author: McEnbry, J.

text:
    No. 10,909.
    Succession of Joseph Llula.
    -A wife wlio three weeks after marriage rleserts her husband, and in the same community forms an adulterous relationship with another, can not, being in bad faith, maintain the status of a married woman.
    She can not claim her interest in the community as the widow in community.
    She has only the rights of a concubine, and can only recover from the estate of the deceased, when the concubinage was incidental and not the motive or cause for the illicit connection, for her personal services as domestic or nurse, or for her industry when it has enriched the estate, or for the capital and property she furnished in any enterprise undertaken by the deceased and her profits in the same.
    The contract of marriagemay be proved by any species of evidence not prohibited by law which does not presuppose a higher species of evidence within the power of the party, and cohabitation and the reputation of man and wife are presumptive evidence of a preceding marriage.
    Rut presumption arising from facts which tend to establish the solemnizing of th'e contract of marriage is not conclusive, but subject to be rebutted by testimony negativing the fact of marriage.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. S. Benedict for Plaintiff and Appellant.

      A. L. Tissot and Henry P. Dart for Defendant and Appellee.
   The opinion of the court was delivered by

McEnbry, J.

Mary Ann Whitlow brought suit against this succession, alleging in her petition, that she is the owner of one-half of the property in the estate of the late Joseph Llula,together with other rights And claims in said succession. She alleges as the basis of her claim to the property in said succession, that when a minor, under the age of 20 years, she was induced by the representations of Llula to contract with him, and that she was made to believe and consider that she was his wife, and that she lived with him as such thereafter for twenty-eight years,, and as his wife bearing to him two children, both ■of whom died in infaney; that she maintained his household, controlled his personal affairs, and, educating herself, he being illiterate, ■she conducted his business affairs to within eighteen months prior to Ibis death; that during said time she was known, recognized and respected as his wife, and was introduced by him as his wife, and still bears his name and is looked upon as his late wife, and is regarded as his widow; that she took care of and educated certain children of' the deceased, who were illegitimate; that the entire real and personal effects now standing in the name of said Joseph Llula, was taken possession of by his daughter LQuisa, wife of Manuel Suarez Miranda, the same being the entire property acquired during the-existence of the community arising from the effects and business and marriage between the said Joseph Llula and herself. She asserts her rights as the widow in commnnity.

In addition she avers that she,- during the existence of the marriage with Llula, bought a lottery ticket in the Havana Lottery with her paraphernal funds, which drew a prize of $10,000, which she delivered to said Llula, and which he used for his own personal advantage, and for which she also makes demand.

There were exceptions filed which were overruled, but resulted in an order for the petitioner to amend her petition, so as to make her demands more explicit. After complying with the order of court,, and perfecting her petition, the defendant filed another exception which was also overruled, and, in our opinion, correctly. The defendant answered, pleading a general denial. The plea of prescription of three, five and ten years was filed by the defendant. There-was judgment for the defendant, and the plaintiff has appealed.

The facts in the case are that the plaintiff was a married woman when she went to live with Llula.

She was married to one Dunker, and three weeks thereafter took up with Llula. Her husband was living in New Orleans at the time, and only a short distance from the house where she lived with Llula.

Her husband afterward joined the Confederate Army, and it is believed was killed or died in the service of the Confederate government. He never, after he joined the army, returned to the city of New Orleans. Llula lived with the plaintiff until three and a half' years before he died.

After his separation from her he paid her regularly five dollars per week. This amount was paid to her regularly until provision was made for her by the universal legatee under the will.

She lived with Llula as wife, and he provided for her as such as liberally as his means would permit. She brought no money or property to the establishment, and there is no proof that by her industry she aided and assisted in the acquisition of property. It makes no difference, however, in what light he regarded the relations between him and plaintiff. The law considers marriage in no other view than as a civil contract. Article 86, Oivil Code. 14 An. 770.

But it is a contract which must be solemnized according to the rules which the Code prescribes.

Like all other contracts, it may be proved by any species of evidence not prohibited by law, which does not presuppose a- higher species of evidence within the power of the party, and cohabitation and the reputation of man and wife 'are presumptive evidence of a preceding marriage. 2 An. 944; Succession of Hubee, 20 An. 97.

But presumption arising from facts which tend to establish the solemnization of the contract of marriage is not conclusive, but is subject to be rebutted by testimony negativing the fact of marriage. 15 An. 46; 7 An. 252.

The plaintiff and her alleged husband entered into an adulterous connection, and the relation between the parties was such that no marriage could have been contracted between them when they first assumed this relationship to each other. The fact that the husband died during this illicit connection can not give a character to it which it did not have when it was first formed. It continued as it had begun. The fact that he treated the plaintiff as his wife and introduced her as such in the community could not destroy or do away with the actual truth of their relationship, nor could it remove from the plaintiff the knowledge that she was a married woman when she deserted her husband and went to live with Llula. She was not in good faith, as she knew that her husband was living and that she could not become the wife of Llula. It was not possible for her to be imposed upon. She was his concubine and can assert her rights only in that capacity. When the relationship of concubinage is incidental, and is not the motive and cause of the parties living together, the concubine can recover from the estate of the deceased, if it has been enriched by her industry. There is a quasi contract on the part of the deceased to make compensation. Succession of Pereuilhet, 23 An. 294; Delamour vs. Roger, 7 An. 152.

The relationship of concubinage does not prevent the concubina from demanding a settlement of the affairs during its existence, and' a participation in profits derived from capital and labor which sha contributed, although the property is immovable and stands in the name of the deceased. >

The plaintiff did not contribute in capital and labor to the acquisition of the property left by the deceased. The adulterous connection was the motive and prime cause of the concubinage.

She was in fact the mistress of Llula, although he seems to have provided liberally for her as wife and respected her as such.

After the death of Llula, on July 17, 1888, an agreement was made by plaintiff and Louisa Suarez, the universal legatee and heir of Llula, by which the plaintiff received certain property of the succession for services rendered the deceased, as a gift and gratuity, in full for all claims against the succession.

She has been placed in possession of this property, and has collected the rents. Alleging that the universal legatee and heir has failed to comply with it, she rejected it and brought this suit. The legatee has not been put in default, and no demand has been made for the execution of the deed to the property. This agreement is a complete estoppel to plaintiff’s demand.

During the time 'plaintiff and Llula were living together, Llula purchased and gave to plaintiff a lottery ticket in the Havana Lottery which drew a prize of 810,000, upon which was realized $2500. This ticket Llula collected, and used the money. He collected the money in September, 1874. The relation between the parties was not that of husband and wife, and prescription was not therefore suspended. The prescription pleaded by defendant must therefore prevail.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,805.
    City of New Orleans and Orleans Levee Board vs. New Orleans & Northeastern Railroad Company.
    Specific performance of a contract can not be demanded as an absolute right, as it rests largely in the discretion of the court, to be exercised in strict conformity to equity and justice.
    The contract must be fixed in its terms, and the -liability of the defendant so certain that the duty imposed upon him by the court in ordering the execution of the contract can be readily ascertained and as readily executed.
    A decree of specific performance will not be granted when the plaintiff can be adequately compensated in a suit for damages.

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

      Bernard MeQloskey, Attorney for the Levee Board, and Carleion Hunt, City Attorney, for Plaintiffs and Appellees:
    1. 3$oth parties to the suit being citizens of Louisiana, it can not be removed unless there is some Federal question involved. Conceding that defendant’s charter is a protected contract in the sense of the United States Constitution, and that the ordinance sought to be enforced is such a law as will impair its obligations, yet the facts do not contain such contention. State ex rel. City of Xew Orleans vs. N. O. & N. 35. R. R. Co., 42 An., p. 11.
    The mere allegation that the rights claimed by the petitioner herein impair the obligation of the charter contract is not a ground for the removal of the cause to the Federal Court. Dillon on Removal of Causes, pp. 73 and 74.

    2. Parties can be joined as plaintiffs where there is an identity of interest in the subject matter. 15 An., p. 31; Cross on Pleading, p. 13; Martin X. S., p. 608; 6, Martin X. S., p. 112.
    All parties interested in the subject matter should be made parties.
    3. An action for specific performance will lie to compel a defendant who lias contracted to build a levee upon plans and specifications to be furnished by the city surveyor upon failure to do so. Arts. 1926 and 1927, C. 0.; Lavigne vs. Michel, 35 An.,p. 1127; Bowles vs. Wilcoxen, 2 An., p. 761; State ex rel. City of Xew Orleans vs. X. O. & X. 35. R. R. Co., 12 An,, p. 12; Mobile County vs. 3vendall 102 U. S. 713.
    1. Ordinance 7183 contains rights and franchises not included in Act Xo. 106 of 1871. The paving of a portion of the streets and building of a levee for the benefit of the parish of Orleans is a valid consideration for the privilege granted by the ordinance, and does not impair the obligation of the contract; and the imposing of an obligation, to do such work does not impair the obligation of the charter contract, or violate Article 1 of the Constitution of the United States.
    5. The proposition as well as the assent to a contract may be expressed or implied. Art. 1811, C. C.
    The enjoyment by defendant of the benefits conferred by Ordinance 7183 unequivocally manifested the intention to accept the terms of the ordinance. C. C., Art. 1816.

