers of the government made no attempt to apply to it a law which was inapplicable. But, because the existing law was inapplicable, the Statute of 1898 was adopted, imposing a license, not upon the “business of carrying on a‘bank, banking company,” etc., as in the Act of 1890; but, upon “all banks, banking associations * * * who may * * * engage in this State in the business of lending money or dealing in exchanges,” etc.

Further commenting upon the Statutes of the United States, Mr. Morse says (Vol. 1, Section 4):

“In construing this statute the Supreme Court of the United States adopt the definition of a banker therein given (Act 1864, Section 79), and say, generally: “Having a place of business where deposits are received and paid out on cheeks, and where money is loaned on security, is the substance of the business of a banker.” (Warren vs. Shook, 91 U. S., 704.) It will be observed that the statute uses the disjunctive and the court the conjunctive particle. The Statute says: “where credits are opened by deposits, or where money is advanced,” etc.. The court speaks of the depositing "and” loaning. For all general purposes, beyond the artificial influence of the act, the court is clearly the more correct.”

The definition of a bank given by the author himself is as follows: “A bank is an institution, usually incorporated, with power to issue its promissory notes, intended to circulate as money (known as bank notes), or to receive the money of others, on general deposit, to form a joint fund that shall be used by the institution for its own benefit, for one or more of the purposes of making temporary loans and discounts, of dealing- in foreign and domestic bills of exchange, coin, bullion, credits and the remission of money, or with both these powers, and with privileges in addition to these basic powers, of. receiving deposits and making collections for the holders of negotiable paper if the institution sees fit to engage in such business.” (Ibid, Section 2.)

Any number of definitions might be quoted, and all taken together would convey the idea expressed by the Supreme Court of the United States in Warren vs. Shook (supra), viz: “Having a place of business where deposits are received and paid out on checks, and where money is loaned on security, is the substance of the business of a banker.” No doubt the defendant does, in Paris, the business thus described, and, perhaps, there, and elsewhere, it may do other business besides, but it does not follow that its agent does what is commonly understood to be, or what the Act of 1890 had in contemplation as ,tho “business of carrying on a bank,” here. He might have been sent to Louisiana to operate a sugar plantation which had fallen into, the hands of the bank, but he would hardly be required to take out- a banker’s license because his principal is engaged in that business in France. And so, a foreign corporation engaged in the manufacture of cotton goods might establish an agency here for the purchase of the raw material (and the purchase of raw material is certainly a very essential function of such a business), but it would not be claimed that such an agency would be subject to a license imposed upon “manufacturers of cotton goods!”

Hence it is that although the peculiar business carried on by defendant in New Orleans may be, in the “strictest commercial sense,” or, within the terms of some unfamiliar definition, the “business of a bank,” etc., it is more than doubtful whether it can be considered such a business within the commonly understood meaning of that language. It was not so considered, by the officers charged with the execution of the law in which the language is used at any time apparently, from the date of the adoption of the law, in 1890, until the filing of the rule in this case in 1898. In the meanwhile defendant had gone into the business in 1895 and has continued up to the present time, and now — with the Act of 1898, making provision for the. future, and serving as a legislative interpretation of the Act of 1890' — entirely consistent with, if not actually based upon, the interpretation which that act had always received, the demand is here made that the Act of 1890 shall receive a totally different interpretation, for the purposes of this suit, and that the new interpretation shall be given a retroactive effect so as to make defendant pay more than forty thousand dollars, which no one, before the filing of this proceeding, had any reason to believe that it owed. The demand is unreasonable and inequitable. The case should be determined upon the principles enunciated in the judicial opinions hereinbefore quoted. It was so determined by the learned Judge a- quo, and the judgment appealed from is accordingly .affirmed.


text:
    No. 13,154.
    C. H. Minge & Co. vs. S. Barbre; Southern Cotton Oil Co. vs. S. Barbre (Consolidated).
    Syllabus.

      1. Under the laws of this State, the property of the debtor is the common pledge of his.creditors, and no combination between such debtor and a particular creditor, whereby the latter is given an unfair preference over other creditors. whether to be made effective through the machinery of the courts, or otherwise, will be tolerated.
    2. The privilege of the furnisher of money and supplies is to be restricted within the limits of the law and of the contract made by him, and where by the terms of the contract, it appears that a certain amount is intended to be secured, the privilege will he considered exhausted when that amount has been realized by the creditor from products to which the privilege attached.
    3. When the furnisher of money or supplies is claiming a privilege, contradictorily with other seizing creditors, the burden of proof is on him to show that the products on which the privilege is claimed are those which the money or supplies furnished by him were used to produce.
    ON APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Gullom, J.

      J. G. Capp'd for C. IT. Minge & Co., Plaintiffs and Appellees.

      A. V. Coco for Southern Cotton Oil Company, Plaintiffs and Appellants.

      W. A. Morrow, for S. Barbre, Defendant and Appellee.

      Argued and submitted May 4, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Monroe, J.

Statement op the Case.

It is proved in this ease that in April, 1898, A. F. Collins, of the parish of Avoyelles, introduced S. Barbre, of the same parish, to his (Collins’) brother-in-law, Chas. A. Francis, a member of the firm of O. II. Minge & Co., factors of New Orleans, with a view to Barbre’s obtaining advances to enable him to make a crop of cotton “on the plantation known as Ilaygood & Porot, and all other lands cultivated and. advanced by him in said parish;” that a contract was, accordingly, made. May 21st, 1898, whereby Mings & Co. agreed to-advance $2500, for which Barbre gave his note, indorsed by Collins, payable November 1st, 1898, and secured by the pledge accorded to furnishers' of money and supplies by Act No. 66 of 1874, and that he agreed to ship to Minge-& Co., not less than five hundred bales of cotton. The record shows that the contract was registre!, but does not show the date of registry.

It further appears that during the season of 1898, and after this-contract was made, Barbre shipped to Minge & Co., a total of one hundred and forty-five hales of cotton, which realized $3,291.04; that he remitted to them a draft for $1400, received by him from the Southern Cotton Oil Co., the proceeds of which were placed to his credit; and, that he drew upon them for various amounts, aggregating $6,697.41, exclusive of a certain sum of $1400, being proceeds of the draft of the oil company above mentioned, and about which there is some dispute. The balance claimed at this time by Minge & Co., and not disputed by Barbre, is $2499.50.

