author: McEnbry, J.

text:
    No. 11,151
    The State of Louisiana vs. John Bennett, Jr.
    The grand jury is drawn to serve until discharged by the court, and not for any particular weelr.
    When an indictment is regularly indorsed and presented in open court and filed, it is not necessary that the minutes should set out the indorsements. The statement that on an indictment a trial bill was presented against the defendant for the crime and filed is sufficient.
    APPEAL from the Eleventh District Court, Parish of St. Landry Perrault, J.

      M. J. Cunningham,, Attorney General, and M. J. Cunningham, Jr. , for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

The defendant was indicted for murder and convicted of manslaughter and sentenced to imprisonment at hard labor for seven years. He appealed.

He moved to quash the indictment and in arrest of judgment. The motion to quash alleges “ that the judicial life of the grand jury that found this bill expired on the last day of the last week by statute of this State, and that any work done and performed by them during this present week is utterly null and void.” In his brief the defendant says: “The peculiarity of our jury law under Act 44 of 1877, and the amendments thereto, is that the jury is called for separate weeks and their term of office, or legal existence, is supposed to expire with the week for which they are called. Out of the jury called for the first week the grand jury is always taken, and although by another part of the jury law it says that the jury thus organized shall constitute the grand jury for that term of court, still by taking the entire law together, giving it the proper interpretation, it would appear that the grand jury of that term were called to perform their labors during the first week of the term.”

Sec. 5 of Act 44 of 1877 provides that not less than fifty days prior to the meeting of any jury term of the District Court, the members of the jury commission shall draw from the general venire box the number of persons required for service at the ensuing term of court; the first fifty names so drawn will compose the grand and petit juries for the first week of court. If in the judgment of the commission additional jurors may be needed, they are authorized to draw in the same manner thirty additional names to serve as petit jurors for each additional week. Section 6 of same act provides that on the first day of any regular jury term of the District Court, and for any called jury term, the judge will select from the list of jurors drawn for the first week a foreman of the grand jury, and the sheriff shall draw from the jury box fifteen names, who, with the foreman, shall constitute the grand jury. The balance of the jurc.rs drawn for the first week shall constitute the petit jury for that week. The act provides that the grand jury so drawn shall serve until discharged by the court. •

The act provides for the drawing and organization of the grand jury, which is separated from the petit jury drawn for a particular week. The act distinctly and unequivocally says that the grand jury shall serve until discharged by the court. Its existence then is not limited to the first week of court, but may continue until the end of the term.

The motion in arrest of judgment alleges that the clerk of court did not state in his minutes the signature of the foreman of the grand jury after the words a true bill,” which it was his duty to do, and which is sacramental to the validity of these proceedings.”

The indictment is indorsed

A true bill, November 14, 1892.

“J. J. Thompson, Foreman Grand Jury.'1'1

And “ filed November 15, 1892.

“ H. E. Estoege, Deputy Clerk.”

There is no complaint that the grand jury did not regularly present the indictment through their foreman in open court. This part of the minutes seems to have been omitted from the record. We presume it was intentionally omitted and only so much brought up as to show the absence of the name of the foreman of the grand jury from the minutes of the court.

The minutes show that a true bill for murder was presented and filed against John Bennett, Jr. There was no reason why the foreman’s name should be inserted in the minutes. It was indorsed on the indictment which was filed and identified with the minutes of the day on which it was presented to the court. This was sufficient.

The proceedings in this case, in presenting the bill and recording the finding, were in accordance with the ruling in case of State vs. Morrison, 30 An. 81Y, and we are inclined to believe that counsel for defendant placed a wrong construction on the language used in part of the opinion.

It says it is “the business and the duty of the grand jury to go into court and through their foreman in open court to present the bill, which is done usually by handing it to the judge. It is the business of the clerk, when the bill is delivered to him by the judge, to state in his minutes the coming of the grand jury into court and presenting the bill in open court, and to record the finding as it is indorsed on the bill with the signature of the foreman.” The'bill in this case was properly indorsed, and when it was filed so as to identify it with the minutes it was in fact the recording of the indorsement on the bill. In the Morrison case referred to there were two grounds for arresting the judgment and setting aside the verdict, an improper indorsement on the bill, and the failure of the record to show that it was presented by the grand jury in open court. In the case at bar the indorsement was regular and the bill was presented in open court. There is no room for any doubt that it had been submitted to the grand jury, acted upon by them, and signed by the foreman in their presence, and presented by the grand jury in open court and filed. The record in the Morrison case, according to the opinion of the court, left these essentials in doubt; “for all that appears,” said the court, “ this indictment may have been the work of the district attorney and the foreman alone, without ever having been submitted to or acted upon by the grand jury.”

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    NO. 11,144.
    The State of Louisiana vs. Albert Wright and Jim Davis.
    Act So of 1880 is not in conflict with Act 29 of the Constitution of the State.
    There is no connection between Act 35 of 1880 and Act 41 of 1877. The first is for the selection of jurors, at other terms than regular jury terms, to try cases provided for in Act 7 of the Constitution. The second act provides for the drawing of juries generally.
    In a motion for a new trial we will not notice complaints to the testimony of a witness, when they have not been objected to at the time and a bill reserved.
    APPEAL from, the Sixth District Court, Parish of Richmond. Ellis, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee.
    P. H. Toler for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted for larceny. Wright was convicted and appealed. There was a mistrial as to Jim Davis.

The defendant Wright attacks the constitutionalty of Act 35 of 1880; and complains of the overruling of his motions for a new trial, and in arrest of judgment.

Article 7 of the Constitution of 1879 provides “that in cases where the penalty is not necessarily imprisonment at hard labor or death the General Assembly may provide for the trial thereof by a jury less than twelve in number.”

.

To carry out this constitutional provision Act 35' of 1880 was enacted by the General Assembly. The title of the act is “to provide for the trial of offences where the penalty is not necessarily imprisonment at hard labor or death.” The ground of attack is that the title of the act does not embrace the several objects alleged to be contained in the act, and therefore violates Act 29 of the Constitution. There is but one object in the act and that is to provide for the trial of offences in accordance with the provisions of Art. 7 of the Constitution. In relation to such offences the act confines itself exclusively to the manner of their trial and the duties of the several officers mentioned in the act are directed solely to this one Object.

If there is anything in Act 35 of 1880 in conflict; with Arfc. §37, R. S., as alleged by defendant, it was certainly repealed by the former act, as Sec. 5 of the act repealed all laws or parts of laws contrary to or inconsistent with the act.

Objection is made in the motion in arrest of judgment to the number of the jury that tried the accused. He ought to have made his objection before announcing himself ready for trial and accepting the jury. It is too late to urge it after he has taken his chances for acquittal.

But Act 35 of 1880 authorized the special jury for such cases as are enumerated in Act 7, and Sec. 3 of the act authorizes the judge to designate the number of jurors to be drawn. Act 44 of 1877 has no relation whatever to Act 35 of 1880, The first is for the selection of jurors to try cases generally, and Act 35 is for the selection of jurors at terms other than regular jury terms for the trial of all cases where the penalty is not necessarily imprisonment at hard labor or death. Under the act it was not necessary to publish the names of the jurors, as it does not require it. The objection that no person can be convicted and sentenced tohard labor by a jury less than twelve is answered by the provisions of Art. 7 of the Constitution, quoted above.

The motion for a new trial alleges that the verdict was contrary to the law and the evidence and the basis of this ‘seems to be that certain testimony of the district attorney was permitted to go to the jury. It was not excepted to at the time and a bill reserved. We can not therefore notice it.

Judgment affirmed.


author: Nicholls, C. J. Fenner, J.

text:
    No. 11,082.
    S. W. Rawlins vs. Pratt, Sheriff, et al. Mutual National Bank vs. Same. Smith & Boulembt vs. Same. Chaffs, Powell & West vs. Same. Consolidated.
    Where an attack is made upon certain proceedings in attachment and the judgment therein rendered, upon the ground of combination, collusion and fraud between the attaching creditor, the debtor and the debtor’s attorney, in order to give the attaching creditor an illegal preference, and the evidence shows that the latter’s rights and priority are not dependent upon the acts complained of b it should stand and be valid independently of them, the attack must fall.

      APPEAL from the Second District Court, Parish of Webster. Richardson, Judge ad hoc.

      Boatner & Lamkin for Plaintiffs and Appellants.

