source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,429.
    State ex rel. Joseph Raymond vs. Judge of Civil District Court for the Parish of Orleans; Division B.
    Iii the exercise of its supervisory jurisdiction over inferior tribunals, the Supreme Court will not issue a mandamus, to compel a district judge to grant a preliminary injunction which he has declined, in a suit for a money judgment, when the case does not fall within those mentioned in the Code of Practice, in which the judge is allowed no discretion to refuse, and when the object of the provisional injunction is, not to maintain the plaintiff in possession, hut to oust the defendant from, and restore or to put the plaintiff in the same, before judgment on the merits.
    A PPLICATION for Mandamus.

      Joseph Maille for the Relator.

      JP. ifiohinard for the Repoudent.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator applies for a mandamus to compel the district judge to grant him an injunction, which the latter lias declined to allow.

The return is substantially that, under the showing made, the petitioner does not come within the purview of the provisions of the law Contained in the Code of Practice, by which, no discretion existing in the judge, he is bound to allow the relief, and further, that the aver meats are insufficient and do not justify the issuance of the writ.

The pith of the lengthy petition presented to the district judge, and which forms part of that for a mandamus here, is simply that, for certain reasons, the petitioner has been illegally deprived of the collections of the revenues of the Second Street Market, in the city, by one Billgery and his heirs, who are in possession of the market, and who for many years have been and are collecting the revenues thereof, to the injury of the petitioner.

The prayer to the lower court was, that the defendants be enjoined from farther interfering with the petitioner in the management of the market, or the collection of said revenues, and from misusing their possession of the same. It concludes with a demand for $97,000.

The district judge, after hearing the parties, ou a rule nisi, refused the writ.

We cannot say that he erred. It is evident that the suit is one for money, and that the purpose of the writ sought is to oust the defendants from the possession of the market, and the collection of the revenues-which it yields.

The ease does not come as one of those in which the judge is hound to grant an injunction, but it ranks clearly among those in which the writ may or not issue, as he may, in the exercise of his legal discretion, primarily determine.

It has been repeatedly held that, although a preliminary injunction niay issue to maintain a plaintiff in possession, it should not he allowed to oust one in possession of property.

Had the injunction asked been allowed, the defendants would have been turned away and the plaintiffs restored, or put in possession of the market and enabled to collect the revenues previous to final judgment on the merits. The following authorities are in point: N. O. & N. E. R. R. Co., vs. Miss., etc., R. R. Co., 36 Ann. 561; State ex. rel Sigur vs. Judge, 33 Ann. 133; Torres vs. Faljoust, Ib. 560; City of New Orleans vs. Great Southern Telephone Co., 37 Ann. 571. See also Healey vs. Allen, 38 Ann, 867.

We must not be understood as at all trenching upon the merits of the case,' as, it may be, as a possibility, that, under the allegation said to he made for the first time, of the discovery of a counter-letter between the relator Raymond and Billgery, the plaintiff may obtain the relief sought.

We only hold that the case presented to the district judge is not one of those in which ho was bound to allow the preliminary injunction asked, and that, in the exercise of our supervisory jurisdiction and control- over inferior courts, we have no reason to order him to do that which he has declined doing.

The application for a mandamus is therefore refused with costs.

Mr. Justice Fenner recuses himself.


author: Fenner, J.

text:
    No. 10,431.
    The State of Louisiana vs. Harry Lyon.
    An appeal made returnable by fault of appellant, at a different place and time from tliat required by law, will bo dismissed,

      A PEAL from tlie Nineteenth District Court, Parish of St. Mary. Allen, J.

      Walter If. Boyers, Attorney General, and Walter J. Huthon, District Attorney for the State Appellee.

      Foster c6 Mentí' for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The motion to dismiss this appeal must prevail.

The record shows that on the motion of counsel for the defendant, the appeal was made returnable to this court at New Orleans, which motion and order were made on September 24th, 1889, after which date the next ensuing session of this court was at Shreveport, to which the law required that the appeal should be returned. This is fatal to the appeal. Sec. 4, Act 30, of 1878. State vs. Cloud, 40 Ann. 618. State vs. Jenkins, 36 Ann. 865.

It is, therefore, ordered that the appeal herein be dismissed.


author: Watkins, J.

text:
    No. 10,440.
    State ex rel. C. E. LeBlanc vs. the Judge of the Second City Court of the City of New Orleans.
    A judge; of a City Court of the city of New Orleans lias exclusive jurisdiction over ail •sums not exceeding twenty-five dollars, exclusive of interest. A .suit by a son, who lias just arrived at the age-of majority, against a tenant of liis property, which was leased to him by his father, (luring the term of liis minority, for the tithe thereof which is alleged to have fallen to his portion, is not in the nature of a petitory action, or one for a settlement of accounts, audit conies within the constitutional jurisdiction of a judge of that court.
    yf^PPLICATION for Prohibition.

      Charles Lauque for the Relator.
   The ox>inion of the court was delivered by

Watkins, J.

The rotator is one of the defendants in a suit entitled P. H. LeBlanc vs. H. Mehnert & Co. et al., x>eiidiiig in the respondent’s court, and his comxilaint is that he has exceeded the bounds of his jurisdiction in entertaining it, and he desires that we should restrain his further exercise of jurisdiction by the writ of prohibition.

The suit referred to is oue which .was instituted by Pierre H. LeBlanc for the recovery from the defendants, Melmert & Co., of the sum of sixteen dollars rent, under the following circumstances, viz:

That the sum specified is the one-fifth part of the sum of $80, which is the monthly rent, for the month ending on the 30th of September, 1889, of the tliree-story brick store No. 74 Tchoupitoulas street, in the city of New Orleans, occupied by them as tenants. That plaintiff arrived at the age of majority on the *nd ,<f August, 1889, and at once gave them notice of that fact, and demanded of them the payment to him of said fifth part of the said month’s rent, but they expressed an unwillingness to do so, preferring to make payment of the entire sum due to Charles E. LeBlanc, plaintiff’s father, by whom said premises were leased to them.

That at the time said lease contract was entered into, on the 30th of September, 1888, the plaintiff was a minor, and his father, in. executing same, whilst ostensibly acting in his individual capacity, did really sign same as the administrator of his five children’s property, which belonged to them in indivisión, they having derived title thereto by donation from their grandmother, a few years before.

That while he recognizes his right to claim said tithe of rent from said tenants, he yet arbitrarily and unlawfully refuses to instruct them to pay same to him.

That said C. Ii¡. LeBlanc has no property of any kind, and an unlawful payment of said rent by defendants to him would cause plaintiff a great and irreparable injury, and, hence, he is entitled to a provisional injunction against said Melmert & Co. et al. restraining them from making payment to the said O. E. LeBlanc, and the latter from exacting it of them.

Upon appropriate averments plaintiff obtained writs of injuction against C. E. LeBlanc and Mebnert & Co., and prayed for personal judgment against the latter, with recognition of his lessors’ lien on the movable property in the leased premises.

In the respondent’s court the defendants filed a plea to the jurisdiction, and, it having been overruled, they answered and plead the general issue. During the pendency of further proceedings the present application was made.

To make out the want of jurisdiction in the City Court to try the said cause, relator’s counsel’s contention is, that this is an evident attempt, on the part of the plaintiff, to recover from his father his one-fiftli undivided interest in the real estate described, and to avoid the payment of any part of the expenses for the uuexpired term of the lease; and that such an action is, necessarily, petitory in character, and lienee, it is not within the respondent’s cognizance. Further, that the cause of action stated, necessarily involves prpof of a donation of real estate. His further contention is that this suit is, in some sort, one for the recovery, by a minor who has recently come of age, from his father, who was an usufructuary during his minority, of his property, and that such suit must he brought in the Civil District Court.

.If either of relator’s hypotheses were true the respondent’s court would have no jurisdiction, because the constitution has conferred upon the “City Courts of New Orleans * * exclusive and final jurisdiction over all sums not exceeding one hundred' dollars, exclusive of interest.” Const. Art. 385.

And the constitutional amendments of 1884 only confers appellate jurisdiction over said courts when the, sum involved exceeds twenty-five dollars exclusive of interest.

But it apimars from the foregoing statement to be clear, that the suit is one, for the sum of sixteen dollars in money, only; and of it the respondent’s court has full and completo jurisdiction. It is not the province of this court to pass upon the facts presented, nor indicate what would he a correct judgment for the respondent to render in the premises.

The constitution has confided that power to him, and his judgment will he final and unappealable in the premises.

In this situation of affairs we are authorized to entertain relator’s applieation, but, under the statement of the,case just given, we feel hound to refuse the relief he has demanded.

It is therefore ordered that the re,straining order herein granted he rescinded and set aside, and that the peremptory writ of prohibition applied for he refused at the. relator’s cost.


author: McEnery, J.

text:
    No. 10,419.
    The State ex rel. Joseph Cazentre vs. Judges of the Court of Appeals and Civil District Court.
    The jurisdiction of the Court of Appeals is restricted to questions of law. in cases in which the amount involved ranges between $100 and $500.
    It has no power, in such cases, to inquire into the facts, to determine whether the claim is inflated or not; but it has that power in cases involving more than $500 in which it can pass on both the facts and the law.
    The jurisprudence touching the right of the Supreme Court to dismiss appeals in case within its jurisdiction in which claims arc fictitiously inflated, does not apply to the Court of Appeals.

      In. all civil cases within its jurisdiction, under the constitution, the Supreme Court has authority to look into both the facts and the law, while the Court of Appeals can exercise such right only in cases involving more than $500, in which it can pass od facts and law.
    The Court of Appeals cannot dismiss an anpeal in a case in which the amount involved ranges between $100 and $500, because it finds the demand inflated. It cap determine only questions of law in such a case.
    APPLICATION for Prohibition and Certiorari.