The uote given by Barbre, in May, having matured, and the balance due not having been paid, it was replaced by a new note for a like amonnt, payable December 15th, 1898, also indorsed by A. F. Collins; and the old note was surrendered.

In the meanwhile, upon October 24th, 1898, Barbre, by written contract, sold to the Southern Oil Codon Co., three hundred tons of cotton seed, at $7.00 per ton, and received as part payment, in advance,, the draft for $1400 above mentioned. It is undisputed that this draft was remitted to, and collected by Minge & Co.', and the proceeds figure upon the account between that firm and Barbre. It is claimed by Minge & Co., that said proceeds were paid, upon Barbre’s draft, to J. 0. Collins, though from Barbre’s account, produced by them, it appears, if we understand the entry correctly, that the payment was made upon the draft of J. 0. Collins. This J. 0. Collins, it is shown, is a brother of A. F. Oollins. It is not altogether clear that he was twenty-one years of age at the date of these transactions, nor is there anything to show that Barbre was his debtor, or to explain why this money was paid to him, if paid it was, upon the 28th of October, 1898.

According to the recital in the contract, the three hundred tons of seed sold by Barbre- to the oil company were then “stored in Griffin Gin and Warehouse on F. Gumble’s plantationas a matter of fact, however, Barbre appears to have had only about seventy-five tons of seed, all told, and the oil company has, as yet, received none of it, nor has the company recovered any part of the money paid on account of the purchase price.

Some time in November, 1898, Putnam & King, merchants of New Orleans, sued Barbre, in the District Court of Avoyelles, on his note^ for $169.55, dated August 10th, 1898, and made payable on or before October 1st of that year, and obtained judgment, by confirmation of default; and, after the expiration of the delay for suspensive appeal, issued execution and seized “about twelve bales of cotton in field; sixteen sacks of cotton; two plows, one cultivator, one iron safe, one store and bar room, about seventy-five tons of seed at gin, and one red mule.”

This seizure appears to have been made December 3rd, 1898. Upon December 5 th, following, Barbre, accompanied by A. F. Collins, ap'peared in the office of J. 0. Oappel,** an attorney in Marksville, the parish seat of Avoyelles, and agreeably to an understanding arrived at through previous correspondence with them, signed a confession of judgment in favor of Preston & Stauffer, of New Orleans, for $311.38, with a stipulation for stay of execution until October 25th, 1899, Mr. Cappel receiving a fee of $10.00 for his services, and reserving his claim to an .additional fee when the judgment should be satisfied. Court was not open, and the confession could not, then, be proved up; it therefore remained in the hands of Mr. Cappel, and no judgment was obtained upon it until February 25th, 1899. Immediately upon the signing of this confession, Barbre and Collins came to New Orleans, and upon the following day, December 6th, called together, at the office of C. H. Minge & Co., and had an interview with Mr. Francis, who called in Mr. Minge, and, thereafter, brought about an interview with the attorneys of his firm. The question was considered whether Minge & Co. should accept a confession of judgment from Barbre, but it was thought that such a course would not be advisable in the interest of Minge & Co., and it was finally concluded, as between .Francis and his attorneys, that Minge & Co. should proceed, at once, by attachment. It is said by Francis, that Barbre was not a party to this conclusion, but that he merely gave that gentleman to understand that Minge & Co. would take such steps as were, necessary for the protection of their interests. '

Be that as it may, on the evening of the same day, December 6thr Barbre', Francis and Collins left New Orleans on the same train, going’ towards Marksville, and while traveling-, discussed the business in which they were interested. How much or how little does not clearly appear. When the train reached Buukie, about seventeen miles from Marksville, and the point at which passengers leave the main line in order to reach that place, Francis left the train and went on to Marksville by some other conveyance. Barbre and Collins remained on the train in order to reach their homes, or a point nearer to their homes. The next morning, December 7th, Mr. Cappel, the attorney whose name has been mentioned, at the instance of Francis, filed the present sc.it, on behalf of Minge & Co., and caused writs of attachment and sequestration to issue, under which there was seized everything’ belonging’ to Barbre, that could he found, including most ■of the property already seized under the fieri facias issued by Putnam & King.

This seizure was facilitated by Barbre and Collins, who, together, pointed out the property, and Collins was appointed custodian or Irenper.

There is no suggestion in the record that either Barbre or Collins had any other business in New Orleans on December 6th, .or that they transacted any other business, than to inform Minge & Co. of the ■ condition of Barbve’s affairs, and it distinctly appears that it was the information thus given which induced Minge & Co. to institute this suit and make the seizure which is the subject of the present controversy.

For the defence of the suit thus instituted b;v Minge & Co., Mr. Oappel, their attorney, selected a young member of the bar who occupies a. desk in his office, and who, for answer, copied a form of general denial, prepared by Mr. Cappel, and it was Mr. Cappel who suggested the amount of the fee to be charged for this service.

Following these proceedings, the Southern Cotton Oil Co., on December 13th, instituted suit against Barbre to recover the $1400 paid him, as heretofore stated, and against Minge & Co. and Barbre, attacking- the proceedings of Minge & Co., as giving that firm an unjust preference; and said company prays that the said seizure, made by Hinge & Co., be set aside, and that tlie attachment which it, the oil company, caused to be issued, be maintained. To this, Minge & Co. answered, denying- the charge of collusion and fraud, and claiming damages in reconvention, as for libel, in the sum of $3000. Barbre also answered, setting up an elaborate defence, likewise prepared, as we understand it, by the counsel representing Minge & Co., and claiming damages for libel.

The two cases, that is to say, the suit brought by Minge & Co., and that brought by the oil company, were consolidated. When they were called for trial, counsel for the oil company made a sworn application for a continuance, on the ground that Mr. Texada, a witness whom he had endeavored to subpoena, was unexpectedly absent, but had gone to Lake Charles, where his testimony could readily be taken. The counsel stated in his motion that 'lie expected to prime by Texada that lie, Texada, Barbre and A. F. Collins were partners in the general merchandizing and advancing business on Bayou des daises, in the parish of Avoyelles, and that Barbre, as manager, of the firm, did a general advancing business on cotton with various small farmers, and received cotton in settlement of their accounts. The continuance was refused on the ground that the testimony would be cumulative, inasmuch as Barlvre and Collins were present, and were capable of testifying to the facts proposed to be proved by Texada.