      Harry H. Hall for Defendant and Appellant:
    I.
    REMOVAL.
    "Where the legislative act of incorporation of a railroad company authorizes it to lay its tracks into a city, an ordinance passed by that municipal corporation imposing upon said railroad an onerous condition upon the exercise of its charter right would, if enforced, impair the obligation of a contract, and be violative of the Federal Constitution.
    A charter authorizing the building of a railroad to a city named imports the power to extend the road within the city limits. 15 Texas, 88. Private charters are held to be contracts. Cooley Const. Limitations, 337.
    Municipal ordinances have the force and effect of acts of the Legislature. Dillon Mun Corp. 1, p. 323; 96 IT. S. 432.
    If it appears that some title, right, privilege or immunity on which the recovery depends will be defeated by one construction of the Constitution or sustained, by the opposite construction, the case will be one arising under the Constitution of the United States, and should be removed to the Federal Court. 118 U. S. 1123; 115 U. S. 257; 102 U. S. 141; 100 U. S. 264; 96 U. S. 433; Desty on Removal, p. 57; 3 Woods, 222.
    II.
    SPECIFIC PERFORMANCE.
    Ordinance 7488 imposes the obligation to build an embankment on Florida walk, only in case of the construction of a railroad on that street.
    Specific performance should never be granted unless the terms of the agreement sought to be enforced are clearly proved, or where it is left in doubt whether the party against whom relief is asked in fact made such an agreement. 128 U. S. 442; 2 Wh. 341; 14 Pet. 83; 11 Yes. 591; 14 Minn. 72; 1 Md. Oh. 116.
    In order to obtain the specific performance of a contract, its terms should be so precise that neither party can reasonably misunderstand them.
    The Code ÜSfapoleon does not contain any provision for the specific performance of any obligation, but leaves the party to a remedy solely of damages. Duranton, Yol. 10, p. 436.
    Civil Code 1927 (1921), provides that specific performance can only be had where damages would be an inadequate compensation, and where the party has power of performing the contract.
    In the case at bar damages would be adequate compensation to the city of Kew ‘ Orleans, for it could either do the work itself, and sue for the costs thereof as liquidated damages, or could, as has been the custom of the city from time immemorial, adjudicate the performance of the work, with subrogation to a contractor, and allow him to recover from the railroad.
    The construction of works of magnitude will not be specifically enforced by the court, nor conducted under its supervision. Woods Ry. Law, 1171, Sec. 528; Green Brice on Ultra Yires. 468; 128 U. S. 488; Waite’s Action and Defences, 5, p. 768; Morawitz on Corporations, 2 Par., 1134-5-6; see, also, 9 An. 514; 37 An. 589; 35 An. 1126.
    The railroad company has not the power, under its charter, to perform this work.
    III.
    UNCERTAINTY.
    Ordinance 7483, if it imposes anything, imposes an obligation to continue an existing embankment. This suit can not be maintained if, instead of attempting to show the dimensions of the embankment, suit is brought to compel the excavation of a canal and the building of an embankment according to arbitrary measurement.
    ULTRA VIRES.
    If this Ordinance 7483 could be construed as imposing the obligation upon the railroad to dig a canal and to build an embankment as something foreign to its purposes and uses and unconnected therewith, said ordinance would attempt to impose an obligation ulWa vires and beyond the power of the railroad to perform. Every person who enters into a contract with a corporation is bound, at its peril, to take notice of the legal limits of its capacity. Woods Ry. Law, 472; 10 Gray, 582 11 Allen, 65; 21 How. 441.

      A railroad lias no implied power to build a canal basin. Woods Ry. Law, 429; 39-Pa. Stat. 337.
    Nor to employ its funds in the improving the navigation of a stream. Woods Ry. Law, 479; 13Beavor, 1; 28 An. 173; 63 N. Y. 62; 73 III. 23; 37 Wis. 655; 55 Ill. 413.
    Nor to build a bridge or harbor. 24 L. J. 105.
    A railroad company can not devote any part of its funds to an object not within the scope of its original construction. Woods Ry. Law, 483; Digest Corporations, 2, p. 715; 47 Md. 58.
    There is no action against a railroad upon an agreement to advance money to construct a pier and harbor at the end of the proposed branch of the railroad.. Woods liy. Law, 484; 2 Maeq. 391.
   The opinion of the court was delivered by

McEnery, J.

This is a suit under the provisions of Ordinance-No. 7488 of the city of New Orleans, which embodies a contract between the city of New Orleans and the defendant, to compel the-latter to a specific performance of certain obligations therein stipulated, relative to the building of an embankment or levee on Florida walk from the intersection of Peoples avenue to Fisherman’s Canal,, according to plans and specifications furnished by the city surveyor. The cost of the work is estimated at $50,000. The importance of the-work can not be denied, and there is also a certainty that there are obligations to the city assumed by the defendant corporation, arising-under said ordinance, relative to the continuation of the embankment along Florida walk to Fisherman’s Canal, which the railroad, has not carried out in good faith.

It has used for a railroad bed an important levee for economical reasons, and, in consideration thereof, it had agreed to continue the-embankment along Florida walk to its intersection with the Fisherman’s Canal. Its failure to perform its duty has resulted in this suit to compel a specific compliance with its agreement.

The injustice of measuring all rights and wrongs, which, as a. remedy, is often inadequate, led to the establishment of the equity power in common law jurisdiction of decreeing a specific performance when the remedy at law has failed.

In the jurisprudence of this State, the law is expressed in Articles-1926, 1927, Oivil Code. It is therefore only when no adequate compensation can be made in damages that courts in this State can decree a specific performance of a contract.

The decree can not be demanded as a matter of right. It rests-largely upon judicial discretion, not arbitrarily exercised, but according to the soundest principles of equity and justice.

Not only the question of the ability of the plaintiff to seek adequate compensation in damages, but the ability of the court to grant the relief must necessarily enter into the discretion which the court is bound to exercisedn considering the remedy invoked.

The contract must be fixed and the liability of the defendant so certain that the duty imposed upon him by the court in ordering the execution of the contract can be readily ascertained and as readily enforced. Each case must depend upon the facts disclosed. Hennesy vs. Woolworth, 128 U. S. 438.

A strict adherence to this jurisprudence is rendered the more necessary, because of the summary remedy by mandamus allowed under Act 183 of 1888 in the enforcement of contracts entered into with the State, parochial and municipal authorities by corporations for building levees, bridges, culverts, etc.

There must be an element of certainty in the contract or the courts would be continually met with applications to enforce by mandamus, specifically, obligations arising merely by implication, and the duty, if these writs were indiscriminately granted, would be imposed upon the judiciary of supervising all such contracts in their execution.

And it would be bewildered with a multitude of accessory proceedings in the way of rules for contempt, and additional or supplemental writs.

The specifications for the construction of the levee are as follows:

Specifications for embankment from the intersection of Peoples avenue and Florida walk, along Florida walk to the Fisherman’s Canal.”

Said embankment shall be built on such lines as the city engineer will give when called on for them. The excavation shall be from the river side of the embankment, and shall form a canal 30 feet wide on top, and 16 feet wide at the bottom, and 7 feet deep. That there shall be a beam, not less than 5 feet, between the canal and the embankment. The embankment shall have a net grade of at least 2 feet above the Metairie Ridge, as established by the city engineer, the slopes not steeper than one on two; the width of the crown shall be regulated by the amount of filling furnished by the ■canal.

It shall be surfaced and crowned so as to draw to either side, all substantially as per accompanying diagram.

The base shall be cleared of all trees and brush.

[Signed] ' B. M. Harrod,

City Engineer.

In addition to the building of the levee the defendant corporation is required to make a canal of certain dimensions. The ordinance, in order to facilitate the extension or continuation of the embankment, authorized the defendant to take dirt from the canal. There is under the ordinance no obligation on the part of the defendant to dig a canal of any dimensions. Nor is there any obligation on the defendant to build a levee of any particular dimensions. If the duty of constructing a levee is imposed upon the defendant by the contract, there is some doubt whether a new levee is intended or a continuation of the levee, in size and dimensions, upon which the defendant corporation was allowed to place its tracks.

We are of the opinion that Act 133 of 1888 in no way changes the provisions of Articles 1926-1927 of the Civil Code, and that when there can be adequate compensation in damages, a decree of specific performance will not be granted.

The fact that the city is unable to advance money to build the-levee is not sufficient to bring the demand within the exception provided by Article 1927, Civil Code.

It is evident from the facts in the case that the city can obtain adequate compensation in a suit for damages for the breach of the contract.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the plaintiff’s demand be rejected, without prejudice to sue for damages for breach of contract.


author: Breaux, J.

text:
    No. 10,857.
    Kate Sherry Chase vs. Hibernia National Bank of New Orleans.
    The rights and duties of both the stockholders and the corporation whose stock they hold grow out of a contract implied in a subscription for stock.

      .A wife, having transferred her certificate of shares to her husband, and having had noted the transfer on the books of the corporation; the husband having subsequently sold these shares; 9he having brought suit against him for separation of property, and in her petition having claimed the proceeds, and judgment having been obtained recognizing her rights, can not recover on an error of the corporation to which she contributed, and which she made her own by her judicial declaration sufficiently to enable the defendant to maintain the plea of prescription of ten years, running from the day judgment was rendered in her favor decreeing her to be the owner of the proceeds of the sale of the shares.
    If the wife aid her husband in converting her estate into cash so that he can use it, it is her fault, and she must blame herself if he uses such cash in payment of his debts, and if other people act on the confidence which her conduct inspires.
    A PPEAL from the Civil District Court for the Parish of Orleans. Vourhies, J.

      Geo. L. Bright for Plaintiff and Appellant.

      J. G. Gilmore and S. L. Gilmore for for Defendant and Appellee:
    I
    'The wife may place her paraphernal property in the hands of her husband as owner, and his acts may be purely administrative as to her, but absolute as to third parties who are not subject to equities of the wife in account with her husband. Miller vs. Handy, sheriff, 83 An., p. 164, and authorities cited in brief. Godchaux vs. Morrow, 41 An. 716; La. National Bank vs. Scott, 42 An., p. 785.
    II.
    'Third persons dealing with the husband in his individual capacity are not affected with notice of the origin of the property acquired from him when his acts have been purely administrative of the property, title of which was in his name. Honold vs. Meyer, 36 An. 585; McNeil vs. Tenth National Bank, 46 N. Y., p. 325,
    III.