      L. K. Watkins for Third Opponents and Appellees:
    1. The Code of Practice provides for the attachment of property when the debtor has or is about to commit some of the fraudulent acts laid in the statute. C. P. 241, 242, 246, et seq.

    The attachment does not divest the debtor of his property or the right to mortgage or dispose of it subject to the attachment and the privilege arising , therefrom. Drake on Attachments, See'.222, Sixth Edition; see also authorities, Sec. 2 of Syllabus.
    2. Hence, subsequent writs may issue and same property be attached in several cases. 41 An. 116; 43 An. 851, 856 ; 40 An. 203; 35 An. 285; H.D., Vol. 1, p. 149,No,14; Drake on Attachments, 221, 231,260, 261.
    3. If writs are not dissolved the creditors have a privilege on the property, ranking in the order of their attachment, and the property attached “ shall be subject to satisfy such judgment as may be rendered against defendant.” C. P. 264, 265, 722, 723 ; 3 La. 183: 7 An. 1; 6 An. 112, 768; 10 An. 431; 11 An. 710; 8 M. 395, 511; 15 An. 22; 22 An. 523; 35 An. 285; 41 An. 116; Drake on Attachments, Sec. 221.
    4. The state of facts existing at the date of the issuance of the attachment determines the right to the writ, and the rights of attaching creditors. H. D., Vol. 1, pp. 136, 148; 32 An. 348 ; 35 An. 285; 41 An. 227; 1 An. 98; 10 An. 324 ; 43 An. 1062.
    5. An opposing creditor, himself an attaching creditor, is estoppad from alleging that the common defendant attached was not properly subject to attachment. He can make attack on subsequent attaching creditors’ privilege solely on the ground of collusion and fraud.
    6. Alleging fraud “carries the burden of proving it.” C. C. 1848 ; 39 An. 754 ; 34 An. 310.
    7. It takes the consent of both contracting parties to make a contract fraudulent, or otherwise, and under the revocatory action will not be annulled unless the seller and purchaser are both in fraud, and there proves a resulting injury. 43 An. 888,894; Lowenstine & Levy et al. vs. Fudikar, 40 An. 327; 31 An. 196.
    8. Circumstances, even where indicating fraud, do not prove it. 35 An. 339, Ferguson vs. Chastant, and 43 An. 856, Tatum vs. Colvin. Circumstances explained, and opposed by positive evidence,prove nothing in a case.
    9.The circumstance of an insolvent confessing judgment, consenting a mortgage, accepting service on an attachment suit filed by a brother-in-law, have each and all been held as not proving fraud. 26 An. 641, Wilson vs. Chaleron; 43 An. 856, Tatum vs. Colvin; 35 An. 339, Ferguson vs. Chastant. The filing of an answer of emphatic denials after ten days’ citation by the defendant in person, putting the plaintiff on his proof of charges, can not defeat the rights of the attaching creditor under a writ levied eighteen days anterior.
    10.Attorneys at law are only bound by special employment, and not prohibited from taking suits against former clients — allowed varying employment, the-knowledge of the attorney as agent has been held not the knowledge of hia. client. 37 An. 754, Templeman us. Hamilton.

      11. Answers to facts and articles must be taken as a whole. They can not be divided against the party interrogated. And when received in evidence without objection, the court is bound to give full effect to the answers. 18 An. 318, Gull vs. Herwig. A motion to take for confessed after trial begun and after filing of interrogatories in evidence can not be considered.
    12. Motion in this case to have interrogatories taken for confessed (T. 50) is “on the ground that he has failed to produce the Tetters and telegrams he was ordered to produce;” explained fully in answer to motion (T. 51), as permitted under O- P. 140, etseq., and 473; 18 An. 203, 303; 30 An. 825, 827, 514, and 43 An. 1062, 'Chaffe, Powell & West vs. Mackenzie.
    13. Interrogatories on facts and articles can not be used as a means of obtaining books and papers, provided for in C. P. 140, et seq.y and 473; see bill of exception T.
    14 “Answers given make full proof until rebutted; to destroy them the proof must be positive and certain, and can be overthrown only by the testimony of two witnesses, or that of one corroborated by strong circumstantial evidence, or by written proof.” H.D., Vol. 1, p. 568, No. 3; C.P. 354; 1 X. S. 648; 2 h. 538; 12 R. 526; 4 An. 349; 26 An.693; 19 An. 470 ; 5 An. 406. In this case no proof to contradict is offered.
    15. Plaintiff has the right to rebut evidence offered by defendant. C. P. 477.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 24th of April, 1891, Chaffe, Powell&West, a commercial firm in New Orleans, instituted in the District Court for Webster parish a personal action (No. 1098 of the docket of that court) against one M.' M. S. Mackenzie for a large amount of money, accompanying their demand by an application for a writ of attachment on charges of fraud, insolvency, etc.

The writ was granted and property of the defendant seized.

On trial in the District Court judgment was rendered in favor of the plaintiffs for the amount of their claim, but the attachment was dissolved and plaintiffs condemned to pay defendant $30,000 damages for a wrongful attachment. The plaintiffs appealed, and this court in a judgment rendered in the matter at Shreveport on the 23d October, 1891, amended the judgment so as to allow the defendant only $5150 damages and affirmed it in all other respects. On the 24th of October, 1891, S. W. Rawlins, the Mutual National Bank and Smith & Boulemet, creditors of the defendant, each brought suit against him on moneyed claims, accompanying their demands with applications for writs of attachment, which being granted, the sheriff seized under them the same property which had been attached by Chaffe, Powell & West. These three eases went to judgment on the 10th of November, 1891; judgment being rendered in each in favor of the plaintiff therein against the defendant for the amount claimed with recognition of the rights, of privilege resulting from the attachment. In the meantime Chaffe, Powell & West caused execution to issue under their judgment, and the property which had been held under their attachment was again seized on the 26th day of October, 1891, under their writ of fi. fa.

On the 11th day of November, 1891, S. W. Rawlins, the Mutual National Bank and Smith & Boulemet filed third oppositions in the case of Chaffe, Powell & West vs. M. M. S. Mackenzie, No. 1098, in which, alleging their judgments and their attachments and their priority by reason thereof over the plaintiffs in that suit, prayed that they be paid by preference out of the proceeds of the property seized. The defendants — the seizing creditors — met these attacks by answers, in each case substantially alike, in which they first pleaded the general issue and then averred that the attachments and judgments confirming same, on which third opponents rely, were fraudulently and collusively obtained and sustained by consent of defendant. Mackenzie, he being insolvent, with intent to defraud respondent, and confer an illegal preference on third opponents on the property of Mackenzie — wherefore they prayed that their demand be rejected! at their cost and for general relief.

Thinking that as defendants in these third oppositions they were occupying a more restricted position than they were entitled to hold,, Chaffe, Powell & West then brought a direct action against Rawlins„ the Mutual National Bank and Smith & Boulemet.

In their petition, after alleging themselves to be creditors of Mackenzie under the judgment already referred to as having been passed on by the Supreme Court, and that under a writ of fi. fa. issued thereunder at their instance a large amount of defendant’s prbperty had been seized, they refer to the suits and attachments sued out by Rawlins, the Mutual National Bank and Smith & Boulemet, and say that on the 10th of November, 1891, the day on which the aforesaid cases were ripe for default, the defendant appeared in person and pleaded answers of general issue and praying that the attachment be set aside.

That the several eases were at once taken up for trial, and defendant making no appearance, offering no evidence and interposing; no objections, judgments were entered pro forma for plaintiffs, sustaining the attachments on the aforesaid property and ordering the same sold in satisfaction thereof.

That the aforesaid proceedings were fraudulent and collusive and gotten up for the purpose of conferring an unjust and illegal preference for said creditors of defendant over them and to defeat the execution of their judgment on his property, then not executory, but which they knew would become executory, and upon which a writ of fi. fa. would be issued on the 26th of the same month.

That the institution of said suits and issuance of said attachments was by a preconcerted scheme between the said creditors and Mackenzie to defeat petitioner’s rights and confer a preference upon them. That Mackenzie is insolvent, and if the aforesaid attachments are maintained as valid liens on the property aforesaid there will be no other property upon which they could recover, and that the said property is insufficient to pay the writ which they have levied upon it. That they have acquired a lien and privilege upon the said property by the levy of the writ of fi. fa. aforesaid. That in order to protect their rights and avail themselves of the benefit of their seizure it is necessary that the said fraudulent and collusive judgments, so far as they recognize and sustain said attachments and liens on said property, should be set aside and annulled.