There was judgment in favor of Minge & Co., and against Barbre, as claimed, maintaining their writs and condemning the oil company to pay them $500 damages. There was also judgment in favor of the oil company against Barbre for $1400, but setting aside the writ of attachment issued by said company. The claim of Barbre against the -oil company for damages, seems to have been ignored. The oil company has appealed.

Opinion.

An intelligent appreciation of the facts disclosed in the record leaves no room for doubt, as we think, that Barbre and Oollins came to New Orleans on the 6th of December, for no other .reason than to bring about the seizure which was made upon the following day by Minge & Oo. It seems to us equally clear that it was the information imparted, and the representations made by them, to Minge &Co., which, induced that firm to make the seizure, and that the purpose of Minge & Co., and of Barbre and Collins, was thereby to protect Minge & Co., and Oollins, as Barbre’s indorser, as against the claims of other creditors of Barbre. The testimony, and the facts disclosed in the record, give color to the suggestion that Collins and Barbre were partners, and if we considered the determination of that question essential, we should be disposed to remand the case for the purpose of obtaining the testimony of Texada.

As it is, however, we are of opinion that the result would be the same whether Oollins be regarded as Barbre’s partner, or whether we-regard him in the light of his interest as Barbre’s indorser, whose obligation is reduced in proportion as Minge & Co., succeed in the enforcement of their claim.

It is true that there is a disclaimer on the part of Minge & Go., of any collusion with Barbre; and of any intention to obtain an unfair preference over other creditors; but, this is coupled with the statement that they were acting for the protection of their own interests, from which we gather that they view the question as to what is fair and what is unfair, where the protection of one’s interests is involved, from a business, or perhaps, from a moral, standpoint, rather than as a-legal question which is to be determined by the law of Louisiana. It may, with truth, be said, that for a debtor to give a preference to one-creditor over another, is not in itself wrong, and is not fraud in a moral sense, since it is permitted in many of the States of the Union,, but that does not help the matter so far as this case is concerned. With us, the property of the debtor is the common pledge of his-creditors, and any arrangement, whether through the machinery of the-courts, or otherwise, whereby the debtor unites with one creditor to give such creditor an advantage over others, is in violation of the prohibitions of the law; and will not be permitted to stand. Newman vs. Baer & Levy, 50 Ann., 340; Block vs. Marks, 47 Ann., 107; Simon & Co., vs. Newman, 50 Ann., 354; Haas vs. Haas, 35th Ann., 885; Muse, Syndic, vs. Yarborough, 11th Ann., 530; Civil Code, 1969, 1970, 1977, 1983, 1984, 2053.

So far as the record shows, there was not sufficient legal ground for the seizure as made by Minge & Co., on the 7th of December, 1898.

It is true that Putnam & King had obtained judgment, by confirmation of default, on a claim for $169.55; and had made a seizure under execution; but, no one suggests that that judgment was obtained by collusion, and from the fact that Barbre seems to have been doing his best to defeat its execution, it appears not unreasonable to believe that his failure to defend the suit was the result of negligence or inadvertence.

It is also true that on December 5th, 1898, Barbre signed a confession of judgment for $311.28 in favor of Preston & Stauffer, but it was coupled with a stipulation for stay of execution, until October 25th, 1899, nor could the confession at that time be made the judgment. of the court, since the court was not in session; and, as a matter of fact, judgment was not obtained uptil February 25th, 1899. In the meanwhile, Hinge & Co., after concluding that a confession of judgment in their favor, untramelled by stay of execution, would not protect their interests, seized everything out of which Preston & Stauffer could possibly hope to realize, upon the averment, among others, that Barbre was giving, or about to give an unfair preference. It is not difficult to see who, as between Preston & Stauffer, and Minge & Go., obtained the preference, or who has the best cause of complaint.

Mr. Francis being asked, upon direct examination, what his grounds for attachment were, answered:

“I had positive evidence he had diverted cotton; in the next place, he had wilfully misled us as to his condition, and, thereby, allowed other creditors to seize property on which we were privileged creditors, and after I got to Marksville, I found out that he had confessed judgment, of which things I have no knowledge.” ( ?)

Being asked upon cross-examination, where he obtained his positive information in regard to the diversion of cotton, he answered that he obtained it after Barbre came to New Orleans, and the examination then proceeds as follows:

“Q. — How long afterwards was it that you got the information?

“A. — About ten minutes afterwards; ten minutes after he came and saw me.

“Q. — When you became aware of the fact that he had been diverting his cotton?

“A. — Yes, sir.

“Q. — From whom did you get that information?

“A. — From Mr. Collins.”

It may be remarked, that it is not pretended that Barbre was not present at the conversation to which the witness refers.

Elsewhere, the same witness testifies, as follows, to-wit:

“Q. — State to the court the cause for which you had this attachment issued.

“A. — On or about the Gth day of December, Mr. Barbre came to the city and came into our office and informed me that he was being sued and seized, and that he would not be able to pay his indebtedness to , our firm. This was a great surprise to me, as, by his letters, he had given me to understand that he owed no outside debts, that he owed no-outside creditors, and that he would have ample cotton to ship to meet his obligations to my firm.”

Speaking of the conversation between Barbre, Collins and himself, and in answer to a question, whether Collins had not told him that he had better take action to protect himself, he said: “I want to give you the conversation as near as I can, I do not remember exactly the conversation that took place. I was dumbfounded at the condition of affairs when he informed me what the condition of Barbre was.”

-x- * * * * * * *

“Q. — Up to that time you were at least under the impression that he was solvent, and would be able to pay his account?

“A. — Yes, sir; from his own statements; I acted immediately after he told me his condition.”

All that the witness knew, therefore, concerning- any diversion of cotton was from the statement of Collins, when Colins, accompanied by Barbre, called on him on December Gth, and there is no other evidence in the record on that subject; and, if he had been misled as to Barbrc’s condition, he only discovered it at the same time, and from the same source, e., through the statement which Barbre himself, and Collins, had come to New Orleans to make, for the special benefit and advantage of O. II. Mingo & Go., or, of that firm and A. F. Collins.