      .A corporation as a trustee is not bound to notice title to its shares for the purposes of transfers when title has been so constituted by the owners of the shares. Small vs. Saloy, 42 An. 183; Saloy vs. Hibernia National Bank, 39 An., p. 90.
    Prescription and estoppel run against the wife within the power of administration of her paraphernal property as against a femme sole. Perry on Trusts, Secs. 666-669, p. 610; 30 An., p. 164; authorities cited in brief.
    V.
    "Where a mandate to the husband has been revoked by a suit for separation of property, prescription runs against the wife from the date of revocation or resumption by a married woman of the administration of her paraphernal Lunds. B. O. C., Arts. 2387, 2391,3544, 3534, 3538, 3540.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, before her marriage, was the owner of twenty shares of the capital stock of the Hibernia Bank of New Orleans.

She was married to Charles H. Chase, on the 5th of November, 1870.

She collected three dividends of her shares after her marriage.

On the 6th day of November, 1872, she transferred these shares to her husband by written instrument.

No consideration was paid — none is expressed in the transfer except the customary “for value received” of bills and promissory notes.

An entry of transfer was inscribed on the books of the bank.

On the 23d of September, 1873, Chase transferred these shares to Joseph Maristany, and they were, from time to time, thereafter transferred to different parties.

The capital stock of the bank was twice reduced, also the number ■of shares.

Those claimed by plaintiff were reduced to sixteen at first, and in the fall of 1886 this number was reduced to twelve.

Six hundred dollars were paid on the last of these shares called in, and nothing on the first.

The Hibernia Bank has been reorganized and is now the Hibernia National Bank.

The plaintiff kept a bank account at this bank.

The defendant had no notice of an adverse claim of plaintiff before the 1st day of December, 1890, some eight months after her husband’s death.

Plaintiff sued her husband for a separation of property.

She alleges in her petition for a separation that she was the owner, at the time of her marriage, of property which she describes, and that her husband assumed its administration and sold the bank stock for the sum of $2640, and that the total appropriated to his own use w7as $14,100, less ^$2500 of the said amount, which was invested in her name in a lot of ground as an investment of so much of her paraphernal fund.

During the trial for a separation of property she introduced in evidence the certificate of the cashier of the bank, to prove the transfer of the shares to her husband.

On the 6th day of November, 1877, in said suit, she obtained a judgment against her husband for a separation of property and for 811,620, and for recognition of her rights to the lot in her name.

A writ of fi. fa. was issued under the judgment and was returned not satisfied.

The purpose of this suit is to recover from the bank the value of the shares, alleged as being 85000, and dividends amounting to 86000.

The plaintiff appeals from an adverse judgment.

Plaintiff’s counsel in support of his claim ably argues the proposition that the transfer to the husband is an absolute nullity, which can not in any respect avail the bank in its defence. The wife parted with her possession of the certificate of shares in favor of her husband, and was a party to the error committed by the officer of the bank in entering a note of the transfer on its books.

There can be no question that the bank should have refused to act and should have declined to incur any responsibility.

We are called upon to determine whether the responsibility still exists.

The plaintiff by her voluntary act, without marital influence, severed her relations with the bank as a shareholder.

She placed her husband in charge and gave him control.

There was at least an inchoate transfer made, which by admission or the lapse of time could become legal.

The bank from that time was, by the registry of the stock the trustee of the husband.

He collected a dividend while the stock was in his name.

After many years of acquiescence she called on the bank for the shares, as if only a few days had elapsed, and no intention of transferring them had ever been entertained.

The husband had the administration, as alleged by her, and she placed these shares in his name as his own.

There was, to say the least, something of a conversion from this time. Miller vs. Handy, Sheriff, 33 An. 164.

In business matters, if other people act on the confidence in the husband which her conduct inspires, the wife must blame herself. Succession of Gilmore vs. Bailey, 12 An. 562.

Plaintiff sued to dissolve the community and for judgment for different amounts, among these that realized by her husband from the conversion of the certificate of shares.

In the present suit the wife erroneously' testified that her husband never at any time assumed the administration of her property.

She obtained judgment for the proceeds of these certificates.

Had she sold them to her husband, as now contended, he would have been responsible for the price, and not for the amount received by him when he sold them.

His wife can not escape the effect of- these proceedings and pass them as if void. Her declarations to obtain the judgment were made with the legal authority of the judge.

Estoppel by judicial declaration will not apply to escape the effect of marital influences.

There is no intimation of such influence. She is, therefore, bound by the conversion, and the judgment made conclusive by the lapse of time.

She can not be allowed to shift her position at will.

In her first suit, with legal evidence, she maintained the allegation that her husband sold these bank shares and received the price.

In the present suit she proposes to ignore those proceedings entirely and recover judgment as if she had never parted with the title and had never placed her husband in possession of the certificate.

Plaintiff contends that the conversion dates from the date of her demand for their delivery.

The error is not of that date.

The delivery of the shares and her judicial declarations fix an earlier date.

A corporation is ordinarily justified in treating the assignee and holder of certificates of stock as the owner. 8 Am. Rep. 586.

Although this principle does not justify a corporation in making an illegal registry; when the owner calls alone and has the transfer noted; knew that they were transferred into third hands, and claimed the proceeds; the dates of her acts and declarations can not be left out of all consideration.

“ The relation of stockholders to the corporation whose stockthey hold is that of contract, and the rights and duties of both parties grow out of contract implied in a subscription for stock. ” Supply Ditch Co. vs. Elliott, Vol. 10 Colorado, 827.

When the wife is one of the parties to such a contract she is not relieved from every care and concern of an owner.

There can be no estoppel, plaintiff urges, because the transfer made by the wife to the husband, the basis of defendant’s liability, was made years before the institution of her suit against the husband, and that defendants were not thereby induced to change their positions.

The estoppel is not by recitals of a deed, or by conduct.

The plea is based on the solemn act of a competent court, which plaintiff has executed in part, at least.

Judicial declarations are accepted as true without regard to any influence they may have had on the party in whose behalf they are pleaded.

Article 3525 of the Civil Code, relative to the suspension of prescription, is quoted as applying. It does not apply.

The plea of prescription interposed by the defendant is a bar to plaintiff’s demand.

The husband is not bound in warranty to the bank.

The act was that of the wife, which she has made clearly hers.

The error if actionable would give right to damages owing to defendant’s negligence, which do not give a right to cite plaintiff’s husband in warranty.

Plaintiff’s right of action accrued more than ten years prior to the institution of this suit. More than that length of time had elapsed from the date of a judgment in her favor, decreeing her to be the •owner of the price for which the property was sold by her husband.

Judgment affirmed at plaintiff’s costs.


author: Fenner, J.

text:
    No. 10,903.
    Miss Ida Durbridge vs. Chas. H. Crowley et al.
    1. In a petitory action, the unsuccessful defendant, though previously.a possessor in good faith, is liable for rent or rental value from judicial demand.

      2. Defendants are entitled to their beneficial expenditures for repairs, improvements, taxes, etc , but they can not claim taxes paid by the authors of their in- • valid title, who had the enjoyment of the property exceeding in value the taxes paid.
    3. There being no proof of enhanced value of the property resulting iron defendant’s expenditures thereon beyond the amount of the expenditures themselves, the allowance in their favor of the expenditures satisfies their right.

      APPEAL from the Twenty-fourth District Court for the Parish of St. Bernard, Livaudais J.

      Walshe & Brauglm, for Plaintiff and Appellee,
    cited: O. C. Arts. .503 and 508; 38 An. 150; C. P., Arts. 907 and 890.

      Drolla & Augustin, for Defendants and Appellants,
    cited: 28 An. £30; 15 An. 698; 27 An. 398; 38 An. 150; 16 An. 415; 2 An. 347; 5 An. 380; 3 La. 543; 99 U. S. 520.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff brought a petitory action against the defendants for the ownership of certain real estate, coupling therewith a demand for partition and for one-fourth the rents or rental value of the property from judicial demand.

The case was before us in April last upon exception to the cumulation of such demands, which had been maintained in the court below, but was reversed in this court. Durbridge vs. Crowley et als., 43 An. 504.

The defendants answered denying plaintiff’s allegation of title, alleging that they had paid out as expenses on the property for improvements, repairs, taxes, insurance, etc., the sum of $1040.49, which should be reimbursed to them in e^ent of destitution of title, and calling in warranty the author of their own title. The warrantor appeared and pleaded a general denial.

On these issues the case went to trial, and resulted in a judgment .recognizing plaintiff as one-fourth owner, [decreeing a partition, giving her judgment against defendants for rents from judicial demand, and giving defendants judgment against plaintiff for one-■fourth of expenses claimed and proved by the former, together with a judgment in favor of defendants against the warrantor for the purchase price.

The defendants only have appealed. They do not complain of the judgment so far as the maintenance of plaintiff’s title is concerned or as to the decree of partition.

Their complaint is confined to the adjustment of the revenues and •expenses.

1. As to the rents, defendants were clearly liable for rent from judicial demand. Rev. O. O. 503; Dufilho vs. Mayor, 27 An. 399.

The evidence clearly fixes the rental value at the rate allowed by the court. During a portion of the time, since judicial demand, defendants rented out the property at that rate — during the rest of the time they used it themselves.

They are liable for the rental value in both cases.

2. As to the allowance in their favor, the court allowed defendants all they claimed in their answer, viz., one-fourth of the expenses for improvements, taxes, etc., paid out by them during their supposed ownership.

Their claim for one-fourth the taxes which had been paid by the authors of their title has no support either in their pleading, in the proof or in the law. The property is shown to have had a rental value, and those who paid the taxes had the use and enjoyment of the property. Even as possessors in good faith they would be bound to compensate the taxes against the rents.