      Tí. Stuart Dennee, for the Relator.

      Drolla c6 Augustin for the Respondents.
   The opinion of the Court was delivered by

McEnery, J.

Jean M. Saradet sued the widow Rosalie Rayon, and the relator in Civil District Court for damages in the amounts of seventy-five dollars for attorney’s fees and fifty dollars for loss of time attending court.

There was no plea filed to the jurisdiction of the court. An answer was filed, and the case tried on its merits, and evidence introduced as to both items of damages. Judgment was prayed for jointly and in solido against both defendents, but judgment was rendered only against relator, the widow Bayon not having been cited. There was judgment' against the relator for eighty dollars. From this judgment the relator appealed to the Court of Appeals.

The plaintiff moved to dismiss the appeal on the ground there was no question of law involved in the case, the amount sued for being less than five hundred dollars.

The motion to dismiss the appeal was denied.

On the subsequent hearing of the case on the merits, it was dismissed by the court, expropria- motu, because the amount was less than one hundred dollars. ,

An application for a rehearing was made by the appellant and relator on the ground that the Court of Appeals having decided the Civil District Court had no jurisdiction of the case, it should have declared the judgment rendered in the case by that court a nullity. The application for a, rehearing was refused.

Execution issued on the judgment, and an application in due form was made for an injunction to arrest the execution of the same on the ground of the nullity of the judgment, it having been rendered by a court without j urisdiction of the case.

The District Judge refused to grant the order for the injunction.

The relator now invokes the supervisory jurisdiction of this court by writs of prohibition and certiorari to declare the nullity of the judgment rendered by the District Judge, and to prohibit him from further proceeding in its execution ; and that the judges of the Court of Appeals be ordered to avoid their judgment, of dismassal by decreeing the nullity of the judgment appealed from, or to hear the appeal on its merits. From the application it is to be inferred these remedies are prayed for in the alternative.

The amount in dispute was over one hundred dollars. It was not an inflated or a fictitious demand, but a serious claim upon which evidence was heard and considered, and a judgment rendered sustaining it in part.

The opinion of the judges of the Court of Appeals dismissing the appeal is as follows:

■ “We refused on motion of plaintiff and appellee to dismiss this appeal before hearing on the merits. The petition showing an apparent jurisdiction, and there being a statement of facts. But upon taking the ease up on its merits it is our duty, expropria motu, to notice the true character of the controversy and to refuse to consider and dispose of it, there being in fact less than one hundred dollars honestly involved. In ignoring this feature of the case until this present moment we have followed the jurisprudence established by the Honorable the Supreme Court of our State, 37 Ann. 541.
“In this case petitioner demanded damages for illegal judicial proceedings on the part of defendant, and the items of damages made in the petition are $75 attorney’s fees, and $50 ‘loss of time and other causes,’ the latter as a consequence of attending court and seeing to prosecution of the rights of plaintiff. The statement shows that the real injury occasioned in connection with the second head did not autually equal ten dollars. For all beyond this sum of ten dollars, this item is manifestly inflated, and to allow parties to manufacture jurisdiction, it will in this way, be mere exaggeration, is not to be tolerated.
“ This cause falls, therefore, strictly within the scope of the following authorities. Manuel vs. Leathers, No. 659, Beaucordy vs. Billet, No. 679, Court of Appeals. The appeal herein is, therefore dismissed with costs.”

In resting its conclusion upon the above recited reasons the Court of Appeals inadvertantly lost sight of the fact that the cause was not for an amount exceeding five hundred dollars and that therefore, it had no jurisdiction of the facts, but only of the law involved in the controversy. Tliis court has undoubtedly frequently dismissed appeals on examination of the merits after ascertaining-from the facts in the case that under the pleadings no judgment could be rendered equal to the lower court of its jurisdiction. But in all civil cases the court has the jurisdiction of both the facts and the law. In cases like the one in hand the Court of Appeals has no more authority to review the facts as a test of its jurisdiction than it could for the purpose of deciding the merits of the controversy. In such cases its jurisdiction attaches as to the law if the jurisdictional allegation involves an amount exceeding one hundred dollars but for no other purpose. In suits where the amount exceeds $500 its powers are similar to those of the Supreme Court.

Having refused to dismiss the appeal on the ground of want of jurisdiction as to question of law involved it was the duty of the court to decide the case on its merits.

Tt was without jurisdiction as to the facts and it was incompetent to consider them to test the jurisdiction of the District Court.

The right to appeal is constitutional and should not be denied without clear and convincing proof therefore.

It is therefore ordered that the relief prayed for by relator be granted and the rule be made absolute in so far as to order the Court of Appeals to reinstate on its docket the case of Soradet vs. Rosalie Bayon, et al., appeal from the Civil District Court, Parish of Orleans on the docket of said Court of Appeals and that said court proceed in due course to dispose of the. same according to law.


text:
    No. 10,405.
    State ex rel. B. F. Avery & Sons et al. vs. Henry L. Duffel, Judge of the Twenty-Second District Court, Parish of Ascension, et al.
    ]. Arricio 580 of the Code of Practice, which provides “that some judgments arc executed provisionally, although an appeal has been taken from the same,’ do not relate to judgments appertaining to the appointment of definitive syndics of creditors, unless tin* court, in rendering the decree, order that they shall administer provisionally.
    2. After a suspensive appeal has been taken from such judgments, the judge has no power to grant any additional order therein involving the subject matter thereof.
    yyPPLICATION for Prohibition.

      R. N. Sims for the Relator.

      .E. W. Pugh and Bayne, Denegre & Bayne for the Respondent.
   Tlie opinion of the court was delivered by

Watkins, J.

Relators are severally creditors of the firm, or planting-partnership of Kelley Brothers, and of John and William J. Kelley, the individual members composing- said firm, all of whom, in recent judicial proceedings, applied for and sought to obtain the benefit of the State in-sol vent law, and to that end tendered an appropriate petition and schedules of assets and liabilities, accompanying same with the requisite oath, and thereupon the respondent judge granted the usual ex parte order of acceptance of their surrender for the benefit of said insolvent creditors, and directing a convocation of a meeting of their creditors, for the purpose of proving their debts and choosing- a definitive syndic to take charge of their estate-, in due course of law.

To these proceedings B. F. Avery & Co., H. T. Cottam & Co., the Red River and Coast Line, and the Walter A. Moore Mowing and Reaping Company, filed sundry oppositions, which came on for trial, and oh which a final judgment was rendered, wherein the following-things were decreed, viz :

1st. That all of the oppositions be “ rejected and dismissed with costs.”

2nd. “That Joseph A. Shakspeare be, and he is hereby declared to be, and is recognized as the duly elected syndic of the-insolvents,” and directing letters issue to him as such, on his complying with- the requirements of the law.

3rd. That “the process verbal of the meeting of creditors held * on the 20th day of February, 1889, * * be and the same is hereby homologated.”

4th. That the insolvents “be and they are hereby declared to be entitled to the benefit of the insolvent laws; and be and they are hereby discharged from all the debts placed upon their biland'

This judgment was rendered and signed, in open court, by the respondent judge, on the 30th of March, 1889.

On the 3rd of April following, the opponents filed a petition praying for a suspensive appeal from said judgment, and upon that day the respondent judge granted them, in chambers, an order of suspensive appeal “from the definitive judgment rendered by this court on the 30th of March, 1889, in the matter of tlie above entitled and numbered cause, and on the oppositions of said petitioners,” and made it returnable to this court on the third Monday in January, 1890. The order fixed the amount ®f the appeal bond, and directed “that all parties in interest be cited,to answer the said appeal.”

Opponents furnished and caused to be filed a suspensive appeal bond, on the 3rd of April, 1889, the same day the order was granted. They subsequently, and in due time, caused the several insolvents and Joseph A. Shakspeare to be duly cited, in conformity with the order.

Having thus completed and perfected their suspensive appeal, from said definitive judgment, the object liad in view by the,relators, is to maintain the status quo, and protect their appeal, their contention being that same lias been impaired and violated, and will be further impaired and violated by the respondent judge, Joseph A. Shakspeare, and the sheriff of the Parish of Ascension, during the pendency of said appeal, and to their great and irreparable injury; and they seek by our writ of prohibition to restrain and prohibit their acts of interference therewith, and in a cause in which said judge had ceased to have any jurisdiction.

Their complaint is that, at the petition of the co-respondent, Joseph A. Shakspeare, alleging himself to be “the duly qualified syndic of said insolvents,” the said respondent judge granted on the 15th day of April, subsequent to the perfection of said appeal, an ex parte order directing that a sale be made for cash,” of all the property surrendered by said “insolvents, and particularly and specially the ^Bocagé ’ plantation, * * with all the mules, agricultural implements, etc., thereon and thereunto belonging, etc.,” as described in the schedules of the insolvents.

Sliakspeare’s petition alleges that this plantation and its adjuncts, constitutes the “principal asset surrendered,” and says “that it requires a great outlay of money and labor to maintain said plantation in a condition suitable for the purposes for which it is intended and which alone gives it a value, and it is to the evident interest, and great advantage of all creditors of said insolvents, that said plantation, and all of its appurtenances, consisting of mules, agricultural implements, etc., attached thereto and thereunto belonging, should be sold at once.”

In said petition it is further alleged that Shakspeare, Smith & Co. are first mortgage creditors of said insolvents, on said plantation, to the extent of nearly $50,000 with interest, and, as such, they represent, “in amount, more than a majority of the. creditors of said insolvents,” and that, at the meeting of the creditors of said insolvents “the majority in number and amount voted to sell said property, and all of the property of said insolvents, for cash.”