Tt does not appear that Barbre or Collins considered it worth while to give any such information to the Southern Cotton Oil Co., though, as that company seems to have had an agent in the parish of Avoyelles, such information might, perhaps, have been given without the trouble and expense of the trip to the city; nor did they give such information to any other creditor. Mr. Francis, however, as he says, acted immediately upon the information furnished him. He was in Marksville the next day. Mr. Cappel, whom he employed, showed him, he says, the confession of judgment which had been signed by Barbre in favor of Preston & Stauffer, and then caused the writs to issue under which everything' belonging to Barbre was pointed out by that gentleman and Collins, the two still acting' together, and seized, including the cotton seed already seized by Putnam & King, and which had been bought and paid for by the Southern Cotton Oil Co.

Concerning his journey to Marksville, Mr. Francis says:

“Q. — Did you not return from New Orleans to Marksville with Collins and Barbre ?

“A — -No, sir; I did not.”

At a later period, in the cross-examination, we find the following:

“Q. — You took the night train of the 6th, and arrived here on the 7th, and Mr. Cappel prepared the petition, and filed the suit that da5r?

“A. — I know he entered proceedings that day.

“Q. — After you filed that suit, where did you go ?

“A. — I went back to Bunkie.

“Q. — You did not go to Barbre or Collins’ place?

“A. — No, sir.

“Q. — Was Collins in the parish at the time you took out this writ?

“A. — I do not know.

“Q. — Who- came upon the train to Bunkie with you; did Barbre and Collins come on the train to Bunkie with you?

“A. — Yes, sir; I got on the train and found Barbre and Collins on the train.

“Q. — Why did you not tell me that, when I asked you about it before ? |

“A. — You asked me if they came to Marksville with me; that was your question.”

He further testified that they all occupied quarters in the sleeping car.

Now, as the trip from New Orleans to Bunkie covered, probably, nine-tenths, or more, of the whole distance from New Orleans to Marksville, the answer “No,- sir, I did not,” to the question first propounded : “Did you not return from New Orleans to Marksville with Collins and Barbre ?” might have been somewhat fuller. However, we have the fact that the three gentlemen traveled from New Orleans to Buukie together. As to what took place en route, Nr. Francis says, (speaking of Barbre) :

“Q. — Did you talk about his indebtedness ?

“A. — I was pretty sore about it and went to bed; I was coming up here to act.

“Q. — Barbre knew that you were coming to act?

“A. — I told him that I was going to protect my interest.

“Q. — Well, what did he say to that?

“A. — Not anything that I know of.”

• And then it appears, that, in the suit that was filed, Barbre was content to be represented by a young gentleman whom he had never seen, and who was selected by the plaintiff’s attorney, in whose office he occupied a desk, and who filed a general denial copied from a form prepared by that attorney. We are not disposed to criticize this young member of the bar because, as between his client and Minge & Co., the former had perfect right to acquiesce in the proceedings of the latter, and counsel are usually guided by the information which they obtain from their clients. There seems little room for doubt, under the circumstances, however, that Barbre did acquiesce in all that was done.

Nay, more, that he and Collins, instigated the whole proceeding, and that Francis, for Minge & Co., co-operated with them.

We are of opinion, therefore, that the purpose and effect of the seizure, by attachment and sequestration, made in behalf of C. H. Minge & Co., was to give to that firm an unfair preference, within the contemplation of the law of this State.

It may be said that, if not entitled to a privilege on.the property seized, as the result of the seizure, Minge & Co., are so entitled by reason of the law as applied to their contract.

The obligation, to secure which the privilege was accorded, was limited to $2500. This was the total amount, and the only amount specified in the contract, and, if there had been $10,000 worth of cotton to which the privilege applied, on Barbre’s plantation, the plaintiffs,Minge & Co., could, as between themselves and other seizing creditors, have enforced their privilege to the extent of $2500, and no further. As the matter stands, they have received from Barbre, according to their account, one hundred and forty-five bales of cotton, and have sold the same for $3291.50, and, crediting the shipper with that amount, in account current, they still claim a balance of $2499.50, for which they have obtained judgment with recognition of privilege on the cotton and seed seized.

We think it a reasonable proposition that privileges should be re.stricted within the limits fixed by the law, and by the parties themselves. If Barbre had intended to secure a greater sum than $2500; ■or if Hinge & Co. had intended to advance more than that amount, .and wanted the additional advances to be secured by the privilege by which the $2500 was secured, it is fair to suppose that such intentions ■would have been expressed in the contract into which they entered. As it is, Hinge & Co. were secured to the amount expressed in the contract, to-wit: $2500, and the whole crop, to make wdiich the money .advanced was used, remained pledged to them up to the time that it yielded them that amount, when their right of pledge was exhausted. Gay & Co. vs. Pike, 30 Ann., 1332.

Another difficulty which confronts the plaintiffs is this; The privilege claimed attaches only to the crop which the money or supplies advanced, have been used (by the person to whom they were advanced) to make.

In the case before us, it appears, from the terms of the contract sued •on, that Barbre, to whom the advances were to be made, wanted, and obtained, them, not 'only for such planting as he, himself, might do, but also, to enable him to make advances to others. The language of the contract is “to enable him to plant, gather, cultivate and raise a crop of cotton on the plantation known as the Haygood and Porot and •all other lands cultivated and advanced by him in said parish,” etc., etc.

We .are not to suppose that the words "and advanced,” were used without a purpose, or that they escaped the attention of either of the contracting parties.

Beyond this, the evidence shows that Barbre was engaged in general merchandizing, and, from these circumstances, taken together, it may fairly be inferred that he acquired cotton and other products by other means than as the result of his own farming or planting. This being the ease, it becomes particularly necessary, in order to justify the maintenance of the plaintiffs’ privilege, upon the basis of their contract, that they should show that the property upon which the privilege is claimed is within the terms of that contract. But this has not been done. In fact, the petition of the Cotton Oil Co., is the only place in the record where the specific property seized by Hinge & Co., is mentioned, and wo are not able to say, from the information thus afforded, whether Minge & Co. have, or ever had, any privilege ou that property.

These considerations will, however, affect the decree only in so far as may be necessary for the ease of the attacking' creditor. As between Minge & Co. and Barbre, the latter has not appealed, is not complaining, and there is no reason why the seizure should not be maintained.