Appellants also claim an allowance for the enhanced value, resulting from their expenditure on the property. No enhancement is proved beyond the amount of the expenditures, and the allowance for the latter satisfies all-their possible right.

Judgment affirmed.


text:
    No. 10,939.
    George Nicholson and Wife vs. C. H. Parker, Tax Collector.
    Tlie publisher of a newspaper is not a “ manufacturer of stationery” within the meaning or intent of Article 207 of the Constitution. Decision in State vs. Dupre* 42 An. 561, referred to, and its inapplicability to the instant case shown.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      F. P. Poehé and Lámar C. Quintero for Plaintiffs and Appellants:
    Publishers of newspapers are manufacturers for the same reasons that makers of blank books and publishers of printed books are manufacturers, within the intendment of the Constitution. 42 An. 561.
    Makers of blank books are manufacturers, because blank books are articles of “stationery.” 42 An. 561.

      Property engaged.in the publication of a newspaper is exempt from taxation, because capital, etc., engaged in the manufacture of “ stationery” is exempt from taxation. Constitution, Article 207.

      Buck, Dinkelspiel & Hart on the same side.

      H. C. Gage and W. B. Sommerville, Assistant' Oity Attorneys, and •Carleton Hunt, Oity Attorney, for Defendants and Appellees:
    1. Words used in a constitution are to be taken in their usual and customary signification. Cooley Oonst. Dim., 58; Story on Const., See. á53.
    2. Exemptions are to be strictly construed. Cooley Const. Lim., 61, 381, 528.
    3. Only manufacturers specifically named therein are exempt from taxation by Article 207 of Constitution, 1879.
    1. A newspaper is not an article of “stationery.” Worcester’s Dictionary, Webster’s Dictionary, Century Dictionary, Yerbo “ Stationery.”

      Wynne Rogers, Attorney for Tax Collector, on same side.
   The opinion of the court was delivered by

Fenner, J.

Plaintiffs, as owners of the presses, boilers, type, machinery, and other appurtenances used by them in printing and publishing the newspaper known as the “Daily Picayune,” claim exemption from taxes levied on said property, by virtue of Article 207 of the Constitution,' which exempts from taxation property “ employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, * * stationery, ink, and paper,” etc.

In case of State vs. Dupré & Hearsey, 42 An., p. 561, we had under consideration the preceding Article 206, which exempts from license taxation ail “manufacturers other than those of distilled alcoholic or malt liquors, tobacco and cigars, and cotton seed oil.”

The difference between the two articles is very pointed. Article 206 exempts from license-tax all manufacturers, with certain designated exceptions; Article 207 exempts from property-tax only manufacturers of certain designated articles.

The question in Dupré’s case was whether the publisher of a newspaper is a manufacturer; the question in the instant case is whether such a publisher is a manufacturer of ‘ ‘ stationery. ’ ’

In Dupró’s ease we held that, although the publisher of a newspaper might not be considered as a manufacturer in the general acceptation of that term, yet that the Constitution evidently used the term in a broader sense, and we referred to the following Article 207, which treated a maker of stationery as a manufacturer, and we held that, if a maker of stationery, such- as blank-books, account-books, etc., was a manufacturer, the maker of printed books and of newspapers must equally be so considered. We referred to the provision of Art. 207 on the subject of the manufacture of “stationery ” merely by way of analogy and illustration; but there is certainly no word in the opinion which hints that the publisher of a newspaper was a manufacturer of stationery. If we had so considered, a mere statement of the fact would have solved the case, since nobody questions that the Constitution, in express' terms, recognizes the maker of stationery as a manufacturer.

In that case, all our reasoning by analogy would have been superfluous, and the dissenting opinions in the case would not have been written. That the publisher of a newspaper, any more than a publisher of books, is not a manufacturer of stationery, is a proposition to our minds so self-evident that its statement is sufficient without the necessity of any enforcement. The contrary would doubtless never have been advanced by any one but for a very gross misinterpretation of our opinion in Dupre’s case.

Judgment affirmed.


text:
    No. 10,938.
    George Nicholson and Wife vs. City of New Orleans et al.
    The case is identical in questions presented with No. 10,939 just decided.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. _
    Same counsel as in preceding case.
   The opinion of the court was delivered by

Fenner, J.

The questions involved in this case are identical with those just decided in case of same plaintiffs vs. Parker, No. 10,989, and for the reasons there given, judgment affirmed.


text:
    No. 10,889.
    The State of Louisiana vs. Mrs. Baker.
    1. The precision required in indictments for crime before courts of record is not applicable to affidavits against violators of municipal ordinances before recorders’ courts.
    2. An affidavit against defendant for keeping an assignation house at a designated place, in violation of Section 8 of Ordinance 4484, is a sufficient foundation for trial and sentence, although it does not state all the circumstances contained in the section referred to as constituting the offence.
    A PPEAL from the Second Recorder’s Court of the City of New Orleans. Aueoin, J.

      Henry Renshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee.
    Jets. O. Walker for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant, charged with violating a municipal ordinance, was tried before the recorder, and sentenced to pay a fine of §25, or, in default of payment, to be imprisoned for 30 days. She appeals to this court, and asserts that the fine and penalty imposed are illegal, because she was charged, tried, and sentenced for no offence denounced by any municipal ordinance.

The affidavit, under which she was held, charges her with keeping “ an assignation house, in violation of Section 8, of city ordinance 4434, Council series.”

The said section is in the following words: "That whenever a house of prostitution, or assignation, within, or without, the limits established by this ordinance, may become dangerous to public morals, either from the manner.in which it is conducted or the character of the neighborhood in which it is sitaated, the mayor may, on such acts coming to his knowledge, order the occupant of such house, building, or room, to remove therefrom within a delay of five days, by service of notice on such occupants in person, or by posting the notice on the door of the house, building, or room, to remove therefrom within a delay of five days, and upon such oecupant’s failing to do so, each shall be punished as provided in Section 10 of this ordinance.”

The record shows that the recorder received full proof that accused was keeping an assignation house at No. 886 Dauphine street; that the mayor had received a petition, signed by numerous residents of the neighborhood, complaining and denouncing the same as injurious to public morals; that he had served upon defendant the notice provided by the ordinance; and, that she had not removed within the delay therein stated.

The defendant, however, excepted to all the evidence, and objected to the whole proceeding, on the ground above indicated that she was not charged with any offence denounced in the Section 8 of said ordinance. No other offence is denounced by that section except the keeping of a house of prostitution, or assignation, in a designated locality, after having been notified by the mayor to remove within five days, and after having failed to remove within that delay. The charge in the affidavit that she was keeping an assignation house, “ in violation of Section 8,” meant, and could mean, nothing but that she was so keeping it, after receiving the notice, and after the expiration of the delay allowed.

The affidavit was sufficient, the evidence under it was properly received, and the sentence corresponded to the offence.

The precison required in indictments, for crime before courts of record, is not required in affidavits for violation of municipal ordinances before recorders’ courts, which are not courts of record. State vs. Dunbar, 43d An.

We have already maintained the legality and constitutionality of this ordinance. State vs. Mack, 41 An. 1079. Judgment affirmed.


author: Watkins, J.

text:
    No. 10,775.
    Succession of Harry Harvey and Mrs. Mary Harvey vs. William Harvey et al.
    1. In case an appellant procures certiorari and brings up documents in theoriginal which arc missing from the transcript, and, also, a supplemental transcript, during the pending of appellee’s motion to dismiss, and under a reservation by the court, the motion will be denied, inasmuch as such records satisfy all of the appellee’s reasonable requirements.

      2. Where the objection taken is, that a transcript of appeal improperly includes two different and distinct records, incompatible with each other, it will not be* entertained, the transcript disclosing the cumulation of the two causes in the District Court by consent.
    Notwithstanding the action of an emancipated minor against his tutor, respecting acts of tutorship, is prescribed by four years, to begin from the date of his majority, yet if the tutor take the initiative and file an account of his acts of tutorship, to which his former ward makes opposition, the plea can not be made available to the tutor. In such case, the accountant’s act in submitting his gestión to judicial investigation and judgment is tantamount to an abandonment of the benefit of the bar of the statute.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      B. R. Forman for Appellant:
    1. When one who was a tutor voluntarily files an account of his gestión and cites his former ward to show cause why it should not be approved and homologated, waives the four years’ prescription of Article 362, O. 0., and is estopped by his judicial admission and prayer from pleading prescription when defendant appears and opposes the account. He can not summon defendant to court and then shut the door in his face.
    2. Equality is the fundamental basis of a partition. The whole estate must be partitioned at one time, mutual accounts settled, and the heir or widow in community who has received rents and revenues, or part of the estate, must account for the same in the partition.

      Gibson & Hally contra:

    A minor’s action against a tutor, for acts of tutorship, is prescribed by four years after the date of majority. C. C. 362 (356).
    An heir can plead the prescription of four years to a co-heir’s opposition, claiming against a tutor for acts of tutorship, not asserted until more than four years after a co-heir’s majority. U. O. 362, (356); 37 An. 900, Giddon’s Executor’s vs. Mobley; 37 An. 221, Cochran vs. Violett; 37 An. 805, Bedell vs. Calder; 31 An. 723, Sue.’ of Romero; 30 An. á68, G allien vs. Reagan.
    A tutrix, filing for account, can plead the prescription of four years to an action of heirs for acts of tutorship against her. C. C. 362 (356).
    An heir that does not claim for acts of tutorship after attaining majority, but continues to live with the family under the management of the surviving parent for many years after the plea of prescription of four years could have been successfully pleaded, consenting to all that was done, with which acts the Jtieir was perfectly familiar, and also consenting to the sale of real estate belonging to the ancestor’s estate, to pay the debts for delinquent taxes and family support, ratifies, acquiesces in and endorses, expressly and implicitly, the acts of the parent who retains the management of the estate until the heirs are all of age, and the children of such heir are estopped from contesting such acts of management. 30 An. 1138, Sue. of Bauman; 31 An. 100, Factors and Traders Ins. Co. vs. DeBlane; 33 An. 1236, Sue. of James I-Ioss; So An. 1161, Dafitte, Dufilho & Co. vs. Godchaux; 36 An. 661, Allison vs. Watson.
   On Motion to Dismiss.