’They, therefore (describing each of said judgments), prayed that •the judgment in favor of S. W. Rawlins against Mackenzie — that of the Mutual National Bank against him (one of the notes on which the latter judgment was obtained not being due until May, 1892), and that of Smith and Boulemet against him be amended and avoided in so far as they maintain the attachments therein issued and levied upon the property seized under petitioner’s writ of fi. fa. against Mackenzie. Mackenzie was made a party defendant to this action.

The three judgment creditors thus made defendants answered by first pleading the general issue; they next averred that Chaffe, Powell & West by their judicial admissions, judicial allegations, proof adduced and sworn testimony of themselves in their case, No. 1098, in the Second District Court for Webster parish vs. M. M. S. Mackenzie, have estopped themselves from bringing the action herein. They alleged that the petition of plaintiff in this case disclosed no cause of action. They further alleged that the attachments herein attacked were levied and sued out in good faith by the plaintiffs therein severally on just legal grounds for attachment without any collusion, without privity of interest, without fraud and without any understanding or concert of action between themselves severally or with Mackenzie, and that by virtue of said attachments in the suits alleged and the judgments therein they have severally obtained the rights and privileges of attaching creditors allowed by law, and the judgments granted against the property and its proceeds alleged by the plaintiff and fully ' shown by the judgments and records in the suits herein sought to be annulled by reference hereto annexed, are higher in rank than plaintiffs’ herein and said judgments are res judicata. They further alleged that the plaintiff has no privilege on the property and proceeds attached as alleged. That their judgment was an ordinary judgment, conferring no privilege against the property of Mackenzie, and the writ of fi. fa. was not issued and not in the hands of the sheriff when defendants’ writs of attachment were severally issued and levied on said property. They therefore prayed that the suit and action to annul brought by plaintiff be rejected.

This direct action — the suit No. 1098 and the third oppositions were consolidated and tried together.

Chaffe, Powell & West (who for purposes of designation we will style the plaintiffs) do not directly attack the correctness of the claims of the third opponents against Mackenzie, nor dispute the verity of the facts upon which the attachments are based. They contend that the proceedings themselves and the judgments therein rendered were collusive and fraudulent — the result of a preconcerted scheme between those creditors and MacKenzie, gotten up for the purpose of conferring an unjust and illegal preference on them and of defeating them of their rights under the execution of their judgment. They claim that Messrs. Watkins & Watkins, who were iliackenzie’s attorneys in his suit, were, shortly after being retained by Mackenzie, employed by Rawlins, who placed in their hands the claim upon which they subsequently sued out the attachment on behalf of Rawlins mentioned in the pleadings; that the defence made in the original attachment suit (No. 1098) was made by those attorneys as part of the preconcerted plan; that one of the members of the law firm was present at Shreveport watching the issues of the case on appeal, and that he early on the morning of the 24th November, 1891, telegraphed his brother and partner the conclusions reached the night before by this court; that thereupon the latter caused attachments at once to issue on behalf of the three third opponents upon pleadings prepared by anticipation to meet the precise contingency; that Mackenzie, both before and after the judgment of this court on the said appeal, had warned a number of his creditors (notably the three opponents) to be on the alert for quick action, and had urged upon them to place their respective claims in the hands of Watkins & Watkins; that the three opponents had acted on this suggestion ; that on the day the suits brought by them were ripe for judgments for default, Mackenzie, instead of actively contesting or delaying them, had gone forward and advanced the cases by placing them at issue by a simple geneial denial, thus enabling the plaintiffs to take them up and dispose of them at once; that all these parties knew that plaintiffs’ judgment would not be executory until after the legal delays for a rehearing had expired, and that execution would issue thereon on the 26th of November, and they thought to forestall -this action by these collusive attachments; that in the original suit of plaintiffs against Mackenzie an intervention was filed in the name of Rawlins, in which it was charged that plaintiffs’ attachment of Mackenzie’s property was a collusive attachment taken out in fraud of Rawlins; that although the petition of intervention was signed by A. J. Murff as intervenors’ counsel, the latter had no communication with Rawlins, but had been employed by Messrs. Watkins & Watkins, and that the defence of the suit and the intervention were part and parcel of the general plan which had been devised to defeat plaintiffs of their rights.

A great deal of testimony was adduced on the trial and an immense record has been brought up.

The judgment of the court below was against Chaffe, Powell & West and in favor of the defendants in the direct action for nullity of judgments and dissolution of attachment, and in favor of the third opponents on their oppositions, recognizing their priority over the seizing creditor upon the proceeds of the property and ordering them to be paid accordingly. The seizing creditors (Ohaffe, Powell & West) have appealed.

We have examined very carefully the evidence in the record, and we find no act done which made it necessary to have the concurrence of either Mackenzie or the Messrs. Watkins in order to bring about the precise condition of affairs presently existing.

The attachment suit of the plaintiffs against Mackenzie was public, and the proceedings taken in it were open to inspection by every one. The amount of the seizure therein was so large as to necessarily carry with it, if maintained, as the plaintiffs themselves say, the loss of any claim other than their own. The attention of every creditor of Mackenzie was drawn to that seizure, and its progress was watched beyond question with great interest. Rawlins, one of the third opponents, who it appears was a director of the Mutual National Bank, was one of those creditors. He was at Minden just after the attachment, and was not only fully advised but alive to the necessity of protecting his interests. To that end he called upon Messrs. Watkins & Watkins, his regular attorneys, and sought to retain them, but was answered that they were McKenzie’s attorneys in the pending suit and could take no employment inconsistent with their duty to him in that suit. They finally consented to represent Rawlins when their relations with Mackenzie should have terminated. We have no reason to believe that they by reason of that fact failed in any way in their duty to Mackenzie.

On the contrary the very vigorous defence made in his suit resulting in a dissolution of the attachment and a judgment in the District Oourt for $30,000 against the plaintiffs on defendant’s reconventional demand for damages, and which judgment necessitated an appeal to this court, proves conclusively that Mackenzie’s interests were not neglected. On the morning after this court had rendered its decree in that case, Rawlins, who was in the city of New Orleans, saw an announcement of the result in the morning papers. He at once advised the officers of the bank, of which he was a director (which bank was also a creditor), and dispatches were at once sent out by both to the Messrs. Watkins to take steps to protect their interests. Steps were immediately taken in the shape of attachments against Mackenzie, under which the same property which had been attached by plaintiffs was placed under seizure. These attachments were issued on the 24th of October, 1891, the day after the decison of the Supreme Oourt in the plaintiffs’ suit. The petitions in those cases and in a similar proceeding brought on the same day by the firm of Smith & Boulemet, one of the three third opponents, were personally served on the same day on Mackenzie.

The District Oourt for Webster parish convened on the 9th of November at its regular session. At that time the delays for answering in the last attachment suits had expired, but no default under the law could be taken on the first day of the term. The next day Mackenzie filed his answers pleading a general denial. The cases were at once taken up and disposed of and judgments rendered in favor of the plaintiffs in those suits, as has already been mentioned.

The plaintiffs in their brief, comment very severely upon the course taken by those plaintiffs and their attorneys. If (say they) those parties had just reason to issue attachments against Mackenzie, how comes it they delayed moving until after the decision of this court; why did they not move before? The answer to this is very obvious. It would have been exceedingly unwise on the part of those creditors, who owed no duty to the plaintiffs, to take any action in the face of plaintiffs’ attachment covering nearly the whole of Mackenzie’s property. Their only hope was to take advantage, as they had a perfectly legal right to do, of any opportunity which might present itself to throw forward their claims. The opportunity did present itself and they availed themselves of it legally.

The plaintiffs complain of the fact that one of the Messrs. Watkins should have been at Shreveport whilst the other remained at Minden, and that pleadings for attachment should have been prepared ready to be served at once on advices from Shreveport, and they further complain of those proceedings having been taken whilst their case was held up by reason of the fact that the delays for rehearing had not expired. Plaintiffs’ rights were not at all affected by the fact that the Messrs. Watkins were attorneys in the case. Any other vigilant attorneys would have followed the identical course without the possibility of legal objection from the plaintiffs, and as we have seen as a matter of fact the firm of Watkins & Watkins at Minden were directed by dispatches from New Orleans on the 24th of October, to proceed.