For these reasons, it- is ordered, adjudged and decreed that the judgment appealed from, in so far as it dissolves and sets aside the attachment issued on behalf of the Southern Cotton Oil Company; and in so far as it maintains the attachment, issued on behalf of C. TT. Minge & Co., to the prejudice of the claim and attachment of said Southern Cotton Oil Company; and in so far as if condemns said Southern Cotton Oil Company to pay said 0. FI. Minge & Co., the sum of five hundred dollars, and to pay costs, be annulled, avoided and reversed. It is now further ordered, adjudged and decreed that the writ of attachment issued in behalf of said Southern Cotton Oil Company be maintained and recognized as entitling said company to be paid, by preference over said C. TT. Minge & Co., the full amount of its elaim, with, interest and costs, from the proceeds of the property seized under the writs issued in these cases, or either of them. It is further ordered that all cos.ts of these, eases since their consolidation, together with the costs of the appeal, be paid by 0. TT. Minge & Co,, and, it is further ordered, that in all other respects, no,t in conflict with this decree, the judgment appealed from be affirmed.


author: Monroe, J.,

text:
    No. 13,166.
    The State of Louisiana vs. Harry Devine.
    Syllabus.
    1. Where one offence is included in another, as assault and larceny in robbery, both may be laid in one count of an indictment or information. (Bishop, New Grim. Pro., §§488, 1002, 1.)
    2. In statutory robbery it is sufficient to follow the terms of the statute. (State vs. Corbes, 47 Ann., 1587 ; State vs. Corcoran, 50 Ann., 453.)
    3. In a criminal case the Supreme Court is without jurisdiction as to questions of fact presented in a motion for new trial brought up on a bill of exceptions. (Constitution, Art. 85; State vs. Cook, 42 Ann., 33; State vs. Corcoran, 50 Ann., 453.)

      ON APPEAL from the Criminal District Court for the Parish of Orleans. Baber, J.

      M. J. Gunningham, Attorney General, Robert H. Marr, District Attorney, and Joseph E. Generally, Assistant District Attorney, for Plaintiff and Appellee.

      B. B. Howard and II. 0. Hollander for Defendant, Appellant.
    Argued and submitted May 6, 1899.
    Opinion handed down May 29, 1899.
    Statement op tiie Case.
    Defendant was convicted of robbery and sentenced to imprisonment in the State penitentiary at hard labbor, for seven years, and to pay the costs of the prosecution, and he has appealed. .Iliscounsel relies, here, upon a motion, to quash the information, filed in the lower court, upon the grounds, that “the information is not sufficient in law-, and (hat he is not bound by the law' of the land to answer-same. * * * That the said information is null and void, and no effect, because it contains tw'o specific offences, under the laws of the State of Louisiana, which are embodied in one count;”’ and upon a bill of exceptions reserved to the ruling of the judge a quo refusing a new trial, which w’as applied for upon the grounds:
    That the evidence of the guilt of the accused consisted solely of the testimony of the prosecuting witness, who w»as shown to have been in a drunken condition at the time of the alleged robbery, and that it is-against'the policy of the law of the State to imprison any one upon such a showing. The same grounds, thus relied on, in the motion to-quash, and in the motion for a new trial, were made the basis of a motion in arrest of judgment, which was also denied.
    The information reads as follows, to-wit:
    Information.
    “State of Louisiana.
    Parish of Orleans,
    S. S.
    “Criminal District Court for the Parish of Orleans.
    “Robert II. Marr, District Attorney for the Parish of Orleans, who, in the name and by the authority of the said State, prosecutes in this behalf, in proper person comes into the Criminal District Court fo;the Parish of Orleans, in the Parish of Orleans, arid gives the said court to understand and be informed that one
    IIaury Devine.
    late of the parish'of Orleans, on the first day of March, in the year of our Lord, one thousand, eight hundred and ninety-nine, with force and arms in the parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the parish of Orleans, in and upon one J. 0. Donovan, feloniously did make an assault, and the said Donovan, in bodily fear, did then and there put, and twenty-five dollars of the lawful money of the United States of America, of the goods, property, money, and chattels of said Donovan, from the person and against the will of him, the said Donovan, then and there feloniously and violently did steal, take, and carry away, contrary to the form of the Statute of the State of Louisiana, in such case made and provided, and against the peace and dignity of fhe same.”
   I.

Monroe, J.,

after stating the case, delivered the opinion of the .court.

The grounds upon which the motion to quash rests, are not well taken. The information contains all the averments necessary to charge the statutory crime of robbery, within the intendment of Section 810 of the Revised Statutes. State vs. Corbes, 47 Ann., 1587.

As to the suggestion that there are two distinct offences charged in one count, i. e., “assault” and “robbery,” the answer is that the one is included in the other.- Mr. Bishop in his “New Criminal Procedure,” says: “Section 488. Many acts, if together they constitute one “offence, may be laid in one count,-thus:

* * * * * *

“3. Assault, battery, and false imprisonment may be charged in ■one count, ‘though,” says Potts, J., ‘in themselves considered separately, they are distinct offences, yet, collectively they constitute but one offence.’ ”

Referring to the crime of robbery, the same author says: “Section “1002. 1. The indictment should contain the allegations for simple “ larceny with the added matter which makes the larceny, robbery. It “is common to say that the ‘defendant’ in and upon X feloniously “ did make an assault and him the said X, in bodily fear and danger “ of his life, then and there feloniously did put and one (setting out “■'tiro things taken and their values as in simple larceny) of the “moneys, goods, and chattels of the said X, from the person and “ against the will of the said X, then and there feloniously and vio- “ lently did steal, take, and carry away.

“2. In statutory robbery, the terms of the statute must be followed,'’ etc.

See also State vs. Corcoran, 50 Ann., 453.

n.

The motion for new trial presented questions of fact, of which this court has no jurisdiction. Constitution Art. 85. State vs. Cook, 42 A. 88. State vs. Moreau, 50 A. 8. State vs. Corcoran, 50 A. 453.