Watkins, J.

The grounds assigned are, (1) that the transcript is insufficient and incomplete, not containing many of the most important documents filed in and used by the lower court on the trial,, and which are essential to a trial of the case in this court on appeal; (2) that the transcript contains two different and antagonistic cases, which should have been brought up separately.

Since the filing of the motion to dismiss appeal, under a special - reserve by this court, counsel for appellant procured certiorari, and thereunder has brought up a supplemental transcript, said to contain the missing documents. He has also brought up in the original a large bundle of papers from the files of the Civil District Court, as an additional supplement to the transcript.

As the case is undisposed of, and the production of these copies- and originals appears to satisfy all the reasonable requirements of the appellee’s motion this ground may be dismissed without further-consideration.

On the other branch of the motion it will suffice to state that the two eases — respectively entitled in the Civil District Court, Succession of Harry Harvey, No. 19,508,” and “ Mary Harvey vs. Harry Harvey, Wm. Harvey et als, No. 20,017 ” — which are included in one transcript, are germane to each other, and form essential parts of identically the same litigation.

The original suit was for a partition of the succession of Harry Harvey, between the surviving widow and heirs of deceased.

The other proceeding is merely a demand, by the1 tutor of certain of the grandchildren, upon the grandmother, for an accounting and settlement of the proceeds of property sold, rents and revenues collected, and of her disposition of certain movables, left in her possession, the aggregate value of which is placed at some $48,000.

It appears that the succession of Harvey, No. 19,508, was allotted to Division “E,” and the partition suit was improperly allotted to Division “ C,” and by consent of parties the latter was transferred to Division “E,” and thereafter all proceedings were conducted before division “ E ” under double titles and numbers, as one case, and without objection.-

On this state of facts we are of opinion that the transcript was correctly made and brought up, and would have been defective otherwise. Vascocu vs. Woodward, 85 An. 555.

Motion denied.

On the Merits.

Harry Harvey died in April of 1872, leaving Mary Harvey, Ms-widow, surviving, and seven children, only one of whom, Josephine, was of full age, and who subsequently married William P. Blake - more. Deceased left a will, in which he bequeathed in favor of his-widow and seven children all of his property, share and share alike. In the will no designation of an executor was made, and there was no dative testamentary executor appointed. The widow qualified as-natural tutrix, and as such administered the succession of the deceased, after having caused the last will of her husband to be probated. No account of her gestión was filed until June 1, 1887, at which time her youngest child, Harry, became of full age. That was a final account, or purported to be; and on the 10th of June, 1889, she filed a supplemental account.

Mrs. Harvey’s daughter, Alice, married J. J. Culligan on June 15, 1881, and died in 1885, leaving her husband and two minor children surviving. She came of full age on the 10th of January, 1875, five-years before her marriage, and two years after her father’s death.

Representing his two surviving children — grandchildren of Mary and Harry Harvey — Culligan, tutor, opposed the first account, on various grounds — all of the other heirs having consented to their mother’s management, administration and account.

During all of those years Alice Harvey resided in and made the family domicil her home, until a year had elapsed after her marriage.

She, apparently, acquiesced in all that her mother had done, and was furnished from the revenues and resources of the common property the means of support and livelihood. In 1879, nearly four years after she became of full age, she voluntarily joined the other children and her mother in an act of sale of a piece of the common property, in order to raise money wherewith to pay taxes and debts incurred in the support of the family — herself amongst the number.

To the opposition of Culligan, tutor, to the original account, a plea of four years’ prescription was filed by Mrs. Mary Harvey, accountant, and Harry Harvey. There was judgment sustaining this plea of prescription, and the supplemental account, not having been opposed, was duly homologated, as of course.

Widow Mary Harvey brought a suit fora partition of the common property, on the 28th of January, 1887, to which all of the children. •consented — the tutor, Culligan, alone making opposition. This suit was subsequently transferred to the mortuaria. There was a judgment awarding a partition, and Cullingan, tutor, made opposition to its homologation; but it was unavailing. The property was sold for the purpose of effecting a partition, and the proceeds of sale were deposited in bank, to await the issue. Those are the two judgments from which Culligan, tutor, has appealed.

In regard to the prescription of four years, the claim of the ex-ceptants is, that Alice Harvey, survived her father’s death in 1872, became of full age on the 10th of January, 1875, was married the 15th of June, 1881, and died on the 10th of September, 1883; hence, the two children born of that marriage inheritedj her succession as beneficiary heirs, and succeeded to her rights, just in the same situation they were in, at her death — they participating in their grandfather’s succession by representation. R. O. C. 894, et seq.

The plea is urged against the opposition of Culligan, tutor, as the legal representative of Alice Harvey, his deceased wife, treating her as an emancipated minor, of whom his minor children were only representatives. The article of the code relied upon as sustaining the plea is couched in the following words, to-wit:

“ The action of the minor against his tutor respecting the acts of his tutorship is prescribed by four years, to begin from the date of his majority.” R. C. C. 362.

While an opposition to an account is not an action, but an answer, yet, as the plea of the accountant has treated it as such, for the purposes of argument we may so consider it. Essentially, the account and opposition, considered together, constitute an action “ respecting the acts of the tutorship.” This action was instituted long since the expiration of the four years’ limit, counting from the date of the majority of Alice Harvey, mother of opponents. It was during the progress of the trial of the account that Mrs. Harvey tendered the plea of four years’ prescription.

The contention of the opponents is, that while the tutrix of an emancipated minor can not be compelled to render an account “respecting the acts of her tutorship ” after the lapse of “ four years to begin from the date of her majority, ” yet, if such tutrix does file an account in which she deals with the acts of her tutorship, and it is opposed by the ward, she is judicially estopped, at this stage of the proceedings, from availing herself of this prescription.

The learned judge of the lower court maintained the plea, but we-can not concur in his ruling. As there appears to be no case in which this question has been adjudicated, he evidently treated it as res nova,. as we shall be necessitated to do. To sustain the plea of the accountant, under existing circumstances, would, in our opinion, be equivalent to allowing her to first inaugurate a judicial proceeding, and finding it opposed, to defeat any investigation, by use of the bar of prescription. This she,' evidently, can not be permitted to do.

The doctrine quie temporalia, which permits one to use as a shield that which he cannot use as a sword, would in this manner be-reversed, so as to allow an accountant to use as á sword that which she can not use as a shield.

If, however, the plea should be maintained, it would only cut off inquiry in respect to the acts of Mrs. Harvey, as Uitrix, between the-year 1872, when Mr. Harvey died, and 1875, when Alice became of' age; because, since then, Mrs. Harvey has possessed and administered the common property, for which she must account in the-partition suit. By remanding the case the whole matter can be tried and decided together.

It is, therefore, ordered and decreed that both judgments appealed, from be annulled and reversed, that the plea of four years’ prescription be overruled and the whole litigation remanded for further and final disposition and decree; the cost of appeal to be taxed against the succession, and other costs to await the final termination of the-litigation.

Rehearing refused.


text:
    No. 10,890.
    State of Louisiana vs. Frank Clesi.
    1. In case the record discloses that there was raised in a recorder’s court no contestation as to the jurisdiction of the court,nor as to the constitutionality or legality of the city ordinance under which tlie appellant was prosecuted, the appellate jurisdiction of this court does not attach.
    2. In the absence from the transcript of the city ordinance this court has no power to reverse the judgment appealed from.
    APPEAL from the Fourth Recorder’s Court of the City of New Orleans. Smith, J.

      Henry Benshaw, Assistant City Attorney, and Carleton Hunt, City •Attorney, for Plaintiff and Appellee.

      Thos. F. Maher for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Defendant being charged with selling and peddling goods within the prohibited radius from a public market of the city, and having been duly convicted and sentenced to pay a fine of $10 or in default thereof to be imprisoned twenty days in the parish prison, prosecutes the present appeal therefrom.

The prosecution, arises under the provisions of city ordinance No. 4274, relative to peddling within six squares of the public markets, and it was commenced and prosecuted in the name of the State. 'The affidavit is in the usual form.

The defendant appeared and filed a demurrer and exception to the proceedings, on the following grounds, viz. :

1. That the prosecuting witness is not authorized by any law or •ordinance to represent the city of New Orleans, whenever said city is an interested party, nor the right to sue for the enforcement of the ordinances of the city.

2. That the ordinance under which the prosecution is taken provides who are the proper officers to conduct the proceedings for its violation.

3. That he is not a peddler, either within the spirit or letter of the ■Ordinance 4274.

4. That his prosecution by an unauthorized person under this ordinance violates Article 1 of the Constitution.

5. That said ordinance is “ unreasonable and * * * not impartial.”

It appears from the foregoing that, in the court below, there was no contestation as to the jurisdiction of the court as to the constitutionality or legality of the ordinance, for a violation of which he is being prosecuted.

In State vs. Tsni Ho, 37 An. 50, this court said: It is obvious that the contestation ’ referred to in the Constitution must have existed in the lower court, and the fact of its existence must affirmatively appear on the face of the record.”

The same principle is recognized in City of New Orleans vs. Hill, 32 An. 1161.

The converse of the same is announced in State ex rel. Stinson vs. Recorder, 42 An. 526.