The plaintiffs themselves could have anticipated the possible result of their suit and prepared accordingly, just as the third opponents did. They were not forced to wait the issuing of a fi. fa.; They could themselves have had issued new writs of attachment based upon facts which occurred subsequently to their original attachment.

We see nothing in plaintiffs’ complaint that Mackenzie filed answers in the attachment suits, and by placing them at issue they enabled judgments to be taken at that term of court. The judgments were taken on the second day of a regular term of court, and if court adjourned on the third day, as it did, there is no reason to believe it would have adjourned so quickly had there been any suits before it requiring a delay of a few days to terminate them. It would have been the duty of the judge to have held the court open a reasonable time, but the answer to this objection is found in the fact that the rights of these parties are not dependent upon the judgments, but upon the attachments. The right of priority of payment, which is the matter with which plaintiffs are alone concerned, springs from their attachments, which take rank from their date, and the suits themselves might have been left open for months without affecting the legal situation. 43 An. 856, Tatum vs. Colvin. We may assume for the purposes of this suit that Mackenzie, both ' before and after the decision of this court, may have written to his creditors, and among them to the third opponents, advising them of the situation and urging them to protect themselves and suggesting to them to send their claims to Messrs. Watkins & Watkins, and that on the strength of the information so derived the third opponents acted. If they had legal claims against Mackenzie, and the condition of facts justified attachments, they were entitled to proceed and were not prejudiced by the mere circumstance that their information came from their debtor. If they could have legally proceeded on information derived from a third person, the mere fact that Mackenzie, over whose actions they had no control, seeing ruin before him under any and all circumstances, and doubtless embittered against the plaintiffs whom he regarded as the cause of his ruin, should have written them, can not diminish their legal rights.

But the assumption we have made is not true, for, as we have seen, Rawlins acted on the strength of what he saw in the newspapers, the bank acted at the instance of Rawlins, and though Smith & Boullemet were put on their guard by Mackenzie, they say they intended acting anyhow, and intended sending their ciaim to Messrs. Watkins & Watkins, their regular attorneys for Webster parish.

We are not called upon to express any opinion upon the relations between Messrs. Watkins & Watkins and Mackenzie as resulting from the fact that they acted adversely to him immediately upon the termination of their relations in plaintiffs’ suit.

In view of the condition of his affairs, we think it quite likely he was indifferent as to who the attorney in the case might be.

The three opponents, and Mackenzie and the Messrs. Watkins, deny positively, under oath, any combination, collusion or fraud. The plaintiffs have had ample opportunity to test all the facts in the case in a direct action; the judgment of the lower court was against them, and we see no reason to reach a conclusion different from that reached by the district judge. It is therefore ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.

On Application por Rehearing.

Fenner, J.

Impressed by the strong sense of injustice resulting from our decision evinced in the respectful but earnest brief of the applicant for rehearing, we have re-examined these cases in their every detail, with the most scrupulous care.

The salient points urged are:

1. That the attachments were levied at a time when appellants’ hands were tied by the pending suit before this court.

2. That the apprehension of fraudulent disposition of the property attached by Mackenzie, which was the basis of the attachment, was unfounded, because the property was then under seizure in the hands of the sheriff.

3. That the attachments were fraudulent and collusive.

As to the first point it is true that appellants had attached the property of their debtor, that a trial of the case in the lower court had resulted in a judgment dissolving their attachment, and in a further judgment against them in favor of their debtor for damages exceeding the entire amonni of their claim against their debtor, and that the necessary result of this judgment was to tie their hands until, by appeal, they could either reinstate their attachment, or, at least, reduce the judgment in reconvention so as to leave them still creditors of Mackenzie, which latter relief alone they subsequently obtained.

This state of facts certainly operated a great misforfcaae to appellants; but we have sought in vain for any principle of law which would justify us, on account thereof, in denying to other creditors their legal right to prosecute their claims and to avail themselves of all legal remedies to enforce them.

The second point is equally and obviously without legal force as a bar to the right of attachment by other creditors. It has never been held, so far as we are aware, that the attachment and taking into the hands of the sheriff of the debtor’s goods by one creditor prevented other creditors from attaching the same goods.

It- presents the common case of successive attachments of the same property, in which, if the first attachment is set aside, the second succeeds to priority of privilege.

Appellees, therefore, had the legal right to attach the property at the time and in the manner in which they did if they had the grounds for so doing prescribed by law. All questions as to the intrinsic merits of their attachments are concluded by the judgments rendered in the cases, which are final and have not been appealed from, and which exhibit, on the face of the records brought before us, no nullity or irregularity in the proceedings. These judgments, as well as the judgment rendered by this court in appellants’ own suit against Mackenzie, are not within our power of review on the mere merits thereof in the present proceedings. Appellants’ relief, therefore, must rest exclusively on the third point above stated.

They invoke the nullity of the attachments and judgments on the ground of fraud and collusion.

On this subject we recently said: “Fraud is never presumed. While courts recognize the cunuing concealment in which it shrouds its devious practices and the difficulty of tracing it by direct proof, and therefore give due weight to all circumstances indicating its existence, yet such circumstances must be of a character to convince the mind clearly before they can support a conviction of such an offence, almost akin to crime.” Calhoun vs. McKnight, 44 An. 399.

In another case, involving a question of fraudulent conveyance, we said: “It may be unfortunate for plaintiffs that they had no means of proving the knowledge of the vendee except by putting the parties themselves on the stand. They have made the parties their own witnesses. These have unequivocally sworn that the son did not know of his father’s insolvency, and there is nothing to contradict them. Plaintiffs have no alternative but to abide the result.” Newman vs. Mahoney, 44 Ah. 423.

The same is true here. Appellants propounded interrogatories on facts and articles to their adversaries and their answers negative all fraud or collusion. These answers have not been successfully contradicted, nor is any circumstance proved in the case inconsistent with their truth. It may be that Mackenzie, in his animosity against appellants, looked with complacency upon the proceedings of appellees and was disposed to favor them, but this does not establish either frand or collusion as against the latter. They could not be prevented from exercising their legal rights because defend - ant chose not to oppose them. The course taken by the appellees was the one obviously suggested under the circumstances, which were well known to them in the protection of their interests as creditors.

Nothing in the case awakens a doubt in our minds that they would have pursued the same course, whether their debtor favored or op - posed it; and if the attorneys, whom they had employed, had declined the case, they would certainly have employed others who would have taken the same proceedings. Nothing prevented those attorneys from acting for the creditors except their supposed duty to Mackenzie, and if the latter does not complain no one else has the right to do so. Certainly the creditors can not be prejudiced in their legal rights. If the attorneys felt themselves free to act, the creditors had the right to employ them.

This whole subject was very fully considered in a case recently decided by the Supreme Court of Texas, and the conclusions there reached more than sustain our rulings. Goodbar vs. Oity National Bank, 78 Texas, 461.

It was there in substance held that if'the debt claimed was just, and grounds for attachment existed, and the real motive of the attachment was to collect the debt, and not merely to aid the defendant in placing the property beyond the reach of other creditors, even the consent of the debtor would not invalidate the attachment.

We do not and need not go so far. In this case, the consent of the debtor was neither asked or required. The necessity of the action taken at the time when it was taken, and the fatal effect of delay, were apparent to the creditors. If they had not attached before appellants’ judgment became executory, it was obvious that the seizure of the goods under fi. fa. would destroy all hope of collecting their claims. What need of searching for any unlawful motive? The law gave them the right to attach and to secure the consequent preference over appellants; and the “ hard case ” of appellants can not justify us in relieving it by making bad law.”