Judgment affirmed.


author: NicftiOLLS, O. J.

text:
    No. 12,860.
    Mrs. Henriette Liminet, Wife of Eugene Darcourt, vs. Paul I. Fourchy.
    Syllabus.
    When plaintiff, in garnishment proceedings, seeks, under a traverse to garnishee»' answers, to raise issues not proper to be raised in such a proceeding, the . garnishees should except thereto, and not permit the issues to be tried and disposed o£ under evidence adduced without objection. (Carter Bros. & Co, vs. Galloway, 30th Ann., 732).
    ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      J. H. Ferguson and Albert Voorhies for Plaintiff, Appellant.

      Edward High tor for T. Dumas and T. Dumas Go., Limited, Garnishees, Appellees.
    Argued and submitted March 24, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused June 12, 1899.
   The opinion of the court was delivered by

NicftiOLLS, O. J.

The plaintiff obtained judgment by confession-against the defendant, for three thousand dollars, and interest.

On this judgment, sire caused a writ of fi. fa. to issue, and simultaneously, by supplemental petition, took out garnishment proceedings against Theodore Dumas, individually, and the firm of T. Dumas Co., Limited, who she alleged she had reason to believe were-indebted to her judgment debtor, Paul Eourchy, or had property or effects of his in their possession or under their control.

The usual interrogatories were propounded to those parties to be answered, and the same were answered by them, under order of court.

Garnishees in their answers denied expressly and directly, being either indebted to Fourchy, or having any property or effects of his in their possession or under their control. Dumas declared under oath both individually and as representing the T. Dumas Go., Limited, not only that neither he himself, nor the company was indebted to himr nor Lad any property or effects of his in their possession or under their control; bnt that, he, on the contrary, was indebted tc both 1 lie-company and Dumas individually, by reason of having been the attorney of the company at one time and of Dumas himself for several years.

After said answers were made and filed, plaintiff suggested that {he answers made were false; that garnishees were indebted to her judgment debtor in the sum of thirty-eight hundred dollars.

On this suggestion, the court, at plaintiff’s instance, ruled the garnishees to show cause why the interrogatories should not he taken for .confessed, and judgment rendered against them for the amount of plaintiff’s judgment and interest.

After evidence taken the District Court dismissed the rule, and plaintiff appealed.

Opinion.

If the defendant, Fourchy, had any unliquidated claims against Theodore Dumas, or T. Dumas & Co., Limited, and the existence of the same was denied by them, the proper course for him to have pursued would have been to advance them in a direct action in a petition in which those claims would he clearly and specifically set forth.

The defendants under such circumstances, would have been entitled to citation, and to have availed themselves of all exceptions and means of relief which would' have existed in their favor in a proceeding so brought.

The present proceeding, though it has taken the form and shape ■of one brought by the plaintiff, adversely to the defendant, in which she is attempting to cause to have foreedly applied to the payment •of her judgment against Fourchy, debts due to him by the garnishees, impresses us very strongly as one where the latter is seeking to have brought forward not directly as a party plaintiff himself, but 'collaterally against Dumas and Dumas & Co., debts which he asserts were •due by them to himself, and to establish them through his own testimony as a witness for ,the plaintiff.

The defendants denied all liability, and it is evident that a traverse •of their answers carried with it really the injection into garnishment proceedings of a litigated suit with Fourchy technically not a party ■thereto.

We find from the record that in order to reach a conclusion in respect to the liability of the garnishees, we have to determine first the litigated question whether there ever was a liability, on their part, to the defendant, and if so, how much, and next, having found such indebtedness to have existed, to determine whether the same had not been entirely or partially extinguished by counter claims.

In support of their position that they were entitled to have a direct action brought against them for the establishment of any liability on their part to Fourchy, appellees refer us to several places in Waples on Attachment, where reference is made to the necessity and proin-iety of keeping garnishment proceedings within the narrowest bounds consistent with justice to all parties. On pages 377 and 37d' the author says:

“When the plaintiff is allowed to traverse the answer of the garnishees and to contradict it by other testimony, the latter has an interest in the contest and that gives him the right to meet and refute such testimony by counter evidence. There would be no justice in a proceeding tending directly to charge him with liability unless he be allowed thus to resist it. His interest and therefore his right, is confined to his own protection from the danger of being •obliged to pay twice, if he is indebted, but if he is not indebted his interest and the correlative right give him the position of a resistant íigairst the danger of being condemned to pay once.

Here there is a suit within a suit, a contest within a contest; and it is manifest that it should be confined within the narrowest bounds consistent with justice to all the parties. The defendant in the attachment suit'’who looks on without participating in the incidental contest sees his business relation with his agent or alleged debtor undergoing judicial investigation and gathers items that may sub-serve his purpose in ease the same questions should arise in any subsequent suit by him against the third person summoned now as a garnishee. What an anomalous state of things is here presented, if the whole subject of complicated accounts and protracted and multifarious transactions are to be examined with one of the contradicting parties silent, while the other is virtually on trial. There must be close limits assigned to such a side investigation. Whatever would require a law suit between the garnishee and his creditor for elucidation ought not here be drawn into question. Whatever is certainly owing and liable now or hereafter to execution, without any conditions, should alone be the subject of evidence aliunde.

The garnishee’s unsuspicious statements should stand unless they can be clearly contradicted without involving the grounds of a litigious contest. The garnishee ought not be incidentally forced into a long complicated defence of- himself against the defendant by an attack of the plaintiff through the defendant, in an attachment suit, when there yet has been no judgment against the defendant, and the lien arising by seizure has not been perfected. The right and interest of the attaching creditor would not necessarily he wholly lost should the -garnishee be discharged, since he might yet in case lie-gained judgment against the defendant, levy on execution upon property in the third person’s hands, if he can make out the requisite facts, at that stage.

Tf, pending the attachment suit, the plaintiff should be allowed unlimited scope in traversing the garnishee’s answers, there would be no end to the litigation. All persons interested ought to be allowed to intervene, and there would he confusion worse confounded. ■Certainly the inquiry should not go beyond the question whether or not the garnishee’s answers are true with the view of deciding upon his immediate liability free from all contingencies whatever.”