This being the ease defendant has disclosed no appealable interest in the premises.

Furthermore, the city ordinance under which the defendant is prosecuted, was not offered in evidence in the court below, and was not'incorporated in the record brought up here — hence, if the case was jurisdictionally well grounded, this courtis powerless to revise the judgment appealed from, in its absence. It has been so decided frequently. City of New Orleans vs. Hill, 32 An. 1161; City of New Orleans vs. Labatt, 33 An. 107.

But it appears from an examination of an ex parte motion, filed in this court by counsel for the appellant, since the date of submission, that the ordinance is now presented for our consideration. It would be altogether irregular to take any notice of it without resort being had to certiorari, and in the absence of a consent obtained from the appellee.

There is nothing left for us to do but to affirm the judgment appealed from, and it is so ordered.


text:
    No. 10,947.
    The State ex rel. Henry Block & Bro. vs. Judge Civil District Court, Parish of Orleans, Division D.
    When property attacked has been sold in limine, under Article 261, Code of Practice, the proceeds take the place of theproperty and still continue to be the property attached, and subject to the right of the defendant to bond in every stage of the suit, under Article 259, Code of Practice, unless the defendant has waived the right to bond by an agreement that’ the proceeds shall remain in hands of the sheriff, subject to the rights of the attaching creditors, and until thefurther order of the court.
    APPLICATION FOR MANDAMUS.

      Calhoun Muher for the Relators:
    When property attached has been sold in limine, under C. P.261, the proceeds take the place of the property attached, and still continue to be the “property attached,” and subject to the right of the defendant to bond, “ in every stage of the suit,” under O. P. 259.

      Where on a rule to show cause why property attached should not be sold in limine, under C. P. 261, defendant consents that the same be made absolute, he does not thereby acquiesce in the process against him and abdicate all right to contest its propriety, nor does he renounce his legal right to wifchdx*aw the proceeds of such sale from the custody of the sheriff by means of the bond proposed under C. P. 259.
    When property attached has been sold in limine, under C. P/261, the defendant liasthe legal right, at any stage of the proceedings, to release the proceeds, on giving bond and security for the amount of such px*oceeds.

      Moise & Titche and W. S. Benedict for the respondent:
    1. Defendants in attachment proceedings, who abandon their domicil upon the issuance of the first attachment; who abandon their business, consenting to the sale of all their property, have so far acquiesced in the process against them as to be debarred from the exercise of their legal rights under the proceedings. 41 An. 286.
    2. In such a case the judge a quo rightfully refuses to allow defendants to bond the funds in the hands of the sheriff, x*ealized from the sale of their px*operty, and mandamus will not lie to compel him. 40 An. 208; Wickham & Pendleton vs. Nalty, 41 An. 286.
    8. The law abhors a multiplicity of suits; and where the proceeds of property attached are held by the sheriff subject to the conflicting claims of numerous creditors, asserting their rights to priority of payment out of such proceeds by means of attachments, sequestrations, provisional seizures, interventions, third opposition and otherwise, the court will favor the settlementof therights of such contending litigants in one concursns, rather than x*elegate each creditor to a separate action upon one bond.

   The opinion of the court was delivered by

McEnery, J.

The relators apply for a writ of mandamus to compel the respondent judge to issue an order to the civil sheriff of the parish of Orleans, directing him to release on bond, and pay over to the relators the proceeds of the sale of perishable property, seized in several attachment proceedings against them.

The several attachment suits were allotted to the different divisions of the Civil District Court.

O. Lazard & Co., the first attaching creditors, obtained the order to sell the property. All the attaching creditors and the relators agreed to the sale, but there was no agreement that the proceeds should remain in the hands of the sheriff, subject to the rights of the attaching creditors, and until the further orders of the court.

In the case of the State ex rel. Gerson vs. Judge, 37 An., p. 261, we held that property attached and sold in limine, under Article 261, Code of Practice, the proceeds of the sale of property continue to be the property attached,” and subject to the rights of the defendant to bond “ in every stage of the suit,” under Article 259 of the Code of Practice.

We are referred to the eases of State ex rel. Moss vs. Judge, 40 An. 203; and Wickman & Pendleton vs. Nalty, 41 An. 285, as announcing a contrary rule.

In the first case there was an agreement that the proceeds of the sale of the attached property should remain in the hands of the sheriff, subject to the claims, rights, and liens of the various attaching creditors. In pronouncing the decree, we said: “ Whatever tho legal right of the relators was, apart from the agreement, the agreement became a law to all the parties thereto, and by its terms they must abide.” In the second case there was no application to bond the property. The question presented for consideration was the dissolution of the attachment. All parties had agreed to the sale of the property, and the retention of the proceeds by-the sheriff, to await final judgment.

The rule to dissolve the attachment was discharged, on the ground that the agreement effectually debarred the defendant from questioning the validity of the process against him and his property.

That the relators are fugitives from justice, and that the numerous attachment suits will involve further litigation on the bond to recover the proceeds, can not be considered as valid reasons for denying a positive right given to the relators by law.

The relators forfeit none of their civil rights by absenting themselves, and, it is to be presumed, that the bond will be paid, in accordance with its terms and conditions.

The relators urge that the bond should only be for an amount equal to the proceeds of sale in the hands of the sheriff. The proceeds represent the property. The bond, therefore, must be in an amount and conditioned, as though the property was still in the hands of the sheriff, in strict compliance with Article 259, Code of Practice.

The rule herein is made absolute, the relief prayed for granted, and the mandamus made peremptory.


text:
    No. 10,960.
    The State ex rel. Arnold Lewis vs. David Pierson, Judge.
    Section I of Act No. 138 of 1890 is null and void, being in conflict with Article 99 of the Constitution.
    The title of the act refers to labor contracts. The body of the act refers to any contract.
    y^PPLICATION for Certiorari and Prohibition.

      Charles V. Porter for the Relator.

      Respondent in propria persona.

   The opinion of the court was delivered by

McEnery, J.

The relator was convicted and sentenced for violating the provisions of Section 1, Act 138 of 1890.

Under the authority of Article 90 of the Constitution, and its interpretation in the case of State ex rel. Walker & Merz vs. Judge, 39 An. 133, he applies for writs of prohibition and certiorari to prevent the respondent judge from proceeding further in the case on the ground that said act is unconstitutional, violating Article 29 of the Constitution, which requires that every law shall embrace but one object, which shall be set forth in its title.

The title of the act is, “To enforce labor contracts and to provide a penalty for the wilful violation thereof, and to make it a misdemeanor for persons not parties to said contracts to willfully interfere therein and to provide for punishment thereof.”

Section 1 provides “that whoever shall wilfully violate a contract, upon the faith of which money or goods have been advanced, and without first tendering to the person from whom said money or goods was obtained the amount of money or the value of the goods, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $50 nor more than $200, and in default of payment thereof, with cost, shall be imprisoned in the parish jail for not less than ten days nor more than thirty days, at the discretion of the court.”

The contention is that the title of the act refers to “labor” contracts, and the above section provides for a violation of a contract, omitting the word labor before the word contract.

When the title indicates the object and purpose of the law it is sufficient. It was the intention of the law to punish the violation of labor contracts. Nothing is said in the first section of the act, under which the relator was indicted, about labor contracts. The title of the act is restricted to this particular kind of contract. The body of the act refers to all contracts. Any one, who is not a laborer and who makes a contract upon the faith of which money is advanced or goods delivered, is subject to an indictment for the violation of Section 1.

Suppose, for instance, that a merchant, planter or any one employed in any other occupation than that of laborer on a plantation or elsewhere, should be indicted under this section. The defence, that his contract was not a labor contract and not covered by the title of the act, would be a valid one.

It is evident that there is a wide difference in meaning and the object to be attained as expressed in the title and the law. It clearly violates Article 29 of the Constitution.

It is, therefore, ordered that the rule herein be made absolute, and the writ of prohibition issued be made perpetual.


text:
    No. 10,881.
    Smith & Boullemet vs. Board of Assessors.
    1. A person engaged in the manufacture of harness and saddlery in the year 1890 is protected by constitutional exemption from taxation on the capital, machinery and other property therein employed.
    2. In case such manufacturer carries with his stoch of manufactured goods a small assortment of other articles, not manufactured by him, but which constitute a necessary accessory to his business, the latter is taxable.

      3. If such person has been once assessed and has paid the tax on such‘taxable property, an additional assessment will be annulled, as one made on nontaxable property — the proof showing that the assessment made and paid covers the full value of the taxable values of the manufacturer.
    PPEAL from tbe Civil District Court for the Parish of Orleans-Ellis, J,

      Henry P. Dart for Plaintiffs and Appellees.

      Henry Renshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, and Wynne Rogers, Attorney for Tax Collector, for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs having been assessed in 1890, on “ money loaned on interest, all credits and all bills receivable for money loaned or advanced on for goods sold, $5000,” seek by this suit to have canceled and annulled said assessment on the ground that the property assessed is such as is the product of materials by them “ employed in the manufacture of * * harness, saddlery,” etc., and exempt from taxation under Article 207 of the Constitution —they being engaged in the business of manufacturing and selling saddles and harness in the city of New Orleans, and therein employ more than thirty-two (82) hands.

They have an invested capital of about $60,000 in said business.

Their contention is that they have no such property as that assessed, save and except the “ capital, machinery, and other property employed in the manufacture of saddles and harness,” and the products and avails thereof, which is exempt from taxation under said article of the Constitution — unless it be a small stock of goods they carry as a necessary adjunct of and as accessory to their business. This stock of goods consists of such articles as belt-hooks, belt-lacing, horse brushes, curry combs, lap-dusters and robes, whips, whip stocks, and the like.