This application is fortified by the affidavit of Shakspeare, Smith & Co.

Reference to the schedule of the insolvents shows that the plantation and appurtenances, which the said order directs to be sold, is valued at about $20,000, and the total of their assets is $21,457 20, only an insignificant sum, in excess thereof, and the claim of Shakspeare, Smith & Co. is fixed at $53,920 59, as against total liabilities of $77,330 98, or-about two-third of the whole.

Under this order of sale a writ was issued and addressed to Bateman, sheriff of ¿rssension parish, who proceeded to advertise said plantation, and all appurtenances for sale, to take place on 25th of May, 1889, and hence he is, also, made co-respondent with Shakspeare.

The respondent judge for answer makes, in substance, the following return, viz:

That the insolvents filed their petition and he accepted their surrender on the 16th of February, 1889, and on the following day Avery & Sons filed an opposition in which, inter alia, they prayed that the insolvency proceedings be revoked and set aside, and decreed null and void, and that the order appertaining to the syndic, be vacated.

On the 19th of February, 3889, the Red River and Coast Line, Avery & Sons, II. T. Cottam & Co., and the Ward Mowing and Reaping Company filed their oppositions, alleging that a meeting of creditors could not lawfully be held, and prayed that the proceedings of the meeting be decreed absolutely null and void; that the claim of Rufus Lish and Shakspeare, Smith & Co., as creditors, be declared simulated, fictitious and unreal.

All of those several oppositions were duly served.

On the 20th to the 23d of February, 1889, a meeting of creditors was held, and thereat J. A. Shakspeare was duly elected definitive syndic; and that on the 25th of February, afterwards he applied to him for letters as syndic, and that he rendered an order directing letters to issue to him, on his taking the requisite oath and furnishing bond.

On the 4th of March, said opponents filed supplemental petitions, in which they charge that the pretended meeting of creditors was a nullity and the pretended election of -Joseph A. Shakspeare, as syndic, was a nullity, also, on the grounds set out in their previous petitions, and they for these reasons', opposed the homologation of the meeting of creditors, and the pretended election of Shakspeare as syndic, and they conclude with a prayer “ that all of the pretended proceedings be quashed, the pretended selection of said Shakspeare as syndic be declared a nullity, and that their right be reserved to move the court to place all of the property of Kelley Bros, in the custody, and possession of the sheriff.”

This statement shows that the oppositions were broad enough to cover every possible issue raised in the course of the insolvency proceedings, including the proceedings of the meeting of creditors, the verity and reality of the claim of Lish and Shakspeare, Smith & Oo., the legality of the election and appointment of Shakspeare as syndic, and the legality of the whole of the proceeding's in the premises.

All of these issues were decided by the respondent judge’s decree of date, 30th of March, 1889, and long subsequent to the alleged qualification of Shakspeare as syndic.

But the respondent assigns as an excuse for his subsequent order of sale, of the 15th of April, that he considered that under C. P. 580, Sliakspeare’s apimintment could not be suspended by appeal, and that by virtue of his order for the issuance of letters to him he was entitled to administer the affairs of the insolvents provisionally, and notwithstanding the appeal. But the order directs that letters issue to the definitive syndic. Ilis right as syndic is based upon an election by the creditors, and not upon an appointment by the respondent judge. He did not appoint Shakspeare, or any one else, provisional syndic. Nowhere in the whole proceedings is there any mention made of Shakspeare being directed or empowered to administer provisionally; and the opponents specifically attacked the legality and regularity of the proceedings of the meeting of creditors, and the appointment of the syndic.

These matters were embraced in the decree and are covered by the appeal.

To such a case as this the provisions of C. P. 580 do not apply. It declares that “some judgments are executed provisionally, although an appeal has been taken from the same. * * Such judgments relate * * to the appointment of syndics of creditors, when the court orders that they shall administer provisionally.”

But in this case the court has not ordered that Shakspeare shall administer provisionally, hence the judgment appealed from cannot be provisionally executed. Indeed, the judge had, upon an ex parte petition of J. A. Shakspeare, presented to him the day after the meeting of creditors had adjourned, and more than thirty days prior to his final judgment on the oppositions, granted an order directing letters to issue to him as the elected syndic;. and the right of said Shakspeare to act as syndic was subsequently questioned by opponents, decided by the judgment, and is an issue in their appeal. It is quite impossible, in the face of this record, for us to recognize the right of Shakspeare to administer provisionally, or to perform any act or function as syndic during the pendency of the relators’ suspensive appeal. * * The judgment appealed from is not such a one as may be provisionally executed, notwithstanding a suspensive appeal.

State ex. rel Girardey vs. SouthernBank, Opinion Book No. 50, page 553, is quite an analogous case, and in which the court had under consideration, and interpreted the provisions of C. P. 580, and said:

“ It is true that the functions and duties of the commissioners named in the decree are somewhat similar to those of syndics, but the decree confers on those commissioners the power to permanently administer, and were we to .consider that they and the syndic belong to one and the same class, still the dissimilarity between the judgment appealed from, and those which are provisionally executed, are manifest.”

Quite a smila,r controversy is presented in State ex rel. Pierson vs. Judge, 22 Ann. 61, of which the court said:

“ The appeal in this case involves not only the appointment of a dative testamentary executor, but the right of a court to appoint an executor at all.
“ We think that a suspensive appeal should have been granted, and that it is necessary in order to the efficacy of the appellate j urisdiction of this court. It is therefore ordered that the writ of prohibition be made peremptory.”

But if it were true, as stated by the respondent judge, that the appointment of Shakspeáre was to operate at least provisionally, and that the order of appointment could not be suspensively appealed from, it would not follow that the respondent judge had the right, notwithstanding the suspensive appeal granted by him, to order the sale of the real estate, for it is apparent that a provisional syndic would have no right' to sell real estate.

In this case a suspensive appeal was duly granted. The appeal involves the right and authority of the respondent judge to appoint a syndic at all. Pending a suspensive appeal he has granted an ex parte order of sale of all the property of the insolvents, and at the instance of said alleged syndic, whose appointment is in question, and upon the application of certain alleged creditors whose claims are declared to be simulated and unreal.

We do not think the respondent judge had jurisdiction or authority to put in force the terms of the judgment even provisionally, and that his action in the premises was improvident.

It is therefore ordered that the writ of prohibition be made peremptory ut the cost of the respondents severally.


text:
    No. 10,333.
    William Myhan and Wife vs. The Louisiana Electric Light and Power Company.
    A master who carries on an imminently clangorous undertaking, such as the generation and distribution of electricity, is bound lo know the character and extent of the danger, and to notify the same to the servant specially and unequivocally, so as to be clearly understood by him.
    Absence of actual knowledge is no exculpation. Constructive or obligatory knowledge supplies it. Sucli knowledge is presumed juris et da jure to exist.
    The servant is not required to know latent, but only patent defects. Actual knowledge must be established by the master, on whom rests the burden of proof.
    The servant has a right to assume superior knowledge in his employer, to rely on his prudence and judgment, and to believe that ho will not unnecessarily jeopard his person and life by avoidable risk.
    APPEAL from tlio Civil District Court for tlio Parish of Orleans. Ellis, J.

      Geo. L. Bright for Plaintiffs and Appellants.

      Farrar, Jonas c6 Kruilsclmitt for Defendant and Aqtpellee.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an action in damages brought by a father and mother under the provisions of Article K. C. C. 2315 (2294), as amended in 1884, p. 94, No. 71.

They aver substantially, that their minor son, Edward, aged about eighteen years, while in the employ of the defendant company, was, on the 8th of August, 1888, killed by the gross negligence and fault of the latter. The amount claimed is $25,000.

The defense is a general denial, and contributory negligence.

The case was tried by a jury who rendered a verdict in favor of the defendant company.

Prom the judgment thereon, against them, the plaintiffs appeal.

The charge made against the defendants is, that the accident occurred by their gross negligence and fault, which consisted in using wires which were not perfectly insulated, which formed a network on the floor, whereas they should have gone direct from the dynamo to the ceiling, and should have been placed beyond tlio reach of the employees.

In exoneration the company charges counter, that the young man, instead of approaching the dynamo (No. 35) in the reasonable and proper manner required by the circumstances, did so deliberately from the front, and deliberately straddled the two current-bearing wires leading from it, one to the ceiling and one to dynamo 50, which was coupled with dynamos 35 and 36 into a series of three; that by the movement thus occasioned, one of the wires touched the interior of the hoy’s thigh, and the other one the exterior of his buttock, thus making a circuit through his body, the shock of which threw him on the dynamo and thence on the floor, where he lay upon these wires, breaking the circuit in his fall, and receiving the full force of it, which'produced instant death.

The stubborn facts of the case are, that Edward Mylian a young man of about eighteen years, was iu the employ of the company on the 8th of August, 1888, as night oiler, in the dynamo room of their plant in this city; that during the night of that day, while in the. discharge of his duties as oiler, pressing tallow down in the box of a dynamo, he came in contact with one or more wires, on or near the floor, and that he was instantly killed.

There were only two persons present when the accident occurred — the electrician in charge of the dynamo room, and a fellow dynamo oiler.

The former (Crowley) says that from January, 1886, to August 14, 1888, he was employed by the defendant corporation, as chief dynamo mail, in their large plant in New Orleans. There were about sixty dynamos in the establishment, arranged on the floor iu series of three, each three connected to the plugboard.