Rehearing refused.


author: Fenner, J.

text:
    No. 10,924.
    William Kern vs. James I. Day.
    1. The attaching creditor of one who appears on the books of a corporation as registered owner of shares of its stock can not hold the stock against the true equitable owner who holds the certificate of stock duly indorsed by the debtor.
    2. No estoppel arises to prevent the true owner from asserting his title. His permitting the debtor to appear as holder on the books of the corporation did not invest the latter with such indicia of title as could prejudice third persons, because he could not sell or dispose of the stock without producing the certificate.
    8. As a general rule, attachment gives the creditor no .better right to the property attached than the debtor had at the time of the levy; it takes effect only on the debtor’s interest and does not amplify his title.
    4. Whether the equitable owner, being a corporation, had the right to own stock in another corporation ist dependent on its chatter, which is not produced, or upon the circumstances under which the ownership was acquired, which are not in evidence; and, at all events, the attaching creditor has no right or interest to raise such question.
    5. The alleged violation of its charter by the bank in electing the debtor as a director when he did not own, in his own right, twenty-five shares of stock, has no pertinence in this case, because the garnishee is not shown to have been privy thereto, and if it had been, that would not forfeit its ownership of the stock in favor of third persons not connected with either corporation.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      T. M. Gill for Plaintiff and Appellant:
    1. All transfers of shares of stock of the Citizens Bank of Louisiana must be registered on the bank’s books. Charter filed and made part of record, p. 122, Rule XI and See. 18, p. 17.
    2. Complete and perfect transfer must be recorded on the corporate books. Cook on Stocks and Stockholders, Sec. 375.
    3. The legal qualifications of a'’director of the Citizens Bank of Louisiana, is a natural person, a citizen of the State, and a bona fide owner in his own name of 25 shares of paid up stock. See Charter Citizens Bank, pp. 16, 58, 97, 98, 100 and US.
    4. A party who is at liberty to abstain from an act and does not do so can not be screened from the legal consequences of said act. 18 An. 64.
    5. A party who by his own voluntary act places himself in a situation as to matter of fact, founded on obligation of truth which every man is under, etc., to prevent unavoidable injury, confusion, falsehood and want of confidence in men, or uses concealment, is estopped from succeeding in such action. 5 An. 22, 107.
    6. The insurance company could not own stock in the bank, and therefore can not claim it. 28 An. 173,174; 37 An. 237; Boone on Corporations, Sec. 107; Cook on Stocks and Stockholders, Sec. 317.

      Leovy & Blair for the Sun Mutual Insurance Company, Garnishee :
    1. The title and possession of shares of stock of a corporation passes by delivery of the certificate therefor properly endorsed or accompanied by a blank power of transfer. Registry of transfer on the books of the corporation is not necessary either as a muniment or as evidence of title. Pitot vs. Johnson et al, 33 An. 1286; Factors and Traders Insurance Co. vs. Dock Co., 31 An. 49; Smith vs. Slaughter House Co., 30 An. 137S
    2. Such indicia of title protect the real owner of stock from seizing creditors of the person in whose name the stock stands on the books of the corporation. He is not estopped from asserting his title by his failure to have the stock transferred on the corporate records; for no one has any right to rely upon the books of the corporation as proof of ownership. Authorities supra.

    3. An essential element of estoppel en pais is that the person relying on it must have been misled to his prejudice by the declarations or conduct of the one against whom it is pleaded.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff, a judgment creditor of defendant, sought to seize by garnishment process certain shares of stock which stood in the name of the defendant on the books of the Citizens Bank.

The bank and the Sun Mutual Insurance Company were made garnishees.

The bank answered: “Defendant James I. Day was and still is registered as the holder of twenty-seven shares of the stock of this bank, but at and prior to date of service said bank had issued and there is still extant the certificate for said shares transferable by delivery so as to convey title to said shares, and no seizure, or sale, or transfer of said shares can be effected without the production and surrender to the bank of said certificate, and accordingly the bank answers that only the holder of said certificate was, at the date of said service or since, the owner of said shares; and the bank, further answering, says that the San Mutual Insurance Company has notified the bank that said company is the holder and owner for value of said certificate and said shares, and was the owner at and prior to date of service of interrogatories herein.”

The Sun Insurance Company answered:

“No. And for further answer to all of said interrogatories garnishee says that it holds in its possession, and has had in its possession and control ever since the date of its issuance, a certificate for twenty-five (should be twenty-seven) shares of the capital stock of the Citizens Bank of Louisiana, issued to Jas. I. Day, defendant herein, on November 22, 1888, and numbered 1749; but garnishee says that defendant is not and never was the owner of said shares of stock or any part thereof or of any right or interest therein, but that the same now belong and have always, ever since their issuance, belonged to garnishee and were paid for by it, and were issued in the name of its president for purposes of business convenience; that, accordingly, on the date of the issuance of said certificate for said stock the said defendant delivered said certificate for said shares of stock to garnishee, who has ever since had the same in its custody and control, and at the same time executed and delivered to garnishee an irrevocable power of attorney authorizing L. M. Finley, its vice president, or any other person whose name might be inserted in the blank left for that purpose, to transfer back to garnishee on the books of the said Citizens Bank of Louisiana the said twenty-seven shares of stock; that these facts have for years been known to the said bank.”

The answers of the bank were not traversed. Those of the insurance company were traversed, but no evidence was introduced to contradict them except as to the last statement of notice to the bank, as to which the president, Mr. Nott, testified that he was not aware of such notice; but Mr. Nott had only been president for two or three months and his testimony does not negative the fact of notice before his incumbency. That point, however, is immaterial.

The facts stated in the answers, being uncontradieted, must stand as true, and plaintiff’s traverse has nothing to rest on except the point of law therein made, “that the Sun Mutual Insurance Company, if its answers be true, having by its own- voluntary act, which it was at liberty to abstain from, paid for said stock and permitted the title thereof to be registered on the books of the bank in the name of Day, and the same having been seized herein, is estopped and precluded from denying the fact of ownership in Day or to charge the falsity of the same to affect third persons.”

The point of law is not sound.

The insurance company, having paid for the stock and being the true owner and holding the certificate thereof properly indorsed by Day, stood in a position at least as strong as that of a bona fide purchaser or pledgee with like transfer of the certificate. The law applicable is well stated by Mr. Morawetz: “ A creditor by attachment is only entitled to step into the place of the debtor in respect to the latter’s property and contract rights. He is not entitled, upon any principle of justice or common honesty, to pay his debt out of property which does not in truth belong to his debtor. * * * It is wholly immaterial whether the shares have been transferred on the company’s books or not. * * * By the terms of the certificate the corporation certifies that the holder is entitled to a specified number of shares, and that these shares are transferable upon a surrender of the certificate by the holder or his assignee. By the contract of the parties the corporation is liable to the assignee of the certificates to receive him as a shareholder upon a compliance with the forms of a transfer, and it is not liable to receive any assignee until the certificate is surrendered. To hold that the creditor of a person appearing as shareholder upon the company’s books can obtain a valid title to the shares by levying an attachment or judgment after the holder has assigned the certificates to a purchaser for value, would, therefore, not only be in violation of the rights of the equitable owner, but would be in violation of the contract entered into by the corporation.” 1 Morawetz, Priv. Cox’p., Sec. 196.

These principles have been repeatedly adopted and applied by this court. Pitot vs. Johnson, 33 An. 1286; Factors Ins. Co. vs. Dock Co. 31 An 49; Smith vs. Slaughter House Co. 30 An. 1378.

This case is not dissimilar to one recently decided by us, where a creditor of the registered owner of a vessel seized it and attempted to hold it against the true equitable owner, in which we said: “ It is claimed that, as attaching creditors, they have acquired rights superior to those of their debtor and can maintain his title though he himself could not. This is contrary to the general principles of attachment, which give to the attaching creditor no better right than his debtor had to the property attached.” Bank vs. Williams, 43 An. 422.

Day had no right to this stock. He could not sell or dispose of it, having transferred the certificate; and, therefore, the principle, i! Where the debtor can sell his creditor may attach,” is not violated.

No question of estoppel arises. The insurance company had invested Day with no indicia of ownership that could enable him to prejudice third persons. It retained the certificate duly endorsed, without which Day could not validly dispose of or incumber the stock.

The power of attorney endorsed on the certificate, though the name of the transferee is left blank, is the equivalent of a transfer to the holder and is the ordinary mercantile method of executing such transfer. 1 Morawetz, Sec. 185.

We can perceive no right or interest in plaintiff to raise question as to the right of one corporation to become a stockholder in another. The record does not exhibit the charter of the Sun Insurance Company, which may confer such power; and if not, the case might fall within the exceptional circumstances under which such transactions may be supported. Morawetz, Secs. 431, 432.

Plaintiff s right is satisfied when be finds that the stock seized is not the property of bis debtor.

The fact that the Citizens Bank elected Day a director under a provision of its charter which prohibits any one from being director who does not own twenty-five shares of stock is impertinent to this ease. The insurance company is not shown to have been privy thereto, and if it had been, we can discover no ground on which that would entail a forfeiture of its ownership of this stock in favor of third persons not connected with either corporation.