Those are wow-manufactured goods, and are confessedly liable to taxation. But their statement is that they have submitted to and paid upon an assessment of ten thousand dollars’ valuation for all those things, “ although for ten years they have seldom had such an amount.”

They insist that the sales made of these articles are merely accidental, and not incidental, to their business;- and such sales constitute an infinitessimal pa-it of their business; hence, their “bills receivable and all credits ” represent, in the main, the price of manufactured articles sold, and which are exempt from taxation.

One of the plaintiffs swears that, “ of the sales of different items, exempt and not exempt, to the best of (his) knowledge and belief, the tax on $10,000 that (hfe has paid) covers everything that Smith & Boullemet have subject to taxation (i. e.) not exempt.” The assessment of $5000 that is assailed is additional to that of the $10,000 assessment, to which the witness refers.

Plaintiffs’ book-keeper shows that their bills receivable aggregate $4132.87, and their open accounts about $40,000, equal to a total of $44,132.37.

One-tenth of that sum is $4413.23.

This sum represents wow-manufactured goods liable to taxation. But inasmuch as plaintiffs have already paid on an assessment of $10,000, nothing is due on that score, and “the additional assessment of $5000 ” is essentially a tax on exempt property, and, consequently, null.

Of this, the testimony clearly satisfies us, as it did our learned brother of the district court.

Judgment affirmed.


author: McEneuy, J.

text:
    No. 10,936.
    The State of Louisiana vs. J. F. Gessner.
    It is not necessary to lay the foundations for the introduction of evidence to contradict statements of the accused which form a part of the res gestee.

    When a person seeks entry into a house, representing himself to he a gas inspector, and steals from the premises after admission to the same, his declarations made at the time are part of the res gestee, and it is not necessary to lay the foundation to contradict them.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      James C. Walker for Defendant and Appellant.
   The opinion of the court was delivered by

McEneuy, J.

The accused was indicted for larceny, and convicted and sentenced. He has appealed.

On the trial of the case two witnesses testified that the accused came to their father’s house in the city of New Orleans, and represented himself as a “ gas inspector, and wished to look at the gas.”

He was accompanied through the house and was permitted to examine the gas fixtures and gas burners. Shortly after he left the house a gold watch and chain were missing from the bureau in one of the bedrooms.

The evidence against the accused was circumstantial. We have no jurisdiction of the facts in a criminal case, and will only consider them when they are incorporated in a bill of exceptions, and it becomes necessary to do so in order to pass intelligently upon the questions of law presented.

There may have been other circumstances which influenced the verdict of the jury than those disclosed in the testimony of the above witnesses. Therefore it is immaterial to determine whether the accused was convicted on circumstantial or direct evidence.

Victor Valois was sworn for the prosecution, and testified that the accused was not an inspector in the employ of the New Orleans Gas Company, and that he had never been so employed, and that he could not be a gas inspector of the New Orleans Gas Company unless he was appointed by the witness.

To this evidence the accused objected on the ground that it was irrelevant and inadmissible, for the reason that no foundation had been laid to warrant said evidence, beyond the testimony of the two witnesses who testified to the statements of the accused when he sought admission to the house. And the further objection was made to the evidence of the witness on the ground that the question whether the accused could or could not be a gas inspector unless appointed by the witness was purely in the province of the jury to determine.

The statement made by the accused when he entered the house was a part of the res gestee. The testimony introduced, therefore, was not for the purpose of contradicting any independent declaration of the accused, made before or after the larceny, but of a fact stated by him, contemporaneous with the larceny. It is not necessary to lay the foundation for the introduction in evidence of any statement made by the accused at the time the offence was committed and so connected with it as to form a part of the res gestee.

The statement by the witness that the accused could not have been appointed a gas inspector of the New Orleans Gas Company without his consent, only corroborated his testimony that the accused had' never been in the employ of the company.

Judgment affirmed.


author: McSnery, J.

text:
    No. 10,891.
    Mrs. Estella Tillotson, Widow of Thomas Crilly, vs. Texas & Pacific Railroad Company.
    Under tlie laws of Louisiana railroad companies are not compelled to fence in their tracks, and it is not negligence on the part of said companies to neglect to fence their tracks at a point where there is no public crossing.
    It is not negligence to fail to fence a trestle over a small canal in an open field where there is no public road, or general thoroughfare. Where a railroad company voluntarily fences a part of its track, this will not impose upon it the obligation to fence its entire track.
    Where an employee, not too young and too ignorant to appreciate the dangers of 'the situation, is aware that proper precautions have not been taken for his safety, and he continues the service notwithstanding the risk, he will be considered as having assumed the responsibility for his own safety.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. S. Benedict and E. M. Httdson for Plaintiff and Appellant:
    1. The injury received by an employe of a railroad company, in the discharge of his duty, in cases where the locomotive and train are derailed and wrecked, of itself raises the presumption of negligence and throws the burden of proof on the company to explain and rebut it, by showing that the injury resulted from no negligence of the company. Cooley on Torts, pp. 661, 662 and 66B; 1 Addison on Torts, paragraph 546 (Ed. 1881, p. 578; 2 Thompson on Negligence, p. 1226.
    2. The servant or employe does not undertake to incur the risks arising from the want of sufficient and skilful colaborers, or from defective machinery, defec • tive structures, appliances, imperfect methods or bad management, with which and under which he is to work. His contract implies that in regard to these matters his employer, the railroad company, shall make adequate provision that no danger shall ensue to him. 2 Thompson on Negligence, p. 946, et ser?.; 46 Mo. E. 168; Gibson vs. Pacific Eailroad Co., 8 Allen, p. 411; 10 Gray, p. 274; 14 Gray, p. 646.
    8. It is the duty of a railroad company to take care that suitable machinery, structures and appliances be provided, and that they be kept in proper condition for use with safety by the employe, and that the business be so managed that no danger shall ensue to the employe. By care is meant reasonable care; and in such cases reasonable care is unquestionably a high degree of care, because the risk of injury is very great when such care is not observed. Cooley on Torts, p. 662; 59 Penn. State E., p. 239; 2 Thompson on Negligence, p. 985, note 5.

      Howe & Prentiss for Defendant and Appellee:
    A surviving widow has no authority to stand in judgment, or prosecute a suit in behalf of her minor children, in her capacity as mother. All actions brought on behalf of minors whose father is dead must be brought by their tutor or tutrix, O. P. 108, 109; 3 An. 563; 11R. 504; 42 An. 548; C. C. 335, 321.
    The right of action given by Art. 2315, Civil Code, as re-enacted by Act Xo. 71 of 1884, is prescribed in one year. C. O. 2315, etc.
    In an action for damages brought against a railroad company, on account of the death of one of its employes, the burden of proof is on the plaintiff to show not only that the railroad company and its employes are chargeable with negligence and fault, but also that the deceased did not, by any act of his, contribute to the accident which resulted in his death. 42 An. 992.
    Under the law of Louisiana railroad companies are not compelled to fence their tracks, and it is no negligence on the part of such companies to maintain and operate their roads in Louisiana without fencing their track. 15 An. 105; 35 An. 498; 36 An. 244.
   The opinion of the court was delivered by

McSnery, J.

The plaintiff is the widow of Thomas Crilly, who was killed in a railroad accident, while in the employment of the defendant company.

She brought suit claiming damages in the sum of $25,000, alleging that her husband, the conductor of a freight train, was killed in a wreck of said train near Seymourville, Louisiana, on the 30th January, 1890, and she alleges that the accident, which resulted in the death of her husband, was-caused solely through the gross negligence, fault, want of care on the part of the defendant corporation, and without fault, imprudence, or negligence on the part of her deceased husband.

The answer of the defendant is the usual one in cases of this kind.

The facts in the case are as follows:

Seymourville is a flag station on defendant’s road. The train on which plaintiff’s husband was conductor was a through freight train. It arrived at Seymourville on time.

There was a section of the freight train behind it, and the train on which plaintiff’s husband was conductor was running, under orders, to make twenty miles an hour. The limit of the speed of freight trains was twenty-five miles an hour.

On the morning of the accident it was foggy, and the headlight on the locomotive revealed objects not more than fifteen feet ahead.

The conductor, Orilly, was on the engine, having taken this position in order to secure the safety of his train in consequence of the fog.

He was a sober and trusted employee of the company, careful and vigilant.

The accident occurred when the train was passing over a trestle in a field. The trestle was over a small canal, uninclosed. A cow was on the track, and was caught between the cross ties and was struck by the train.

The locomotive was overturned and the conductor, Orilly, and the engineer were killed..

There is no complaint that there were any deficiencies in the equipments of the locomotive, and that the road-bed was not in proper condition.

The elements of fault and negligence on the part of the defendant are thus stated by the plaintiff:

1. Compelling by special order the train to be run on such a cloudy and foggy night at the rate of twenty to twenty-five miles per hour, in order also to keep out of the way of another freight train immediately following it and running at the same speed.

2. The construction of open bridges, serving as traps to catch cattle on the track, by their falling partly through, becoming entangled and held fast in the open spaces, and this from the sole purpose to avoid a little additional expense, knowing that the employees on the train could not, if they wished, see and know the condition of the road and track, whirling over it night and day as they had to do.

3. Knowing and recognizing the necessity of fencing the road, as shown by having fenced various parts of the [same, and being then in course of fencing mox’e, yet failing to fence the portion of it about the scene of the accident, in a sugar plantation, it being usual for defendant to fence in sugar plantations, to keep cattle off the track.

There was a trial by jury, and a verdict was rendered in favor of the defendant. A new trial was refused, and judgment was entered according to the verdict, from which the plaintiff appealed.

It is a rule frequently affirmed by this court that the verdict of a jury will not be disturbed unless it is manifestly wrong. •

In the instant case we do not think the verdict was an improper one.

There is no proof that the company knew it was a foggy morning about Seymourville.