He knew Edward Mylian, and had known him for nineteen months previous to Ms death, which occurred on August 8th, 1888, at about 11 o’clock iiitlie night, in the arc light dynamo department of the defendant corporation. He was in the act of lubricating the dynamo box with tallow. Owing to the arrangement of the wires on the floor, lie had to stand astride the wires in order to get at the box. While in this position one of his legs came in contact with a wire, and he'received the full force of the electric current. At that time the witness was about twenty feet away. His attention was attracted by a dull thud and a flash. On turning-around, lie saw Myhaii on the floor. He had broken the circuit in his fall. He (witness) pulled one of the wires from under his body, raised him in his arms, sent for the Superintendent, who at once came down. Mylian gave one or two gasps thereafter, and then expired.

The witness further states:

. Edward Mylian was killed by the fault of the company defendant. The fault was in the arrangement of the dynamo wires. Part of the dynamos on the opposite side were properly .arranged. Each dynamo was connected to the plug hoard by two wires running from the dynamo to tlie ceiling direct. On tlie other side, where Mylian was killed, three dynamos were connected to the plug board by two wires, part of these wires running along the floor of the building, and part of them along the ceiling.

A proper arrangement would have been to connect each dynamo by two wires direct to the plug board, and all the wires passing direct from the dynamos to and along the ceiling to the plug board.

The arragemeut of the wires on the floor was the cause of the death of 3d /ard Mylian, for, mid they been connected from the dynamo to the ceiling, there would have been no danger in standing where Edwa. ^ Mylian received the shock which caused his death.

The company, in the judgment of the witness, was negligent and careless in the arrangement of part of their wires on the floor.

He says that he frequently told the manager of the company, and also the superintendent, who were in charge of the plant, at different times during his services for the company, that there was great danger in leaving the wires on the floor and unprotected.

No notice, says he, was ever taken of the warning, except they would remark they would attend to it by and by, or when they got a new superintendent, or offered some excuse of the kind, until the day after Edward Mylian was killed, when the superintendent and the general manager told him to get carpenters and have nail poles on the dynamo frames, to attach the knobs known as insulators to the poles, and raise the wires from the floor and ran them on the insulators, which he did.

Another witness (Sittig), a fellow servant of Mylian, who was also present at the sad occurrence, was heard. He was in the employ of the company when he testified, and had been previously, and was in such enijiloy when Mylian was killed.

Mylian walked to the machine, straddled the wire and put his hand on the culi, and as he did so one wire rested a little above his knee, on the left leg, and the other touched him on the right leg, on the. inside, and he put both hands on the cup and he fell with his back on the machine. Crowley ran him (witness) away and told him he would get killed.

He was walking to Mylian, when he was killed, saw him drop; ho had his hand on the tallow cup shoving down the tallow. He fell on the dynamo with his back. There were two wires attached to the dynamo, leading to another dynamo near the end. There were three dynamos connected by wires, two leading to each dynamo. The wires were on the floor. Nearly all the dynamos were in this way; three to the circuit. Wires were on the floor, where the men had to walk.

The morning after the killing the witness went home, and. when he returned in the afternoon, 6 p. m., lie found that some of the wires had been raised with poles overhead.

Two other witnesses (Burns and Bpgel), testify in corroboration, except as to the circumstances of the accident. They establish the notices to the manager and superintendent, the dangerous character of the wires, the neglect, after notice, to remove them.

The change of the wires after the accident is shown by another witness — Wilson.

An electrician (Derbin), employed on defendants’ plant across the river, says that the wires there are not laid on the floor, but run to the ceiling.

Another electrician (Krapp), of the Edison Company, who liad charge of the Edison station in the daytime as dynamo man, says that he is an electrician; has been in the business some four or five years. He has visited the dynamo room in question. Some wires were placed over head and others coming down, connecting one machine, partly laid on the floor and partly brought up again and brought back. There is no doubt the safer way is to lay the wires from the ceiling, as is usual. He would not run them on the floor, but on the ceiling. It is practicable to insulate wires. By passing rubber tubes over them, contact with them will not .create a current. Commercial insulated wire will not do. He would not straddle wires, not in that situation.

There is other testimony in the record to show the age, habits, qualities of Edward Myhan, his earnings, his devotion to his parents, their circumstances and need of his assistance, the condition of his body after the accident; and also testimony to show that the notices testified to were not given.

We have been at some pains to state the facts as sworn to by the witnesses, although this was not strictly necessary.

From the proof in the record, it most clearly appears that the young man was in the discharge of his functions as an employee of the company when he came in contact with a charged wire, in consequence of which he was instantly killed.

It is therefore undeniable that the wire or wires which he touched or which touched him were dangerous. Had they not been dangerous, they would not have killed him. He might have received a shock only, even becoming unconscious, but he would not have died from contact therewith. , >

The company’s representatives had been warned several times of the dangerous character and condition of the wires on the floor, of the propriety, at least, if not tlie necessity of running them up to the ceiling, hut the warning's remained unheeded.

The representatives of the company, to wlitím. it is said that the warnings were given, deny that they ever were; but this denial is of a weak character. The affirmative testimony, corroborated as it is, outbalances the negative and justifies the inference that the notices given were unheeded because they were forgotten.

At any rate, it was the duty of the defendant company to have known of the dangerous character and condition of the wires. The knowledge which they ought to have had, the law presumes, juris eide jure, they had. Even had the company’s representatives sworn that they did not know of the same, such ignorance on their part would not have exculpated them. A superior is presumed to know, and in law knows, that which it is his duty to know, namely: whatever may endanger the tier-son and life of his employee in the discharge of his duties.

In such cases, the superior is bound specially to warn the employee of the nature of the danger, and will not be excused in case of injury unless lie does prove that the employe well knew of the danger and, notwithstanding, exposed himself willingly and deliberately to it.

In this case, there is no evidence showing that the company, or any of its officers, ever notified Mylian of the dangerous character of the wires in question, about which he had to move, or that he knew of the same. The burden of positive proof was on the defendant. The great presumption, not to say the certain proof is, that lie was totally unaware of the same, for it cannot for one instant be reasonably supposed, that had he known that by coming in contact with the wires they would have stricken him down dead, he would have done so, thereby committing suicide.

It is manifest that, liad the wires been laid as is usually done, or even been properly insulated, coming in contact with them would not have, as it did, produced death.

The testimony of the electrician in charge of the dynamo room at the time the accident took place, and who was no longer in the employ of the company when he testified, is clear that Mylian had to stand astride the wires to get at the box; but this seems to be denied by the company, who say that Mylian could and ought to have gotten to them in another, which was the proper way.

Their theory on the subject is purely hypothetical. It, in no manner, accords with the established facts and the groat presumptions arising from them.

Even if it were otherwise, the most material, the staring fact remains, that the wires were dangerous; that the company knew them to be such; that they did not specially warn.Myhan, and did not show that lie knew that they were of that character.

The company admitted their perilous nature, not only by laying some in the very room and in their plant across the river in the manner in which they ought to have been placed; but also by having the wires put in the proper condition immediately after the accident.

Based on sound reason and shore justice, the law as expounded by jurisprudence is clear, that it is not contributory negligence to engage in a dangerous occupation; Beach Con. Neg. 370, Wood, p.763; that the risk assumed by the servant is the ordinary hazard, incident to the employment, and this is synonymous with unavoidable accident; Wood, p. 738; that unless the act is necessarily and inevitably dangerous, no negligence can he imputed. Beach on Cont. Neg..370; Wood, 763; that the servant has a right to rely on the care and trust the superior knowledge, information and judgment of the employer, and to act upon the presumption that the latter would not expose him to unnecessary risk and has taken all necessary precautions; Wood, p. 681, 738, 739, 749, 751, 763; Thompson Neg., p. 975; that an employee is not hound to inquire as to latent, but only patent defects; that he has the right to presume that this inquiry has been made by the employer upon whom the duty devolves, and although the servant may know of the defects, this will not defeat iris claim, unless it is shown that he knew that the defects are dangerous. Wharton Negl., sec. 215; Woodl86-9; that the master is liable for subjecting the servant through negligence to 'greater risks than those which fairly belong to the employment, and the servant need only in order to recover to raise a reasonable presumption of negligence ox-fault on defendants’ part; Wood, 177; Tutrix Faren vs. Sellers, 39 A. 1020.

Considering the facts and the law, we are driven to the conclusion that the company is responsible.

The other question to he considered is the quantum of damages to he allowed.

This is not an easy task, in the absence of any rule or precedent by which to he governed.

The testimony shows that the plaintiffs were.in the humble walks of life; that the husband is a policeman on a salary of $50 per month, that he has five children and provides for three of them and for his wife ; that Myhan was at the time of his death between eighteen and nineteen years of age with, a bright prospect of existence before him; that lie was then earning $25 per month, which, as a dutiful son, he employed to minister unto the wants of Ms father's family. Of his presence among them and of that assistance they are forever deprived.

The probability is that, as he was a robust young man, attentive to his duties, and kind to his.parents, he would have advanced in life and bettered Ms and their condition. In the course of years he would have accumulated earnings to some reasonable extent, due regard had to his personal wants and necessities.

It is for the deprivation of his presence and support that Ms father and mother are entitled, under the provisions of the law, to relief.

While we consider that the claim which they- have set up for indemnity, at $25,000, is excessive, and admit that it is almost impossible systematically to figure out by items what amount may prove to them an adequate relief, we think, under a somewhat instinctive appreciation, considering that, as it is a probability that in the course of time the cir cumstances of Edward Myhan might have changed, had he lived, an allowance of two thousand dollars would not be unreasonable, and would relieve his parents awhile, to some extent, from the immediate consequences attending the severe injury inflicted on them.