Judgment affirmed.


text:
    No. 11,033.
    State National Bank vs. John Flathers.
    i. One who, as security of negotiable notes, bas executed a mortgage whicli lie had the right and capacity to make, on property belonging to himself, by an act suggesting on its face no defect, duly recorded, and importing confession of judgment in favor of the mortgagee and any future holder of the note, can not destroy its value in the hands of a subsequent holder by pleading secret equities between the original parties created by his own fault, negligence or imprudence, of which the subsequent holder had no notice and no means of information.
    2. The above rests on no assertion that mortgages are negotiable, but on other principles of law and equity fully stated in this and previous opinions.
    8. When cases arise in which the above elements or some of them are missing, they will be determined according to their particular facts.
    4. Under repeated decisions of the United States Supreme Court the objection that a national bank bas loaned money on real estate in violation of the prohibition of the national banking latvs does not lie in the mouth of the delinquent debtor of such loan, and does not disable the bank from enforcing the same by foreclosing the mortgage. The United States alone can complain of such violation.
    APPEAL from the Civil District Court for tbe Parish of Orleans» Monroe, J.

      James McConnell, Horace E. Upton and Browne & Choate for Plaintiff and Appellee:
    1. The pledgee of a note secured by mortgage has a right to take measures, that is, to sue for payment in his own name, to satisfy the debt to secure which the pledge was made, subject to the obligation of accounting to his debtor. R. C. C. 3170 (3137); 33 An. 626; 30 An. 714; 28 An. 419; 21 An. 3; Insurance Company vs. Lozano, 39 An. 321.
    2. The pledgee of notes secured by mortgage can enforce the collection of them by executory as well as by ordinary process. 29 An. 548; Chaffe & Sons vs DuBose, 36 An. 257.
    3. An agent if clothed with the necessary power may sue in his own name. 2 L. 264; C. C. 2954, et seq.; 4 R. 517; 4 N. S. 481; 5 N. S. 40; 5 R. 47 ; 12 An. 298; 32 An. 288; Scionneaux vs. Waguespack et al.
    4. The law abhors a multiplicity of actions against the same person. 15 An. 311. Separate holders of the same series of mortgage notes may be joined as plaintiffs to enforce payment.
    5. Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is estopped from averring against the latter the existence of a different state of things at the same time. Cross on Pleading, p. 74; 5 R. 523; 4 An. 293 ; 5 An. 368 ; 9 An. 528; 12 An. 473 ; 39 An, 50; 30 An. 1040.
    6. The sale or transfer of a note secured by a special mortgage and vendor’s privilege carries with it both the mortgage and the privilege. 39 An. 1052; 37 An, 754.
    7. A national bank may loan on security of a mortgage, if not objected to by the United States. 98 U. S. 621; 103 U. S.99; 112 U. S. 439.

      S. Plaintiff, as holder of one of the notes, had a right to sue in its own name. 19 An. 526; C. C. 2141, No. 1; 2 La. 264; 19 An. 182; Hen. Dig., p. 180, No. 5; 2 An. 376, 441; 18 La. 92; 3 N. S. 291, 392; 5 La. 48; 4 La. 219; and others quoted in brief.
    9.Plaintiff has right to assert the title of its transferrer, if need be, who acquired bona fide before maturity and for a valuable consideration. Levy vs. Pord, 41 An. 879; IDaniel Neg. Inst. Sec. 7S2; 19 An. 507; 12 An. 126; 20 An. 282.
    10. An indorsement on a note made before its maturity forms part of it as though originally written in the note. 1 Daniel Neg. Inst., Sec. 151;-39 An. 713; 1 So. Rep 797; 2 So. Rep. 418; 42 An. 667; 18 An. 124.
    11. A mortgage in favor of a person named, and any future holder of a negotiable note by which it is secured, is negotiable and passes by a delivery of the note. 35 An. 1; 16 Wall. 273; 16 An. 435.

      Louqne & MóGloin for Defendant and Appellant:
    1. The question of negotiability of a mortgage accompanying commercial paper is one of Louisiana law, determinable in accordance with the Civil*Code of this State, and the decisions thereunder.
    2. Ohoses in action are not negotiable, but pass by assignment subject to all equities. C. C. 2644; 16 An. 412; 19 An. 100; 21 An.140; 23 An. 200; 23 An.270; 25 An. 50; 25 An. 164; 29 An. 105.

      3. A mortgage accompanying a promissory note passes with the latter from hand to hand; hut unlike the note, the mortgage remains open to all defences. 3 R. 435; 14 An. 596; 17 An. 125; 20 An. 265; 26 An. 376; 28 An. 853; 31 An. 681.
    4. A national hank is prohibited by law to hold mortgage securities; and it is without right to appear in court attempting to enforce the same.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff is the bona fide holder, by transfer before maturity, of negotiable notes executed by defendant, payable to his own order and by him endorsed and secured by a mortgage of concurrent date consented to by defendant in favor of th6 mortgagee and “ any future holder or holders of said notes,” by act importing confession of judgment.

Plaintiff proceeded to enforce his mortgage by executory process and was met by an injunction taken out by defendant on- the grounds:

1. That he executed the notes and mortgage in favor of the mortgagee, G. A. Lanaux, who was his commission merchant, on the latter’s representation that the accounts between them showed defendant to be .a debtor in the sum of $6000, and that $5000 more would be necessary to furnish him with future necessary advances; but that he subsequently discovered that said representations were false and that, in truth, the said mortgagee was largely indebted to him.

2. That since the execution of the notes he has shipped to the mortgagee a larger amount of produce than the sum of the notes.

3. That the plaintiff, by the national banking law, is prohibited to hold mortgage securities and can not be heard in court when seeking to enforce the same.

To the petition for injunction the bank filed an exception of no cause of action based on the grounds:

1. That the alleged equities between defendant and Lanaux could not avail against the bank as a bona fide transferee of the note and mortgage before maturity.

2. That the defendant was incompetent to urge the objection based on the national banking law, the right to do so being reserved exclusively to the United -States. From a judgment maintaining the exceptions the defendant appeals.

I.

The defendant admits that the negotiability of the notes bears the equities alleged by him as against the notes and his personal liability thereon, but he contends that the mortgage is not negotiable and that, as against its enforcement, they furnish a valid defence. It is true tha£ mortgages are not negotiable. This court has repeatedly so held, and has never, to our knowledge, held to the contrary. Schmidt vs. Frey, 8 Rob. 435; Bowman vs. McKleroy, 14 An. 596; Bouligny vs. Fortier, 17 An. 125; Doll vs. Rizotti, 20 An. 265; Garner vs. Gay, 26 An. 376; Morris vs. White, 28 An. 856; Jennings vs. Vickers, 31 An. 684.

But this court has very deliberately held that a bona fide holder of a negotiable note acquired before maturity, secured by a mortgage duly recorded, which has been executed by one having lawful authority to make it, and bearing on its face nothing to impeach its validity, cannot be defeated in his mortgage rights by secret equities between the original parties existing before or arising after its execution, of which neither the act nor the public records afforded any notice and of which he had no actual notice, at least when such .equities are opposed by the original mortgagor or in his right. This was clearly and emphatically held in the ease of Carpenter vs. Allen, 16 An. 435, and the decision was not based on the principle of negotiability of the mortgage, but on the different principles, viz.:

1. Because when one of two innocent parties must suffer, the law throws the loss on him by whose negligence or fault the damage is occasioned.

2. Because a mortgage is a real right created only by observance of the forms of law, required to be recorded like sales of real estate, such registry being required especially for the protection of third persons, who are entitled to look to it for protection, and, without actual notice, are not required to look beyond it.

We consider that these principles were substantially recognized in the following cases: Gardner vs. Maxwell, 27 An. 562; Taylor vs. Bowles, 28 An. 294; Davis vs. Greve, 32 An. 420; Butler vs. Slocomb, 33 An. 170.

We have noticed, hut do not deem it necessary to answer, the criticism of the applicability of these cases, because in a more recent case we have distinctly and very considerately affirmed Carpenter vs. Allen, and have used the following language, the force of Much impresses our minds as strongly now as then: The conclusion thus reached is supported by law, justice and equity, and tends to give security in transactions of the kind considered in this case. Holding differently would be to authorize debtors, ostensibly such by their own acts or culpable omissions, to take advantage of their own laches in order to prejudice and entrap innocent parties becoming bona fide creditors, and to desecrate the sanctity of justice by closing the fatal door upon them.” Schepp vs. Smith, 35 An. 1.

A like rule is enforced by the Supreme Court of the United States and is recognized in our sister States. Carpenter vs. Ñongan, 16 Wall. 273; Sawyer vs. Prickett, 19 Wall. 166; 1 Daniel Neg. Inst., Secs. 834, 834a.