Again, on page 365, referring- to the garnishees, he says:

- “The garnishee may plead prescription or anything that would i-ea good defense against the alleged, indebtedness, were the suit directlv brought by his own creditor. He may plead want of consideration. He may plead set off, but if such plea should involve the liquidation of accounts between him and the defendant, it would seem that the investigation ought not be had in the attachment proceeding,, and that the garnishment should not be sustained. Proof of set off in such proceeding would not be adduced contradictorily with the defendant, and he would not be bound by the statements of the garnishee, nor by the judicial finding thereon, .should he afterwards sue for settlement. Of course the defendant is not put to the worse by any acknowledgement of indebtedness, to him by the garnishee, nor can he by any denial thereof, but the investigation of accounts with one of the parties thereto left out of the inquiry, seems not advisable.

However, if the garnishee answers that he owes the defendant a stated sum on account the attaching creditor may hold him to it. If, on the other hand, he should honestly state, that he believes that he is indebted to the defendant on account, but that he cannot apx>roximate the amount, without a settlement, he ought to be discharged.”

The .author takes the same view of the subject, though presented in a different form, on page 368, where he says:

“If in defending, the garnishee should claim to be the owner of the thing sought to be subjected to the process of attachment, the question is whether his right is superior to that of the attaching creditor. If he is really the owner and so answers, and that fact is established, the creditor of the defendant could not maintain the garnishment.

But the validity of the garnishee’s title to property in his custody when he claims to be the owner, cannot be adjudicated on a rule traversing his answer. Such an issue, can only be passed upon in n direct suit.”

He cites in support of this last position the decision of this court in Ivens vs. Ivens, 30 Ann., 249. (See on this same subject, 27 Ann., 455, and 34 Ann., 592.)

No exception was taken by the garnishees to the traverse of their answers.

They permitted an investigation of the situation between Fourchy and themselves to be gone into without objection.

This court, in Carter Brothers & Co. vs. Galolway & Burns, 36 Ann., 732, declared that, in the absence of such an exception or objection in the lower court it would consider this objection waived. For this .reason, while there is much force, m what appellees now urge, we must base our decision upon some other ground. Outside of this particular question the only issue presented is one of fact. Were the ■answers of the garnishees true or not? The District Court held that ■they were true. There is not only nothing in the record which would warrant us in saying that there was error in this conclusion, but our «examination leads us to a similar one.

The judgment appealed from is hereby affirmed.


author: Watkins, J.

text:
    No. 13,188.
    Succession of A. Kellogg.
    Syllabus.
    Tlie designation of an attorney for absent heirs is not an arbitrary requirement of law but one that is necessarily dependent upon the circumstances of each particular case; and same is essential only in case a necessity therefor is shown during a pending administration of a succession.
    0 ST APPEAL from the Seventh Judicial District Court for the Parish of Madison. Montgomery, J.

      Gatchings, Hudson & Gatchings and W. M. Murphy for Executor and Legatee, Appellant.

      David M. Evans, Jr., Plaintiff in Eule, Appellee; in propria persona.

    Submitted on brief June 1, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by

Watkins, J.

The testamentary executor and universal legatee under the will of Adams Kellogg, deceased, is appellant from a judgment sustaining a rule in favor of counsel for absent heirs, and fixing his fee at the sum of «$200 and taxing same against both the succession and the legatee.

The grounds of appellant’s resistance are the following, viz.:

“First. Because lie can not prosecute liis demanfi against the suc- ■“ cession which was no longer in existence when he filed his rule.

“Second. Because his appointment was unnecessary and illegal, “ there being no vacant succession and no proof of absent heirs.

“Third. Because the succession was closed before he was appointed, “ and he has rendered no services to it.

“Fourth/ Because the counsel for absent heirs must be paid, if at ■“ all, out of the portion coming to the absent heirs.”

It appears that Adams Kellogg died on the 13th of June, 1898, in the parish of Madison, where he was domiciliated, without forced heirs. He left an olographic testament in which he instituted D. W. Aiken as universal legatee, and designated him as executor and dispensed him from giving bond.

That on the 17th of June — four days after the testator’s death — the instituted heir formally presented the will for probáte, alleging that deceased left no forced heirs, and prayed that he be placed in posses.sion of the estate as universal legatee.

On the same date, the clerk of the court entertained the application, -viewed the will, heard the evidence, and entered a decree probating the same, and placed the universal legatee in possession of said estate as testamentary executor; and he was duly qualified as such on the 20th of June following.

On the 30th of June thereafter, the universal legatee presented a petition to the judge of the parish, praying that the proceedings before the clerk be approved and homologated — his petition stating that he entertained some doubt as to the jurisdiction of the clerk to render ilie decree he did in the premises.

It appears from the minutes of court, that on the 5th of July — five days later — the judge, on his own motion, appointed “counsel for ab- “ sent heirs, contradictorily with whom these proceedings shall be car“ried on” — «-the statement being made that “the matter of taking J‘ further testimony is suspended for the present.”

But it appears, that on the same date, the judge rendered and signed a decree approving and homologating the act of the clerk in the matter of the probate of the will of the deceased; and which further declared in enunciative terms, “that, said D. W. Aiken, as the sole lega- “ tee under said will, be now placed in full possession, with the same “ rights as an heir of all the property, rights and credits comprising said estate, and (that he) be duly recognized as such, he having ac- “ cepted said trust.”

The counsel for absent heirs filed a motion on the 12th of December, 3898 — six mouths subsequent to the rendition of the aforesaid judgment — in which he requested the court to fix his fee as attorney for absent heirs as aforesaid, in such matter.

Talcing' cognizance of the appeal, the attorney for absent heirs re^ quests of this court an amendment of the judgment appealed from so as to award him $800.

The judgment is against the succession of Kellogg and the legatee.

The counsel for absent heirs, in the course of his statement, says that the deceased left no ascendants or descendants at his death; and that he had only one relative, D. W. Aiken, his cousin, residing in the parish, all of his other collateral kindred residing' in States other thau Louisiana.

lie further states that “although the matter, as thus presented, was “ to be tried contradictorily with the counsel for the absent heirs, the- “ fact is that he was absent from the parish, attending the legislature “ as a reperesentativo at.the time.”

It appears further, that the judgment of the court which terininated the succession by sending' the instituted heir into possession, did not make any provision for the fee of counsel for absent heirs, notwithstanding it was rendered and signed on the day of his appointment.