It is therefore ordered and decreed that the verdict of the jury herein, Sind the judgment of the court thereon, be annulled and set aside, and,

• It is now ordered and adjudged, that the plaintiffs, William Myhan and Catherine Crow, his wife, recover from the defendant, the Louisiana Electric Light and Power Company, the sum of two thousand dollars ($2000), with legal interest thereon per annum, from the rendition of judgment till paid, and all costs of suit.


author: Poché, J.

text:
    No. 10,337.
    The Texas and Pacific Railway Company, et al., vs. The Southern Pacifc Railway Company.
    All contracts which liave a tendency to stifle competition, or to create or foster monopolies, with a view to unreasonably increase the market value of commodities, are against public interest and contrary to public policy, and hence such contracts can confer to the parties thereto no rights which courts of justice can recognize and enforce.
    Two railroad companies which have each a through and separate line of communication between two given points, are held to he competing companies for all traffic between such points.
    An arrangement by which tivo competing systems of railroads agree to divide their earnings for traffic between given points, for which they were previously competitors, is against public interest, contrary to public policy, and cannot ho judicially enforced.
    In disposing of such cases courts will not decree the nullity of the contract sought to be en' forced. They simply abstain from dealing with it, or adjudicating any rights arising thereunder; or giving their aid for the division of results, although ascertained, between the parties thereto.

      APPEAL from tlie Civil District Court, Parish of Orleans. JMghtor, J.

      TJowe t£• Prentiss and Titos. J. Semines for Plaintiffs and Appellants.

      I/eomj (6 Blair for Defendant and Appellee :
    I.
    Availway “pool,” or an agreement between two or more competing railroad companies to divide between them their earnings from competitive tariff, is illegal, being injurious to tlie public interests and. contrary to public policy, and is, therefore, incapable of conferring upon the parties thereto any rights which a court of justice can recognize or enforce.
    1. "Whatever is injurious to the interests of the public is contrary to public policy, illegal and null; a combination which has a tendency to destroy competition, and thus to enhance the price of any commodity needed by the public, or of all commodities by increasing the cost of transportation, is injurious to the public interests,* hence, a contract which creates such a combination is illegal and null. Hooker vs.. Yandewater, 4 Denio, 349 ; Stanton vs. Allen, 5 Denio, 435; Morris River Coal Co. vs. Barclay Coal Co., 68 Pa. St. 173; Arnot vs. Pittson andElmira Coal Co., 68 H. Y. (Ct. App.) 558; India Bagging Co. vs. Cock, 14 Ann. 164 or 168; Craft vs. McConoughty, 79 111. 346 (22 Ani. Reports 171); Salt Go. vs Guthrie, 35 Ohio St., 666; Morrill vs Railway Co., 55 hT. H. 531.
    2. A fortioH is this true when the combination is between a number of large and powerful tfuasi-public corporations, and absolutely destroys competition in the carrying trade of a vast extent of country, and completely deprives tlie public of the ‘wholesome influence of competion upon rates and fares charged and accommodations and facilities afforded.
    3. Tlie recognized and well-established doctrine in this country is, that railway pools, as above defined, are illegal and unenforceable. 15 Eed. Reporter, 672.
    II.
    The contract sued on is violative of the letter and spirit of Article X, Section 5, of the constitution of the State of Texas (1876); and, as it must be performed, if at all, mainly in the State of Texas and by Texas corporations, it is null and void, and was so ab initio.

    1. The object of the constitutional provision was to secure for the people of Texas the benefits of competition between all railroad companies engaged in transportation in Texas, which were so situated as to be able to compete with each other. *
    2. Hence, the prohibition contained therein covers any kind of consolidation or operation of railroads in partnership which would destroy the competition that would otherwise exist between them. A consolidation of one system of connecting linos with a competing system of connecting line is, of course, as much prohibited as a consolidation of two single roads. Gulf, Colorado and Santa Eé Railroad Co. et al. vs. State of Texas, Supremo Court of Texas, Doc. 1888 (not yet reported).
    3. A “contract which provides for dividing the earnings, after deducting a certain percentage for expenses, and which, therefore, makes it indifferent to the parties to the contract on which of the lines the passengers or freight are carried, contains in itself the most es* sential element of consolidation and is, therefore, in violation of the lew.” Morrill vs. Railway Co., 55 H. H. 539.
    4. Section 5, Article X of the Texas Constitution, also prohibits one railroad line from making any arrangement by which it may control “in any way” a competing line. An arrangement by which a right to demand a share in the earnings from all competitive business of a competing line is secured, certainly amounts to a veiy effective control over that Hue. G. C. & S. E. R. Co. et al. vs. State of* Texas (supra).

      5. A railroad company — outside of the limits of the rule against impairing the obligation of contracts — is subject to the Constitution, statutes and public policy of the State by which the corporation was created.
    6. A law prohibiting rival and competing railroads within a State from consolidating or controlling each other is nob a regulation of commerce between the States. It does not destroy, abridge, curtail, or interfere with the carriage of articles of interstate commerce.
    7. The prohibitory clause in the Constitution of Texas is in the nature of a police regulation. In the exercise of the police power State legislation may indirectly affect interstate or foreign commerce, provided it imposes no burden thereon and does not conflict with any law of Congress on the same subject. Smith vs. Alabama; 124 IT. S. 465; Kidd vs. Pearson, 128 U. S. p. 23.
    8. The contract sued on relates to intra-state as well as to interstate commerce. If it is illegal as to the former, it is illegal entirely, for it is not separable into two independent parts.
    9. In the following cases, State legislation similar in character to Article X, Sec. 5, of the Texas Constitution, and affecting interstate and foreign commerce to same extent, was sustained and enforced. Tippecanoe County vs. Lafayette, M. & M. R. Co., 50 Ind. 85 ; State vs. Vanderbilt, 37 Ohio St. 590; Penn. R. Cods App. (la.) 4 Cent. Rep. 495; State vs. Atchison & H. R. Co. (Heb.) 32 Am. & Eng. R, R. Cas. 388; Thouron vs. East Tenu. V. & G. R. R. Co., (Ch. Cb. Tenn.), 5 Ry. & Cpn. L. I. 77 ; Hartford & H. H. R. Co. vs. H. Y. & H. H. R. Co., 3 Robt. 411; Morgan vs. Donovan, 58 Ala. 241; Murray vs. Vanderbilt, 39 Barb. 140.
    III.
    If the agreement sought to be enforced be found contrary to public policy or violative of the Constitution of Texas, and hence illegal and null, the court must declare the contract void and refuse to lend its aid in adjusting accounts between the parties to it. It must leave them where they are and dismiss the suit. JSx turpi non oritur actio.

    1. The question of consideration is immaterial. A court will not recognize that an illegal contract can confer any rights, either to compel the payment of a consideration promised or the restitution of one received. Totior est conditio defendentis.

    See authorities quoted under Divisionl. Also Dillon vs. Allen, 46 Iowa, 299 (26 Amer. Reports, 145); Hall vs. Costello, 48 H. H. 176 (2 Amer. Reports, 207); Santa Clara Val. M. & L. Co. vs. Hayes (Cal.), 18 Pac. Reporter, 392; Sackson vs. McLean etal., 36 Red. Rep. 213; R. S. C. C. 12, 1892, 1895, 1896; Cummings vs. Saux, 30 Ann. 207; Glasscock & Williams vs. Wells, 23 Ann. 517; 21 Ann. 110; 21An.304; H. D. p. 1010, Ho. 19; Id.p. 1009, Hos. 7 and 8; Id. p. 1008, Ho. 9.
    2. To find the contract illegal and yet compel an accounting and settlement of transactions alleged to have been done during its continuance would be an anomaly in jurisprudence.
    3. The doctrine laid down in Brooks vs. Martin, 2 Wall. 278, applies only to a ease where plaintiff does not declare on the illegal contract and does require its aid to establish his demand, where he can show a title to the fund or property claimed without reference to the illegal contract, and where the court can grant tlie relief prayed, for without touching the illegal contract. Hone of these essential attributes exist in this case. Cummings vs' Saux, 30 Ann. 207; Jackson vs. McLean, 36 Bed. Rep. 213.
    4. We do nob rely merely on the ultra vires character of the contract. It is void, not simply for want of power to make it, but by reason of its intrinsic illegality. The distinction is that- an ultra vires contract may sometimes be recognized and enforced, but an illegal contract, never.
    5. In respect to contracts objectionable on grounds of public policy, corporations stand on precisely the same footing as individuals. Wood on Railway Tran., vol. I, pp. 491, ffg.

      1Y.
    If the pooling- agreement ever had any valid existence, it was terminated hy the Interstate Commerce Act. To enforce a performance of it after April 3, 1887, the date when that act went into effect, would be to compel the parties to commit what the supreme law of the land has declared to be an offence and a misdemeanor and positively prohibited under severe penalties. Interstate Commerce Act, Section 5.
    1. The authorities are unanimous in stating that a statute may validly make unlawful that which was lawful before, when a contract was entered into, and that the effect of such a statute is to put an end to the contract. Bishop on Contracts (Ed. 1887), sections 594, 564, 480 ; Wald’s Pollock on Contracts (Ed. 1885), pp, 356, 347; Presbyterian Church vs. City of New York, 5 Cow. 538; Brown vs. Delano et al., 12 Mass. 370; Hare on Contracts, p. 654; Am. and Eng. Enoyl. of Law, verbum “Contract,” p. 899.
    2. If State legislation can thus put an end to a contract, a fortiori can an act of Congress do so.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff’s object is to enforce specific performance of one of the stipulations contained in a contract or agreement executed by the two corporations on tlie 26th of November, 1881, and modified or amended on tlie 18th of February, 1885. The agreement was entered into, on tlie one part by several railroad companies operating in the States of Texas and Louisiana, then controlled, and therein represented by Collis P. Huntington of the city of New York; and on the other part by several similar corporations, also operating in Texas and in Louisiana, then under the control of Jay Gould of the city of New York, and who therein acted in behalf of said companies.