We have critically examined the eases relied on by defendant and find that, when properly analyzed, they do not necessarily contravene the principle stated.

Thus in Schmidt vs. Frey, 8 Rob. 440, the mortgage contested was given on property not belonging to the mortgagor, as appeared from the act itself.

In Bowman vs. McKleroy, 14 An. 396, the equities were not opposed by the mortgagor but by a prior mortgage creditor.

In Doll vs. Rizotti, 20 An. 265, the mortgage had been canceled and erased from the record before transferred.

In Garner vs. Gay, 26 An. 376, the act of mortgage showed on its face a contract in contravention of law.

In Morris vs. White, 28 An. 856, the property mortgaged did not belong to the mortgagor.

In Bouligny vs. Fortier, the mortgage had been consented by a married woman and was held to be without effect as in contravention of law.

The general diota of these cases must be restricted to the cases in which they are made.

No case is cited at all parallel in facts to those relied on in this opinion, in which their principles have been impugned. Our opinion rests upon no assertion of the negotiability of mortgages, but upon other principles of law and equity which forbid a man, who, as a security for negotiable notes, has executed a mortgage which he had the full right and capacity to make, on property belonging to himself, by an act suggesting on its face no defect, duly recorded and importing confession of judgment, in favor not solely of the mortgagee but of any future holder of the note, to impair its binding force and effect by pleading secret equities created by his own fault, negligence or imprudence, and of which the subsequent holder of the notes had no notice and no means of information. When eases arise in which the above elements or some of them are missing, we will determine therh according to their particular facts.

II.

The other ground of injunction, based on the prohibition of the national banking law, is insufficient in law, because negatived by repeated decisions of the Supreme Court of the United States which, while conceding that the law does, by clear implication, prohibit national banks to make loans on real estate, hold, nevertheless, that the risk of ouster and dissolution was the only penalty contemplated by Congress for violating the prohibition, which penalty could be invoked by the United States alone, and the bank was not disabled from enforcing such loans by judicial process at the plea of the debtor. National Bank vs. Matthews, 98 U. S. 621; National Bank vs. Whitney, 108 U. S. 99; Fortier vs. National Bank, 112 U. S. 489.

Judgment affirmed.


text:
    No. 11,134.
    Ex Parte Homer A. Plessy.
    1. Act 111 of the Legislature of 1890, regulating accommodations of the races on railways, docs not violate the thirteenth amendment of the United States Constitution, because such accommodations ij.volve no badge of slavery or involuntary servitude which is the sole subject of that amendment. Civil Rights Cases, 109 U. S. 3.
    2. A long line of decisions, State and federal, maintain that statutes or regulations enforcing the separation of the white and colored races in publicconvey* anees and in public schools, so long at least as the facilities or accommodations provided are substantially equal, do not abridge any privilege or immunity of citizens or otherwise contravene the fourteenth amendment of the United States Constitution.

      3. In such matters, equality, and not identity or community, of accommodations is the extreme test of conformity to the requirements of the amendment.

      4. The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a federal function. This statute is an exercise of the police power and expresses the legislative conviction that the separation of the races in railway conveyances, with proper sanctions for substantial equality of accommodation, is in the interest of the public order, peace and comfort. It is a matter of legislative power and discretion with which courts can not interfere.
    5. A proper construction of the sfcatnte does not (as contended by relator) authorize a conductor to assign a passenger to a coach to which his race does not belong; nor does it bind the passenger to accept such wrongful assignment, nor exempt the officers or companies from actions for damages in case of such wrongful assignment and refusal to carry when disobeyed. The discretion vested in the conductor to decide primarily the coach to which each passenger belongs is only that necessary discretion attending every imposition of any duty to determine whether the circumstances, under which the duty arises, exist. He exercises such discretion at his peril and at that of his employer.
    APPLICATION for Certiorari and Prohibition.

      Albion W. Tourgée and Jas. C. Walker for the Relator.

      Lionel Adams for the Respondent.
   The opinion of the court was delivered by

Fenner, J.

We have held that when a party is prosecuted for crime under a law alleged to be unconstitutional, in a case which is unappealable, and where a proper plea setting up the unconstitutionality has been overruled by the judge, a proper ease arises for the exercise of our supervisory jurisdiction in determining whether the judge is exceeding the bounds of judicial power by entertaining a prosecution for a crime not created by law. State ex rel. Walker vs. Judge, 39 An. 132; State ex rel. Abbott vs. Judge, 44 An. 583.

Relator’s application conforms to all the requirements of this rule. He alleges that he is being prosecuted for a violation of Act No. Ill of 1890; that said act is unconstitutional; that his plea of its uneonstitutionality has been presented to, and overruled by, the respondent judge; and that the case is unappealable. He, therefore, applies for writs of certiorari and prohibition in order that we may determine the validity of the proceedings and, in case we find him entitled to such relief, may restrain further proceedings against him in the cause.

The judge, in his answer, maintains the constitutionality of the law and the validity of his proceeding.

' The legislative act in question is entitled:

“ An act to promote the comfort of passengers on railway trains; requiring all railway companies carrying passengers on their trains, in this State, to provide equal but separate accommodations for the white and colored races, by providing separate coaches or compartments so as to secure separate accommodations; defining the duties of the officers of such railways; directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong; authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railway companies from any and all blame or damages that might proceed from such refusal, to prescribe penalties for all violations of this act,” etc.

The first section of the act requires that all railway companies-carrying passengers in their coaches in this State shall provide equal, but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations,” and that “ no person or persons shall be permitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.”

The second section provides, “ That the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of |25, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison;” and a like penalty is imposed on “ any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs; ” and it is further provided that “ should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company shall be liable for damages in any of the courts of this State.”

The 3d section provides penalties upon officers, directors and employees of railway companies who shall refuse or neglect to comply with the provisions of the act.

We have had occasion very recently to consider the constitutionality of this act as applicable to interstate passengers, and held that, if so applied, it would be unconstitutional because in violation of the exclusive right vested in Congress to regulate commerce between the States. State exrel. Abbott vs. Judge, 44 An. 583.

The instant case presents no such application of the statute; but it appears on the face of the information that relator was proceeded against as “a passenger traveling wholly within the limits of the State of Louisiana on a passenger train belonging to the East Louisiana Railroad Company carrying passengers in their coaches within the State of Louisiana.” It thus appears that the interstate commerce clause of the Constitution of the United States is notinvolved.

The relator’s plea of the unconstitutionality of the statute contains no less than fourteen enumerated paragraphs, which do not require reproduction, because most of them are argumentative, and no provisions of the State or federal Constitutions are referred to as violated by the statute except the thirteenth and fourteenth amendments to the Constitution of the United States. The whole gravamen of relator’s plea is contained in the fourteenth ground, which is as follows: “That the statute in question establishes an insidious distinction and discrimination between citizens of the United States based on race which is obnoxious to the fundamental principles of national citizenship, perpetuates involuntary servitude as regard citizens of the colored race under the merest pretence of promoting the comforts of passengers on railway trains, and in further respects abridges the privileges and immunities of the citizens of the United States and the rights secured by the thirteenth and fourteenth amendments of the federal Constitution.”

So far as the thirteenth amendment is concerned its application to this statute may be at once eliminated because the Supreme Court of the United'States has clearly decided that it does refer to rights of the character here involved. We will, for the sate of brevity, quote only the syllabus of the decision, as follows:

“The Xlllth Amendment relates only to slavery and involuntary servitude (which it abolishes), and although by its reflex action it establishes universal freedom in the United States, and Congress may probably pass laws directly enforcing its provisions; yet such legislative power extends only to the subject of slavery and its incidents ; and the denial of equal accommodations in inns, public conveyances and other places of public amusements, imposes no badge of slavery or involuntary servitude upon the party, but, at most, infringes rights which are protected from State aggression by the XIVth Amendment.” Civil Rights Cases, 109 U. S. 3.

We may, therefore, confine ourselves to the question, whether or not the statute violates the XIVth Amendment, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

A further elimination may be made of the question whether a statute requiring separate accommodations for the races without requiring the accommodations to be equal would contravene the amendment ; because the statute here explicitly requires that the accommodations shall be equal.

We thus reach the sole question involved in this case, which is, whether a statute requiring railroads to furnish separate but equal accommodations for the two races, and requiring domestic passengers to confine themselves to the accommodations provided for the race to which they belong, violates the XIVth Amendment.