We make the following extract from the brief of the cotinsel for absent heirs, viz.:

“The minutes do not show his absence, neither do they affirm his “ presence. There is no cross-examination by him, no pleading filed, “ and no witnesses introduced. The most noticeable fact is, that the “judgment rendered, placing the legatee in possession, does not tax “ any fee for this counsel, appointed to represent these heirs, who are “proved to be absent and unrepresented in this State. The trial of “ the matter was entirely ex parie, and the judgment utterly ignores “ the rights of the attorney so appointed. There is no question of this. “ The counsel for absent heirs testified that he was only present two “ or three days after his ai'jpointment, having gone to Baton Ttouge. “ There was then no opportunity given this counsel to comply with “the duties required of him under the .Code, Article 3212. In fact it “ was impossible for any one to have done so. However, thereafter, “he fulfilled every requirement of such duties as detailed in his testi- “ mony.

“This judgment so ex parte rendered, ratified the probate made by “ the clerk, and placed the legatee in full possession' of the property.”

Counsel for defendants in rule submit (1) that counsel for absent heirs had no right of action against a succession as a legal entity after it had been formally closed by the judgment of a competent court, placing the testamentary heir in possession of the estate of the testator; (2) that he had not the right to thus summarily proceed by rule against the legatee, personally.

In support of tins proposition, they cite our opinion in Succession of Duffy, 50th Ann., 79; 24 So. Rep., 270; Succession of Harris, 29 Ann., 743.

In the former case the plaintiffs in rule demanded an account with a view to the collection of their fees as attorneys of the succession, and the judge below dismissed same “on the ground that the heirs of the “ deceased' had been put in possession on their application for that “ purpose to the court.”

After citing the pertinent authorities, our opinion says:

“The heirs are bound for the debts. But under our Code, their “ right to possession is not dependent on the account to be filed by the- “ executor; in other words, without any such an account they arc en- “ titled to possession, and when put in possession, the administration “ ends. No account can be required of him by creditors; but the law “ preserves their full recourse on the heirs, and to that relief we must “ remit plaintiff in rule.”

In Succession of Harris, 29 Ann., 743, our predecessors had this to say of the compensation of the services of attorney for absent heirs, viz.:

“It may not be amiss to remark that the fee of attorney for absent “ heirs, when such appointment is necessary, is properly chargeable to- “ the portions of the absent heirs, and not to the body of the sueces- “ sion; where, however, the services of that officer have proved valuable “to the succession arid for that reason a fee has been sometimes al- “. lowed (him) out of the succession funds generally. The law, how- “ ever, does not contemplate this, and it is exceptional.”

In the instant, case the proof is quite clear and undoubted to the effect that no services whatever were rendered to the succession by the counsel for the absent heirs, as it was formally closed by the judgment of the court sending’ the heir into possession on the very day of his appointment; and it is equally clear, that, under these circumstances, the appointment was unnecessary.

But conceding there was, technically, a necessity for his appointment, same was purely formal and perfunctory, as they were in the presence of an olographic will which designated Aiken as universal legatee, and a judgment of a competent court probating same and •sending him into possession.

The provisions of the Code on the subject of the designation of an attorney for absent heirs,- seem to indicate that it is an incident of vacant rather than of testate successions.

It is therein provided that “on the opening of a vacant succession, “ or of one of which the heirs, or a part of them are absent, etc., (R. C. “ C., 1210) ;• the counsel appointed by the judge must, immediately ■“ after his appointment, search amongst the papers of the deceased, “ and get all the information he can, to assure himself of the place of ■“ birth of the deceased, and where his heirs reside, in order to correspond with them, etc.” R. C. C., 1221.

The provisions of Articles 1162 and 1166 R. C. C. are quite similar.

It has often been held that the appointment of an attorney for ab-sent heirs was merely directory, and the failure to appoint one was, at most, only a relative nullity.

Gibson vs. Foster, 2nd Ann., 503; Succession of Wadsworth, 2nd Ann., 966; Heirs of Herriman vs. Janney, 31st Ann., 276.

The record conclusively establishes the fact that there are no forced heirs of the deceased, and that he instituted Aiken universal legatee.

Consequently there were, in the sense of the Code, Article 1210, no “heirs” with whom the counsel for absent heirs had to communicate.

In succession of Rabasse, 47th Ann., 1452, we held that “there is no ■“ power to appoint an attorney for absent heirs, when the heirs are ■“present or represented — (citing) R. C. C. 1210; Robouam’s Heirs vs. “Roubam’s Executor, 12 La., 73; Addison vs. New Orleans Savings “Bank, 15 La., 527.”

The case stated in Succession of McLoughlin, 14th Ann., 400, is exceptional, as will appear from the following statement which we have extracted therefrom, to-wit:

“The counsel employed for Davis, curator, conducted the mortuary “ xiroceedings until the testamentary executor was appointed, and the “ universal legatee put in possession.

“These services were beneficial to the estate, etc.

“The appointment of an attorney to represent the absent heirs ivas “a necessary proceeding'. The judge did not err in making the ap- “ pointment, as is manifest from the silence of the testamentary ex- ecutor and universal legatee, when it was in their powei: to have “ opposed the appointment, or at least to have moved the court to “ rescind the order.”

In that case rt is apparent -{hat the administration of the succession ■was commenced by the appointment of a curator as of a vacant estate,, and the contemporaneous designation of an attorney for absent heirs; and, that, subsequently the testamentary executor and universal legatee appeared and took charge of same and went into possession.

That opinion being directed to that condition of affairs, simply held, that the fee of the counsel for absent heirs having been legally incurred before the testamentary executor and universal legatee presented himself, it was a legitimate charge against the estate.

We think it was a just demand, and properly allowable under those circumstances, but we are decidedly of the opinion that that decision does not justify the claim of the attorney for absent heirs in this ease, whose appointment was made on the very date the succession was closed and the instituted heir was placed in possession of the estate of the deceased by a decree which failed to make any provision for compensation for his services.

Our conclusion is, that the designation of an attorney for absent heirs is not an arbitrary requirement of law, but one that is necessarily dependent upon the circumstances of each particular case; and that it is essential only in case the necessity therefor is shown during the course of a pending administration of a succession.

Succession of Burnside, 35 Ann., 721.

For these reasons, the judgment appealed from is annulled and reversed; and and it is further ordered, and decreed, that the demand of the plaintiff in rule be rejected at his cost in both courts.