The expressed object of the contract was to adjust certain differences existing between tlie companies represented by Huntington and those represented by Gould, and to put at an end to existing litigation growing out of such differences and difficulties.

Hence tlie instrument signed by the parties, and the amendment thereto subsequently made, contained numerous stipulations intended to carry out tlie object proposed; and ail have apparently been executed, save one, which is tlie subject matter of this controversy. That feature of tlie contract is in the following words :

VL
“Mutual Agreement to “Pool” New Orleans and Galveston Traffic, and- -not to Discriminate Against Mississippi Termini.
“ It is further mutually agreed, that all unconsigned business, meaning all business whereof tlie route has not been designated in advance, destined for points West of El Paso, received by the said Texas and Pacific Kailway Company, shall be turned over to the Galveston, Harrisburg and San Antonio Railway Company at tlie Junction, or to tlie Southern Pacific Railroad Company at El Paso, as the case may be ; and all stick ‘ unconsigned ’ business received by the Southern Pacific Companies and destined to places east of the ‘Junction’ reached by the Texas and Pacific Railway and its connections north of Shreveport, La., and west of the Mississippi River, shall be delivered to the Texas and Pacific Railway Company at the ‘Junction,’ or at El Paso, as the case may be. The gross earnings on all business passing over either of these roads between El Paso,'or the Junction, and New Orleans, shall be divided equally; and tlie gross earnings on all business passing over either of these roads between El Paso or the Junction, and Galveston, shall bo divided on the basis of two-tliirds thereof to the Gaveston, Harrisburg and San Antonio Railway Company and its connections, and one-third thereof to the Texas and Pacific Railway Company and its connections; and tlie agents are to divide, as nearly as possible, such business between the two through lines, so that each shall do the proportion of business above allotted.
“ In the event that either of the said companies of the one party, at either of the termini herein mentioned, shall be unable, or shall neglect or refuse, for any cause, to take the business and to perform the said service in the proportions above named, the company or companies of the other party shall be at liberty, so long as such disability continues, to take such business and perform said service, and shall be entitled to receive the compensation therefor.
“ The Texas and Pacific Railway Company, the Missouri Pacific Railway Company, the Missouri, Kansas and Texas Railway Company, the S't. Louis, Iron Mountain and Southern Railway Company, the International and Great Northern Railroad Company, and the Galveston, Houston and Henderson Railroad Company, shall severally take the through business auy of them may have to do under this agreement, between El Paso and any point on the Mississippi River, without any discrimination as to rate, or otherwise, in favor of auy line, road, or Transportation Company, and with equal dispatch'; and this provision applies to business destined to or coming from any railroad east of the Mississippi River. ' '
“ There shall be no discrimination as to local business by any of the roads of either of the parties as against tiróse of tlie other party; it being understood that the term ‘through business,’ as used in this agreement, applies to traffic carried to and from terminal, common or competitive points; and any point upon the lines of the railways of the parties hereto that may be reached directly or indirectly by any railroad competitive to either of saicl roads, is understood to be a competitive point.”

The amendment of February, 1835, in so far as this section of the contract is effected, provides a different mode of dividing the earnings ; it also extends the traffic covered by the agreement to all the business between New Orleans and El Paso on the one hand, and Galveston and El Paso on the other, whether the traffic originated at these points or not.

Among other stipulations, which have no bearing on the issues herein involved, the amendment contained the following modification :

It is a part of the agreement of the parties hereto that in consideration of the premises, the said party of the second part and his associates, and the companies on whose behalf he executed the said agreement of November 26th, 1881, release the said party of the first part and Ids associates, and the companies on whose behalf he executed such agreement, from all claims down to November 1st, 1884, arising under Article VI of said agreement.”

Plaintiff’s demand is based exclusively on the section herein above transcribed, and embraces three separate claims growing therefrom. Its object is to recover the excess of earnings realized by the defendant company from the first of November, 1884, to March 31,1887, alleged to amount, as shown by defendant’s reports made from month to month during that space of time, to the sum of $350,717 78; a similar excess alleged to amount to $200,000, from March 31, 1887, to January, 1888 ; during which time the defendant made no report, the defendant having ceased and refused to further report or account after March, 1887 ; and it urges an additional claim of $5859 49 for an excess of earnings in its favor in the operation of certain lines of railroads in New Mexico and Arizona, thus footing up the claims at the aggregate sum of’$556,577 27. And plaintiff’s demand finally covers such additional claims growing out of the contract in suit, as may be discovered and ascertained on trial.

For defence the following exceptions were pleaded :

1st. That the contract sued upon, being a railway pool, between competing railroad companies to divide between them their earnings from competition traffic, is illegal for the reason that it is injurious to public interests and contrary to public policy; and hence it cannot be enforced by a court of justice.

2d. That the contract was forbidden by the provisions of the constitution of the State of Texas, in force at the time that it was entered into.

3d. That if ever valid, the contract was terminated by the provisions of an act of the Congress of the United States, approved February 4, 1887, eu titled “ An act to regulate commerce,” which went into effect on the 3rd of April, 1887, and is generally known as the “ Interstate Commerce Act.”

The judgment below was in favor of defendant and plaintiff appeals.

A point, which overshadows the discussion of all three of the exceptions, is made by plaintiff's counsel, who contend that the agreement between the parties haying been sanctioned by a decree of the courts in which the litigation adjusted between the railroad companies, was pending, it has now acquired the force and effect of the thing adjudged, and hence it cannot be attacked collaterally.

As a general proposition of law the contention is unquestionably correct. Civil Code, Art. 3078; Adle vs. Prudhomme, 16 Ann. 343; Raburn vs. Pierson, 23 Ann. 696; Oglesby vs. Attrill, 105 U. S. Reports. But from the very nature of the principle, as shown by the authorities cited, it appears clearly that those matters only which were covered.by, and included in, the compromise or agreement, are affected as things adjudged, as a result of the adjustment, even when the same is subsequently sanctioned or confirmed by the judgment of a competent court.

The rule invoked applies to matters of pre-existing differences which are settled and compromised, and not to agreements or covenants for future action and execution.

Undoubtedly the attempt of either party to the “Gould-Huutington” agreement to avoid collaterally the effect of the adjustment of any contentious matter, or of any litigious rights involved in litigation hitherto pending and which had been in terms settled by the compromise, would have been defeated by the simple application of the principle now under consideration. But the subject-matter of Article 6 of the agreement which is now in suit was not a subject of contention between the par ties, either as a difference or in the shape of any pending litigation, at the time that the agreement was entered into. In fact it had no existence before, and was only brought into being or life by the contract of November 26, 1881, and it had no reference to the past, but its whole operation or effect was intended exclusively for the future.

This was manifestly the understanding of all the parties at the time; it shaped the action of their counsel who thereafter invoked judicial confirmation of the adjustment; and it was the sole guide of the court when it rendered the decree now set up as res adjudieata, touching all matters and stipulations contained in the “Gould-IIuntington” agreement.

In formulating its decree, the court was careful to enumerate in detail all the litigious matters which were in suit between the several railroad companies, which had participated in. the adjustment and which were parties to litigation then pending before the court; and it requires no argument to show that no other matters or stipulations in the agreement were in any way or degree affected by the judgment then rendered. To clear away any doubt which might thereafter exist or be suggested as to the precise meaning, bearing, intent and effect of the judgment rendered, the court made the following explanation of its own decree, as part of said decree:

“The aforesaid decree is made to carry out the provisions in this behalf of said agreement, dated November 26, 1881, which is hereby made a part of this decree, and by consent of the parties, and upon consideration by the court, is hereby ordered and decreed to be binding upon each and all of the parties hereto in all its stipulations and agreements, as therein shown, and said decree does not otherwise affect or interfere with the provisions of said agreement.'' (Italics are ours.) Hence we conclude and we hold that the stipulations of Article 6 of the “ Gould-Huntington agreement” have not the force-and.effect of the thing adjudged, and that they are lawfully liable toattack in the mode and manner herein adopted by the defendent corporation. This conclusion is of course mainly predicated on the theory fairly deducible from the record itself, that the agreement in its entirety does not evidence a single and connected contract, depending on all its .parts and stipulations for a proper execution as an effect flowing from the'unity of the contract; but that the instrument in its shape was used as a means to facilitate the execution by two representatives of numerous obligors and distinct obligees of a series of varied and distinct contracts. As controlling and representing the varied interests of a cluster of railroad companies, Huntington acted in behalf of the following corporations: “ the Southern Pacific Railroad Company of California, the Southern Pacific Railroad Company of New Mexico and the Southern Pacific Railroad Company of Arizona, the Galveston, Harrisburg and San .Antonio Railway Company, the Texas and New Orleans Railroad Company and the Louisiana Western Railroad Company.” And Gould, clothed with corresponding authority from his system of roads, stipulated in behalf and in the name of the following companies: “ The Texas and Pacific Railway Company, the International and Great Northern Railroad Company, the Missouri Pacific Railway Company, the Missouri, Kansas and Texas Railway Company, and the St. Louis Iron Mountain and Southern Railroad Company.”