The first branch of the above question, as to the binding effect of the statute on railways, has been definitively decided by the Supreme Court of the United States, on a statute almost identical, holding that the provision requiring railroads to furnish separate but equal accommodations was valid. Louisville etc., Railway Co. vs. Mississippi, 133 U. S. 587.

But the court said: “Whether such accommodation shall be a matter of choice or compulsion [on the part of passengers] does not enter into this case.”

The validity of such statutes, in so far as they require passengers, under penalties, to confine themselves to the separate and equal accommodations provided for the race to which they belong, has not, as yet, been directly presented to or decided by the Supreme Court of the United States. But the validity ofsuch statutes and of similar regulations made by common carriers in absence of statute, and the validity of similar regulations or statutes as applied to public schools have arisen, in very many cases, before the highest courts of the several States and before inferior federal courts, resulting in an almost uniform course of decision to the effect that statutes or regulations enforcing the separation of the races in public conveyances or in public schools, so long at least as the facilities or accommodations provided are substantially equal, do not abridge any privilege or immunity of citizens or otherwise contravene the XTVth Amendment.

We refer to the following amongst other numerous decisions: Westchester R. R. Co. vs. Miles, 55 Pa. Stat., 209; State vs. McCann, 21 Ohio, 210; People vs. Gallagher, 93 New York, 438; Cory vs. Garter, 48 Ind. 337; State vs. Duffy, 7 Nev. 342; People vs. Gaston, 13 Abb. N. Y. 160; Louisville, etc., Ry. vs. State, 66 Miss. 662; Lehew vs. Brummell (Mo.), 15 S. W. Rep. 765; Dawson vs. Lee, 83 Ky. 49; Ward vs. Flood, 48 Cal. 36; Chesapeake R. Co. vs. Wells, 85 Tenn. 613; Bertonneau vs. Directors, 3 Woods (C. C. R.) 177; The Suc. —, 22 Fed. Rep. 843; Logwood vs. Memphis, 23 Id. 318; Murphy vs. Western R. Co. 23 Id. 637.

It would little boot for us to make extensive quotations from these decisions. They all accord in the general principle that, in such matters, equality, and not identity or community, of accommodations is the extreme test of conformity to the requirements of the XlVth Amendment.

The cogency of the reasons on which this principle is founded, perhaps, accounts for the singular fact that notwithstanding the general prevalence throughout the country of such statutes and regulations, and the frequency of decisions maintaining them, no one has yet undertaken to submit the question to the final arbitrament of the Supreme Oourt of the United States.

In a ease which arose as far back as 1849, the Supreme Oourt of Massachusetts, through its great Chief Justice, Shaw, considered this subject, saying: Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.” And the court held that it was not, saying, in conclusion: “ It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law and can not be changed by law. Whether this distinction and prejudice, existing in the opinions and feeling of the community, would not be as effectually fostered by compelling colored and white children to associate together may well be doubted.” Roberts vs. Boston, 5 Cush. 198.

The general rule applied to carriers is well stated by Mr. Hutchinson: “ If the conveyance employed be adapted to the carriage of passengers separated into different classes, according to the fare which may be charged, the character of the accommodations afforded or of the persons to be carried, the carrier may so divide them, and any regulation confining those of one class to one part of the conveyance will not be regarded as unreasonable, if made in good faith for the better accommodation and convenience of the passengers.” Hutchinson on Carriers, Sec. 542.

In applying this rule, the Supreme Court of Pennsylvania said: “The right to separate passengers being clear in proper cases, and it being the subject of sound regulation, the question remaining to be considered is whether there is such a difference between the white and black races of this State, resulting from nature, law and custom, as makes it a reasonable ground of separation.” The court then proceeds to discuss these differences, taking care to say: “ To assert separateness is not to declare inferiority in either. It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix.” Concluding, the court said: “Law and custom having sanctioned a separation of races, it is not the province of the judiciary to legislate it away. * * Following these guides, we are compelled to declare that, at the time of the alleged injury, there was that natural, legal and customary difference between the white and black races in this State which made their separation as passengers in a public conveyance the subject of a sound regulation to secure order, promote comfort, preserve the peace and maintain the rights both of carriers and passengers.” Westchester R. R. Co. vs. Miles, 55 Pa. St. 209.

Both the decisions, from which we have quoted, were rendered before the adoption of the XIVth Amendment, but in States where the civil rights of the colored race were fully recognized. We have referred to them as indicating the germinal principles which have been followed in the numerous decisions cited above applying the XIVth Amendment. That amendment, it is well settled, created no new rights whatever, but only extended the operation of existing rights and furnished additional protection for such rights. Barbier vs. Connelly, 113 U. S. 27; U. S. vs. Cruikshanks, 92 U. S. 542; Slaughterhouse Cases, 16 Wall. 36.

The statute here in question is an exercise of the police power and expresses the conviction of the legislative department of the State that the separation of the races in public conveyances, with proper sanctions enforcing the substantial equality of the accommodations supplied to each, is in the interest of public order, peace and comfort. It undoubtedly imposes a severe burden upon railways; but the Supreme Court of the United States has held that they are bound to bear it. It impairs no right of passengers of either race, who are secured that equality of accommodation which satisfies every reasonable claim.

The regulation of domestic commerce is as exclusively a State function as the regulation of interstate commerce is a federal function. It is as much within the control of State legislation as the public school system or the law of marriage. To hold that the requirement of separate, though equal, accommodations in public conveyances violated the XIYth Amendment would, on the same principles, necessarily entail the nullity of statutes establishing separate schools, and of others existing in many States, prohibiting intermarriage between the races. All are regulations based upon difference of race, and if such difference can not furnish a basis for such legislation in one of these cases it can not in any.

The statute applies to the two races with such perfect fairness and equality that the record brought up for our inspection does not disclose whether the person prosecuted is a white or a colored man. The charge is simply that he “ did then and there unlawfully insist on going into a coach to which by race he did not belong.” Obviously, if the fact charged be proved, the penalty would be the same whether the accused were white or colored.

We have been at pains to expound this statute, because the dissatisfaction felt with it by a portion of the people seems to us so unreasonable that we can account for it only on the ground of some misconception. Even were it true that the statute is prompted by prejudice on the part of one race to be thrown in such contact with the other, one would suppose that to be a sufficient reason why the pride and self-respect of the other race should equally prompt it to avoid such contact, if it could be done without the sacrifice of equal accommodations. It is very certain that such unreasonable insistence upon thrusting the company of one race upon the other, with no adequate motive, is calculated, as suggested by Chief Justice Shaw, to foster and intensify repulsion between them rather than to extinguish it.

We will conclude by noticing some charges made against the statute by relator, based, as we think, on an utterly unwarranted construction. He claims that the statute vests the officers of the company with a judicial power to determine the race to which the passenger belongs; that they may assign the passenger to a coach to which by race he does not belong, and that such an assignment is binding on the passenger, and that, though wrongfully made, the officers and railway companies are exempted from any legal responsibility.

The reading of the statute utterly repels these charges.

Not only does not the statute authorize the conductor or other officer to assign a passenger to a coach to which by race he does not belong, but it affirmatively requires him “ to assign each passenger to the coach used for the race to which such passenger belongs,” and it punishes him for failure to make such assignment. When the statute authorizes the conductor to refuse to carry any passenger who shall “refuse to occupy the coach to which he or she is assigned by the officer of such railway,” it obviously means an assignment according to the requirements of the act — i. e., to the coach to which the passenger by race belongs; and the exemption from damages is subject to the same construction. It is too clear for discussion that a refusal to carry a passenger because he had refused to obey an assignment to a coach to which his race did not belong would not be exempted from redress in action for damages.

The discretion vested in the officer to decide primarily the coach to which each passenger by race belongs is only that necessary discretion attending every imposition of a duty, to determine whether the occasion exists which calls for its exercise. It is a discretion to be exercised at his peril and at the peril of his employer.

It is very certain that if relator shall prove in this prosecution that he did not, as charged, “ insist on going into a coach to which he did not belong,” an erroneous assignment by the conductor would not stand in the way of his acquittal, or exempt the officer and the railway from action for damages, whatever defences might be open to them based on good faith and probable cause.

It is therefore ordered that the provisional writ of prohibition herein issued be now dissolved and set aside, and that the relief sought be denied at relator’s cost.

Rehearing refused.