There is no law in this State requiring the fencing in of railroad tracks. Stevenson vs. Railway Company, 35 An. 498.

It is not negligence, therefore, for a railroad company to neglect fencing in its tracks where there is no public thoroughfare.

The fact that, as in this case, when it thought it was necessary to do so, the company- fenced a part of its track, will not impose upon the company the duty of fencing its whole track.

The fencing of a portion of it, where the company thinks there'is danger, shows at least, that they are not entirely unmindful of the safety of its trains. In the absence of legislation requiring the entire fencing of the tracks, it leaves the company with the discretion to place fencing where there is, in its judgment, danger. The defendant company seems to have exercised this discretion.

At the place where the accident occurred there was no public thoroughfare crossing the track, and there does not appear to be a great necessity for fencing at that particular point.

The three causes of negligence assigned by the plaintiff may be disposed of by the fact that the plaintiff’s husband knew the orders of'the company relative to the speed of its trains, and the condition of the track where the accident occurred.

In the case of Smith vs. Sellers, 40 An. 530, we said:

“ The servant assumes the risk only of such hazards as are apparently incidental to an employment, intelligently undertaken; and if he is aware that proper precautions have not been taken for his safety, and still continues the service, notwithstanding the risk, he will be considered as having assumed the responsibility of his own security.” Cooley on Torts, 55.

It is not shown that the plaintiff’s husband was too young or too ignorant to appreciate the danger to which he was exposed. Beach Contributory Negligence, pages 371, 372.

Judgment affirmed.


text:
    No. 10,872.
    Moore & Sinnott vs. Louisiana National Bank.
    In the absence of instructions the collecting agent was authorized to infer that the warehouse receipts were annexed to the draft-to secure its acceptance, and were to be surrendered on acceptance, .
    The duty of the collecting bank was to obtain the acceptance of the bill.
    The acceptor being a purchaser was entitled to the goods on his accepting the bill. The sale was a credit sale.
    It was not proven that the defendant had any notice of any condition made to retain the warehouse certificates until payment, or that the insolvency of the drawees was imminent.
    The instruction “ for collection ” in sending a draft to a collecting agent does not relieve him from the duty of obtaining acceptance of the draft and the deli very, if required by the drawees, of the warehouse certificates attached.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J. ■_

      W. S. Benedict for Plaintiffs and Appellants. Cited: 43 An., p. 1; 38 Penn., p. 137; C. C., Art. 2997; C. C;, Arts. 3002, 3009, 3010.

      Branch K. Miller and Henry C. Miller for Defendant and Appellee:
    When a bill of exchange with collaterals attached is sent to a bank for collection and with no other instructions, the duty is imposed on the bank of delivering the collaterals to the drawee when on the demand of the bank he accepts the bill. If the bank on such acceptance refused to deliver the collaterals and loss ensued, it would be liable to the draw.er of the bill who transmitted it to the bank and liable also to the acceptor. See Morse on Banks and Banking; “ Drfty'collecting Bank concerning collateral security,” page 429; National Bank vs. Merchants Bank, 91U. S., page 92; Lanfear vs. Blossman, 1 La. An., page 148.
    Hence this suit, which undertakes to hold liable the Louisiana National Bank, because, with no instructions but to collect, it delivered to the drawee on his acceptance the collaterals attached to fhe bill, can not be supported.
   The opinion of the court was delivered by

Breaux, J.

This is an action by plaintiffs, a firm in Philadelphia, against this defendant to recover the value of fifty barrels of whiskey sold by them to Oppenheimer & Co.

The latter directed the plaintiffs to draw on them, payable in New Orleans, ai one day’s sight, for the purchase price. The whiskey was in a bonded warehouse, for which plaintiffs held certificates.

They drew on the purchasers and attached their warehouse receipts (indorsed by them) to the bill, which was handed to the First National Bank of Philadelphia, which sent it with the receipts to the defendants for collection. The letter was brief, and did not notify the collecting agent to retain the receipts on acceptance of the draft. In compliance with usage the draft was left with the drawees for examination and it was returned by them with their acceptance, and they retained the warehouse receipts.

The acceptors sold these receipts.

The draft was returned by the collecting agent to the Philadelphia bank unpaid.

Plaintiffs allege that the illegal delivery of these warehouse certificates by the defendants enabled the drawees to perpetrate a fraud upon their rights.

Testimony was admitted for the purpose of proving the local usage and custom of collecting banks in matter of retaining or delivering, after the acceptance of drafts, bills of lading or warehouse certificates attached.

Two of the witnesses, cashiers, testify that it is the custom of business houses to surrender all evidences of ownership annexed to the draft, immediately after its acceptance, unless instruction is given not to deliver them before its payment.

Three other witnesses, also cashiers, testify that their respective banks would not deliver the warehouse certificates or bills of lading attached, on the acceptance of the draft, unless so instructed by the party by whom sent.

The sale had been agreed upon. The remaining conditions to perfect it was the acceptance of the draft by the drawees and the transfer of the thing sold into the possession of the buyer.

The seller is bound to deliver the thing which he sells whether sold for cash or on credit; in ease of non-delivery the seller is liable to damages, if any be thereby occasioned.

The term given for payment will not release the vendor from his obligation, unless since the sale the buyer has become a bankrupt or is in a state of insolvency.

The insolvency of the drawees, at the time of the acceptance of the drafts, is not an issue of the case.

The allegation and the proof do not raise that question.

It is the duty of the collecting agent, immediately after receiving a bill for collection, to take the steps necessary to its prompt acceptance, and if the instrument be not accepted, he must take the necessary steps to fix the liability of the drawee.

If he fails he becomes liable.

In order to obtain the acceptance of the drawee, should he decline, unless there are conditions to the contrary, of which he is advised, he must deliver the warehouse receipts attached.

If he retains them, he fails to make the delivery of the property the seller is bound to make.

He retains the property without any instruction from the seller.

Without delivery of this property the drawee’s acceptance would be without consideration and his draft would be placed in commerce without his having received anything.

The acceptance of the draft makes the drawee the principal debtor.

As this draft was made payable one day after sight, with the three days of grace, it was demandable, as to its payment, in four days.

It was not a cash sale; the records do not disclose that the contract implied a sale for cash.

Plaintiff’s counsel argues as if it was an unavoidable inference, that should have controlled the action of the defendant.

The general purpose of the law of negotiable paper and the good of commerce require exactness and certainty.

The contract is well defined.

It must be executed promptly and accurately.

A sale on credit will not give rise to the presumption of an intended cash sale.

The restricted endorsement is relied upon by plaintiffs.

The endorsement for collection does not pass the title or the right to the proceeds of the paper, but it makes the endorsee or collecting agent the trustee of the holder, and as such he can not be rendered liable if he complies with an agreement made manifest by the contract.

From Tiedman On Commercial Paper,” p. 494, new copy:

But where the bill of exchange is payable in the future, in the absence of special agreement the bill of lading is to be delivered to the vendee upon his acceptance of the bill of exchange according to its tenor; and the holder can not insist upon holding it until the bill of exchange is paid. The drawee of the bill of exchange may refuse to accept unless the bill of lading is surrendered.”

It was held in National Bank vs. Merchants’ Bank, 91 U. S. R., p. 92, an analogous case, that in the absence of instruction the plaintiff in error was justifiable in having surrendered the bills of lading annexed to the bill on acceptance.

It is difficult to conceive of any other meaning of the bill.

We abbreviate from that opinion:

If the drawee had given a promissory note for the goods, payable at the expiration of the stipulated credit, it is clear that the vendor could not retain possession of the property after receiving the note for the price.

The consideration of the sale is the note. The acceptor of a bill of exchange stands in the same position as the maker of a promissory note.

If he is denied possession until payment, the transaction ceases to be what it was intended, and is converted into a cash sale.

The purchaser of property on credit has a right to immediate possession, unless there be a special agreement that it shall be retained by the vendor.

Such an agreement is not to be presumed.

The collecting agent has no right to assume that the vendee’s term of credit expires before he has the goods, and require him to accept the vendor’s draft and rely upon his engagements to deliver it a future time.

With reference to the authority of the agent, who was entrusted (as was the agent in the case at bar) with a draft “for collection,” the court holds that the instruction means simply to'rebut the inference from the indorsement that the agent is the owner of the draft. That the instruction was to collect the money, and if the drawee is not bound to accept without surrender, it is the duty of jthe agent to make the surrender.

“ The drafts were all time drafts.”

One was drawn at sight, but in Massachusetts, says the court, such drafts are entitled to grace, and in consequence the court classes it as a time draft.

In Lanfear vs. Blossman, 1 An. 148, it was decided that the holder of a bill of exchange can not, in the absence of proof of any local usage to the contrary, or of the imminent insolvency of the drawee, require the latter to accept the bill of exchange, and he, as holder, retain the bill of lading attached.

The decision is favorably commented upon by Justice Strong, the organ of the court in the case to which we have referred.

It is pleaded that plaintiff’s claim is sustained by the local custom of merchants, and testimony was heard in support of the plea.

The principle upon which such evidence is to be considered is that the parties meant when they sent the draft to let the collecting bank follow the local custom and usage, and that, therefore,.instructions were unnecessary.

It is not proven that plaintiffs knew of any such local usage and custom, nor is it at all manifest that there is any local custom as contended by plaintiffs.

Analysis of the testimony leads to the conclusion that it is not customary to retain warehouse receipts and bills of lading attached to time drafts', after acceptance.

The individual instances proven do not have the force of custom.

They are not the results of acts repeated “ which have acquired the force of a tacit and common consent.” O. C. 3.

It is not the settled custom.

If it were, it would be inconsistent with jurisprudence established by a number of trustworthy decisions which exclude such a custom.

The judgment appealed from is affirmed at plaintiff’s cost.