In this connection, the record shows to our entire satisfaction that the parties themselves did not understand that the instrument was intended to evidence a single connected contract, as ajipears from tlie following stipulation :

The foregoing agreement shall be submitted by the respective parties thereto to tlie several Boards of Directors which they respectively represent, and tlie same shall be accepted, adopted, ratified, confirmed, made and declared by said several Boards of Directors to be the act and contract of their respective corporations, so far as the same affects them reapectively; ”

And the same understanding appears in yet bolder relief from the language used iu the following clause :

It is understood that either or any of the said several railroad companies, parties to this agreement, may maintain any action, either at law or in equity, against, either, any or all of the other companies, parties to this agreement, to protect any right secured by this agreement, to specifically enforce the same, or to recover damages for the breach of any stipulation in this agreement affecting its interests, and that no objection shall be had or taken to any sacii action by reason of the nonjoinder of parties as plaintiffs; and all clauses in this agreement, contained are to be so construed as to secure this right.” The parties have thus construed their own contract, and have themselves qualified their agreement in a manner which completely refutes tlie argument of plaintiff’s counsel in tlie present case.

Tt'is true that by the act of incorporation, in 1881, which created the defendant company in its present autonomy, all tlie corporations which were then represented by Huntington, with the exception of the Southern Pacific Railroad Companies of California, of Arizona, and of New Mexico, have all been fused into, and were made parts of, tlie same system known as tlie “ Southern Pacific Company.” But this does not alter the nature and legal effect of the original contract as executed and understood by the original parties to tlie agreement.

That it was so understood is made manifest by a clause inserted in the amendment of the agreement under date of February 18, 1885, which stipulates, as was done in the original contract, that the modifications then made were to be submitted for adoption'and ratification, to the respective boards of directors of the companies represented respectively by Huntington and by Could.

We feel, therefore, fully warranted to treat and discuss article 6, now in suit as a complete and independent contract, with a sole consideration, which was the mutual advantage to he derived therefrom by tlie companies to he affected thereby. The clause or contract as shaped, lias reference to no other ijortiou of the agreement, which is complete for the purposes originally contemplated without the contract contained in that clause, as complete as the contract formulated in the section stands without any reference to any or all of the other portions of the agreement. In discussing that article we have therefore no concern with any of the concessions made mutually by the parties to the agreement, as considerations for other matters specified, or other advantages yielded, or obtained, by the parties respectively in other portions of the agreement.

We shall now discuss the real nature and the legal effect of the contract evidenced by Article 6 of the^Gould-Huntington ’’ agreement.

It appears from the record, including evidence taken on the trial of the exceptions, that the systems of railroad companies made parties respectively to the jn’oposed arrangement, had each a through and complete line of communication, absolutely independent of each other, except as hereafter stated, from El Paso to Galveston, and from El Paso to New Orleans, the points of traffic for which the earnings of the contracting parties were to be divided. Prom El Paso to New Orleans the Texas and Pacific, plaintiff herein, liada continuous line of communication of itself, and from El Paso to Galveston, its means of communication were by its own line from El Paso to Minóla, and thence by the International and Groat Northern Railroad Company, connecting with the Galveston, Houston and Henderson Railway Company, two of the companies controlled and represented by Jay Gould.

The communication of the Southern Pacific, defendant herein, between El Paso and Galveston was by means of the Galveston, Harrisburg and San Antonio Railway Company and the Galveston, Houston and Henderson Railway Company, and its means of communication between El Paso and New Orleans were through the lines of the Galveston, Harrisburg and San Antonio, the Texas and New Orleans, the Louisiana. Western and the Morgan’s Louisiana and Texas Railway Companies, all then controlled by Huntington and now parts of the Southern Pacific system . The only parcels or portions of the through lines between either of the three points of traffic, used in common by the two systems, are a line of ninety miles east of El Paso and a short line between Galveston and Houston, and the rights of the parties to the use of these two lines were secured in the agreement of November, 1881, in two separate and distinct stipulations outside, and entirely and safely independent of Article 6, now under discussion. There is no contention here as to the free exercise of that right.

Now, as at certain points, both in Texas and in Louisiana, it appears that the respective lines of the plaintiff’s and of the defendant’s systems of roads are very far apart, there is no pretention that they are parallel roads, but from the record as shown by the foregoing statement, it appears very clearly that for the traffic between El Paso and New Orleans and between El Paso and Galveston, they were unquestionably competing lines.

It cannot be doubted that shippers who desired, without the existence of the agreement contained in Article 6, to consign goods either from El Paso to New Orleans, or the reverse, or from Galveston to El Paso, or the reverse, had the option to select either of the two lines in accordance with the most favorable terms which he could obtain from either. He would then have had the advantage of the natural competition existing between the two rival S3stems. But under the effect of the arrangement now under discussion, the shipper could desire no advantage as a result of his choice between the two, as the terms would be the same with either or both.

It is, therefore, too clear for further argument or illustration that the first, the lasting and the inevitable result of the agreement to the public was to stifle competition, and as competition is the life of trade, the effect of the contract must necessarily and inevitably have been injurious to public interests, and hence it was contrary to public policy.

We have been at great pains, and have devoted long and tedious labor to examine all the authorities, consisting mainly of opinions rendered on this point by courts of last resort in this country, which were submitted to us by counsel in this case, and we reach the conclusion that American jurisprudence has firmly settled the doctrine that all contracts which have a palpable tendency to stifle competition, either in the market value of commodities or in the carriage or transportation of such commodities, are contrary to public policy, and are, therefore, incapable of conferring upon the parties thereto any rights which a court of justice can recognize or enforce. A reference to some of the leading and most pointed authorities on the subject may not be out-place in this opinion, noth withstanding its already formidable length.

In the case of Hooker vs. Vandewater, 4 Denio, p. 349, the court had to consider a contract between the proprietors of several lines of canal boats, who had agreed to establish fixed rates of freight and passage for a certain season and to divide the net earning's among themselves according to fixed rules. The attempt of one of the contracting parties to enforce the agreement against a recalcitrant member of the combination was discountenanced. True, the contract fell under the ban of a special statute of the State; but the court, nevertheless, took occasion to sanetion the general principle which underlies our conclusions in this case» The court said:

• “It is a general proposition that an agreement to do an unlawful act cannot he supported at law — that no right of action can spring out of an illegal contract; and this rule applies not only when the contract is expressly illegal, hut whenever it is opposed to public policy, or founded on an in.nuual consideration — the maxim being evrturpi cansa non oritur actio.”

In the case of Stanton vs. Allen, 5 Denio, p. 434, the court refused its aid to enforce the payment of a promissory note growing out of transactions predicated on a similar contract, on the ground that such a contract cannot receive judicial sanction. We cull the following' language from that opinion : “Though the branch of the law relating to public policy is liable to bo misunderstood and extended beyond its proper dimensions, still it must not on that account be neglected or disparaged. The rule that contracts and agreements are void when contrary to public policy, when properly understood and applied, is one of the great preservative principles of a State.”

And referring to the case herein previously quoted,- the court said: “That decision being conclusive on the main point in the present case, I might have rested upon that authority alone, if I had not supposed that the occasion called for an opinion as to the legality of such an association upon the principles of the common law.”

In Ohio an association of salt manufacturers entered into a combination for the purpose of selling and transporting that commodity. The court refused its aid to enforce its conditions, saying among other things:

“ The clear tendency of such an agreement is to establish a monopoly, and to destroy competition in trade, and for that reason, on grounds of public policy, courts will not aid in its enforcement. It is no answer to say that competition in the salt trade was not in fact destroyed, or that the price of the commodity was not unreasonably advanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public ; it is enough to know that the inevitable tendency of such contracts is injurious to the public.” Salt Company vs. Guthrie, 35 Ohio, 666.

The doctrine finds additional support and sanction from the following authorities:

Gibbs vs. Baltimore, 130 U. S., p. 408, in which the court took occasion to set down a rule peculiarly applicable to pooling arrangements between competing railroad companies, which are universally recognized and treated in jurisprudence as quasi public corporations. The learned Chief Justice, as the organ of the court, said with great clearness and terseness:

“Hence, while it is justly urged that those rules which say that a given contract is against public policy should not be arbitrarily extended so as to interfere with the freedom of contract * * *, yet in the instance of business of such character that it presumably cannot be restrained to any extent whatever without prejudice to the public interest, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy.”

See also: Woodstock Co. vs. Extension Co., 129 U. S., 644; Morris vs. Barclay, 68 Pa. State, 173; Arnot et al. vs. Canal Co., 68 N. Y., 558; Craft vs. McConoughty, 79 Ill., 346 (22 Am. Reports, 71); Morrill vs. R. R. Co., 55 N. H., 537; Jackson vs. McLean, 36 Federal Reporter, 213; Santa Clara vs. Hayes et al., 18 Pacific Reporter, 392; Hamilton’s note, 15 Federal Reporter, p. 667.

We are referred by plaintiff’s counsel to several authorities which are quoted as antagonizing the views which we have adopted in this opinion. But we have not found any decisions emanating from American courts of last resort which have enforced or recognized any rights flowing from a contract which had a tendency to stifle competition in trade, or in the business of common carriers, or which were for other or similar reasons contrary to public policy. The adjudications which have sustained contracts assailed on similar grounds are predicated on facts which removed each particular case from the operation of the rule, for the simple reason that “cases must be judged according to their circumstances, and can only be rightly judged when the reason and grounds of the rule are carefully considered.” 20 Wal., 64, 68.

Under our own system, the doctrine is not only sanctioned by judicial authority, but it has been specially incorporated in our code, in its wide range of remedies for wrongs and enforcement of rights.

Article 1893 reads: “An obligation without a cause, or with a false or unlawful cause, can have no effect.”

Article 1895 provides: The cause is unlawful when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order.”

In the case of Firemen’s Association vs. Berghans, 13 Ann., 209, the principle was formulated thus: “When a contract belongs to a class which is reprobated by public policy, it will be declared void, although in that particular instance no injury to the public may have resulted.”

The case of the India Bagging Co. vs. Kock, 14 Ann., 168, involved an attempt to judicially enforce one of the conditions of an association formed by dealers in bagging, who had agreed not to sell any bagging for the term of three months, without the consent of. the majority of the members, under a stipulated penalty. In dismissing the action, the court used the following language:

This is a case which ought never to have come before us. The agreement between the parties was palpably and unequivocally a combination in restraint of trade, and to enhance the price in the market of an article of prime necessity to cotton planters. Such combinations are contrary to public order, and cannot he enforced in courts of justice.”

See also: Glasscock vs. Wells, 23 Ann. 517; Cummings vs. Saux, 30 Ann. 207.

Our ruling on this point is fortified in a double panoply, furnished by civil as well as common law authorities.

Plaintiff’s counsel, however, make the point that were they to concede, for the sake of argument that the contract sued on might he against public policy, yet in so far as it has been executed, plaiutiffs are entitled to recover.

The argument is predicated mainly on the fact that from month' to month, between November, 1884, and March, 1887, the defendant liad executed its obligation under the contract by submitting reports of its earnings, by which it appeared that it was indebted to plaintiff in the sum of $350,717 78, and that by pleading a peremptory exception, the defendant admitted an additional indebtedness on the same basis, of $200,000.

A proper understanding of the considerations which underlie our conclusions herein previously announced affords a ready answer to this con tent-ion.

The rule is that no effect can ho given to a contract reprobated by law, or contrary to public policy — and hence courts cannot lend their aid even to secure an otherwise fair division of the results of an illegal contract between tlie parties thereto.

In cases like the present, in refusing to enforce the stipulations of a contract which has the palpable tendency to stifle competition, or to create or foster a monopoly, courts •will not go to the extent of decreeing the nullity of the contract sued on, but they simply abstain from dealing with it, or from discussing any of its effects as between the parties. On ascertaining that the building is infested with the disease of illegality, the judge simply refuses to enter its portals,-and he retires without incurring contact with any of. its inmates, and without attempting to examine into, or to rectify, any rights or wrongs which may exist between the inmates of the polluted household. ITe leaves them quietly where they have placed themselves, and he turns a deaf ear to any equities which one of the parties may invoke against the other.

It is on this principle that hy far the greater number of the decisions here in above quoted were grounded.

In the case of Gibbs vs. Baltimore Gas Co., 130th U. S., p. 396, the court refused its aid to a party who claimed a stipulated commission for having negotiated a favorable contract for the gas company, on the ground that the contract was illegal.

The court expounded the general principle as follows : “ The rule of law is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an unlawful contract.”

There is no conflict between the law of that case, and the legal conclusions announced in the case of Brooks vs. Martin, 2 Wallace, p. 70, on which plaintiff’s counsel mainly ground their hopes of success on this point.

Brooks and Martin li ad forailed a partnership for speculation in soldiers land warrants, which had been forbidden by an Act of Congress. Brooks who had the exclusive management of the firm’s business, acting as the agent of his co-partner, subsequent^ bought out the latter’s interest in the concern. To a suit brought by Martin to avoid the sale on the ground of fraud on the part of Brooks, the illegality of the original dealings of the firm was pleaded. But the court held that the illegality of the original contract was not a bar to Martin’s recovery, as his claim did not involve the nature of said contract. The following clear distinction between a cause of action on the original contract, and that on the rescission of a sale tainted with fraud, is a fair answer to plaintiff's reliance on that case.

“We have no doubt that the traffic was illegal. Undoubtedly the main object of the act of February 11, 1847,'was to protect the soldier against improvident contracts of the, precise character of those developed in this record. * * * If a soldier who had thus sold his claim to Brooks, Field & Co. had refused to perform his contract, or to do any act which was necessary to give them the full benefit of their purchase, no court would have compelled him to do it, or given them any relief against him. And if they had, by any such means, got possession of the land warrant or scrip of a soldier, no court would have refused, in a proper suit, to compel them to deliver up such land warrant or scrip to the soldier. Or if Brooks, after signing these articles of partnership had said to Martin, “ I refuse to x>roceed with this partnership, because the purpose of it is illegal,” Martin would have been entirely without remedy. If, on the other hand, he had said to Martin, “■ I have bought one hundred soldiers’ claims, for which I have agreed to pay a certain sum, which I require yon to advance according to your agreement.” Martin might have refused to comply with such a demand, and no court would have given either of his partners any remedy for such refusal.”

This is precisely the legal attitude occupied by the parties in this controversy.

In an illegal contract, the defendant herein had agreed and covenanted to pay over to plaintiff any pool balance to which the latter was entitled under the arrangement to divide their joint earnings in the traffic between El Paso and Galveston, and that between New Orleans and El Paso. It has acknowledged the existence of such a balance; hut when called on to deliver the same, it refuses, and sets up the illigality of the contract under which it was obtained. The answer of the court must he that plaintiff, urging a claim based exclusively on an illegal contract, is without remedy.

Having concluded that the contract sued on was illegal as 'contrary to public policy, we see no necessity to discuss the two other grounds of exception set up by the defendant.

Judgment affirmed.


text:
    No. 10,293.
    Adeline E. Stringer vs. Louis Mathis.
    1. A woman who keeps a room in he? house to bo visited and occasionally occupied by lior concubine, without any contract for the payment of rent by the latter, cannot enforce such payment.
    2. The evidence in this case satisfying us that the services for which payment is claimed, had no other motive than the pre-existing concubinage of the parties and were merely incidental to such relation, the plaintiff cannot claim remuneration therefor.
    3. The evidence showing that there was no intention on the part of plaintiff to claim, or of the concubine to make, any payment of rent, or for services, no obligation to pay was created, especially when it appears that plaintiff received,, in other ways, a pecuniary quid pro quo for the benefits conferred.
    APPEAL from the Cml District Court, for the Parish of Orleans. Voorhies, J.

      Branch K. ]\fitter for Plaintiff and Appellant.

      JJenrtj P. Dart for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Joseph Mathis, a bachelor, died on April 1st, 1887, leaving an estate of about $20,000, which was inherited by the defendant as his sole legal heir.

The plaintiff, a lodging housekeeper in this city, claims $1644 90 for room rent due by Joseph Mathis from May 1st, 1884, to the date of his death, and $500 for services rendered to him as a siok-nurse during the same period.

The defenses are a general denial and the special defense that plaintiff had, for many years been the concubine of Joseph Mathis, and that he had, on that account, expended large sums of money in her behalf; that, he visited her house during the time for which remuneration is claimed solely for the qmrposes of such concubinage, and that, if the room was retained for him, it was solely for that purpose.

The evidence leaves not the slightest doubt upon our minds as to the relations existing between plaintiff and Joseph Mathis. They were those, of concubines.

Prom 1867 to 1878 Mathis lived in the house kept by plaintiff.

In 1878 he desired to break off liis open relations with plaintiff, in order to retain relations with his brother, and, from that time, he roomed and boarded elsewhere. Nevertheless he continued to make regular weekly visits to the house of plaintiff, spending there Saturday night, Sunday and Sunday night. It was on these occasions that he occupied the room for which rent is claimed, and which was undoubtedly, retained for his occupancy and not rented to others. We are satisfied that the sole motive of the visits or occupancy of the room by Mathis and of its retention by plaintiff was the relation of concubinage existing between them. What other motive does the evidence suggest ? He had his room elsewhere which he paid for and occupied. Why did he want another room ? It is suggested that he wanted it in order to receive the care of plaintiff as a nurse. But did he only require nursing on Saturday and Sunday nights"? He went without nursing during the rest of the week.

There is no pretense that there was any contract that he should pay rent for the room. If there was such a contract it might be that the concubinage would he no defense.

That he did not pay rent for the room is evidenced by this suit.

If the plaintiff can recover it must be on the ground that there was an implied contract on the part of plaintiff, resulting' from his occupancy.

But are we to hold that that woman or man who keeps a room in his or her house to be visited occasionally and occupied by a concubine, without any contract to pay rent, can claim or enforce such payment?

The cases cited by plaintiff clearly exclude such an allowance.

In Viens vs. Brickell 8, Martin 11, the court overruled a defense of concubinage, hut the opinion said, after admitting the fact of concubinage : This, however, does not seem to have been the motive of their coming together, but rattier the consequence of the familiarity which a close union of interest is apt to create between persons of different sexes. We, therefore, cannot view this circumstance as preventing or destroying any right which she may have on defendant for a remuneration, etc.” Clearly implying that had the concubinage been pre-existing and been the motive of their coming together, the defense would have been good.

In succession of Perenilhet 23d Ann. 294, the court said : An employer cannot pay off a female employee by robbing her of her virtue. Such a method of extinguishing obligations is not known to the law. If concubinage had been proved to have been the cause and motive of the parties living together in the same house in the first instance, and the services in question to have been merely incidental to such a state of living, our conclusion might have been different.”

The evidence in the case fully convinces us that there was no intention on the part of plaintiff to require, or of Mathis to make, any payment for the occupancy of the room or for services. It further satisfies us that Mathis did not enrich himself at plaintiff’s expense, but on the contrary, that he gave in other ways, a pecuniary quid pro quo for all the benefits received from her. The plaintiff failed to testify in her own behalf, and if she might, by her testimony, have strengthened her claim, its absence is her own fault. As it stands on this record, we agree with the judge a quo that it is not sustained.

We have not discussed the conflicts in the evidence, but we have carefully considered and weighed them, and have contended ourselves with announcing our conclusions.

Judgment affirmed.