text:
    No. 10,601.
    Mrs. Rose Egan Dandie vs. Southern Pacific Railroad Company.
    1. The servant assumes the ordinary risks and dangers of his employment, and can not hold the master responsible for an injury sustained in consequence of one of the risks incident to said employment.
    2. The servant can not recover whore his own want of care has contributed to the injury. If among' the different modes of performing a duty he selects the most dangerous, which necessarily exposes him to danger, he is responsible for the selection.
    3. When themaster does not increase the risk assumed by the servant, and there are no defects in any of the appliances provided by the master for the performance of the duties required of the servant, the servant can not hold the master responsible for injury received in the course of his employment.

      4. Where the evidence shows contributory negligence on the part of the injured pai-ty, he can not recover damages for the injury.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      J. G. Gilmore and S. L. Gilmore for Plaintiff and Appellee:
    1. A railroad company is liable for injuries to its servants in consequence of indifference or neglect in furnishing proper and suitable machinery or apparatus for the performance of the duties required of employes. Hough vs. R. R. Co., 100 U, S. 22S; Wood on Negligence, pp. 681,213,738,753; Thompson on Negligence, p. 975.
    2. It is the act of the company, for which it is responsible in damages, to maintain a dangerous rate of speed, and employ apparatus incompatible with the safety of life and person of an employe required to perform the duties of a flagman or switchman. The employe has a right to act on the presumption that he will not be exposed to unnecessary risks, and in order to recover, need only raise a reasonable presumption of negligence. Wood, p. 177; TutrixNarren vs. Sellers, 38 An. 1020; Myhan vs. Electric Light Company, lately decided.
    3. It is notcontributory negligence to engage in a dangerous occupation. Roach on Cont. Neg.,370, 763. Therisk assumed is ordinary hazard incident to employment, and that is synonymous with inevitable accident. Inevitable accident is equivalent to vis maj,or. Wood, p. 738; Railroad Co. vs. Ross, 112 U. S.,p. 377; The Merrimac, 14 Wallace, p. 199.

      Leovy & Blair for Defendant and Appellant:
    1. When the evidence shows that the plaintiff, who was injured by a collision with a railroad car, contributed by his own fault to bring about the collision, he can not recover damages from the railroad company on account of the injury, even though the employés of the company were partly in fault. Schwartz vs. R. R. Co., 30 An. 15; see also Childs vs. R. R. Co., 33 An. 154; Mercier vs. R. R. Co., 23 An. 264.

      2. Tlie servant can not recover where his own want of ordinary care has contributed to the injury, or where, by the exercise of ordinary care, he might have avoided it. * * * If among the different modes of performing his duty, some of which are safe, he chooses one which unnecessarily exposes him to danger, he takes the risk of his choice, although other servants do likewise. Pierce on Railroads, p. 379; see also Cooley on Torts, p. 563; Tuttle vs. Milwaukee Railway, 122 U. S. 194; Randell vs. IS. & O. R. R. Co., 109 U. S. 483.
    3. The servant assumes the ordinary risks and dangers of his employment, and can not hold the master responsible for an injury sustained in consequence of one of the risks and dangers incident to the service in which he had engaged himself. Wood on Master and Servant, Sec. 326, pp. 678, ffg; Cooley on Torts, pp. 541, ffg.
    4. The servant assumes not only the ordinary risks and dangers of his employment, but also the risks and dangers arising from the peculiar mode in which the master conducts his business, from the insufficient or improper machinery or appliances employed, or from the habitual negligence of his fellow servants, provided these things are known to him, and ho continues in the service without objection or ^complaint. Wood on Master and Servant, See. 326, p. 680; Rorer on Railroads, pp. 1197,1198; Wallis vs. R. R. Co., 38 An. 159; Tuttle vs. R. R. Co., 122 IT. S. pp. 194r-6; Leary vs. B. & O. R. R. Co., 139 Mass. 589.
    5. A master is not responsible to one servant for an injury sustained in consequence of the negligence of a fellow servant. Cooley on Torts, p. 542; Pierce on Railroads, pp. 358, 359.
    An engineer and a flagman or switchman are follow servants within this rule. Wallis vs. It. R. Co., 38 An. 160; Satterlee vs. R. R. Co., 35 An. 1166; Randall vs. R. It. Co., 109 U. S., p. 483; Naylor vs. N. Y. Central R. R. Co., 33 Red. Rep. 801.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff alleges that her son, George J. Dandie, on the 14th June, 1889, while employed as flagman on yard locomotive No. 711, of the defendant company, at the Morgan ferry in the City of New Orleans, was run over and instantly killed while performing his duties as flagman by said locomotive; that the death of her son was fine to the fault and negligence of defendant and its employés in running the engine at a high rate of speed, without having a lookout in the cab, and failing to make proper provisions for the safety of her son while employed in the capacity of flagman. She prays for damages in the sum of $15,000.

The defendant’s answer is a general denial, with the exception of certain admissions, and alleges that the death of plaintiff’s son was accidental and was contributed to by imprudence, fault and want of care on the part of the deceased son. There was judgment for the plaintiff, on the verdict of the jury, for the sum of $5000.

The facts are that the plaintiff’s son was at the time of his death in the service of defendant company as flagman. His duties were of such a character as are required on ail railroads. The engine which ran over the deceased was used for the purpose of taking cars from the ferryboat at the Morgan landing and moving them backward and forward, forming them into a train, or placing them into position to be loaded. The flagman rode on the car when backing and when going forward in front of the engine on a footboard placed there for that purpose.

When the train approached a crossing it was the duty of the deceased to jump down, go to the ¡crossing and protect it with a red flag. When a switch was approached which needed attention, he jumped down, ran to it, and turned it. When the engine came near him he jumped on it, ready again to perform the same duties. Dan-die, the flagman, had been engaged in this work in the service of the defendant for some nine months. He was familiar with his duties, and had been instructed to get off the engine on the side of the track, either the right or the left, as occasion required. This was the safest manner for him to perform his duties. By standing near the end of the footboard the flagman can be seen by the engineer, if he is on the right, and by the fireman if he is on the left. If he stands in the center he can be seen by neither. If the engine is going too fast for the flagman to jump, it is his duty to signal the engineer, if he is on the right of the footboard; and if on the left, the fireman, who immediately communicates with the engineer. This signal is made with the flag, hat, or hand. It is immediately obeyed, and the speed is slackened so that the flagman can jump with safety. If it is not slackened, he is not compelled to jump, but it is his duty to stand on the footboard. There were no obstacles to prevent the deceased from jumping to the side of the track, which was in a condition that he could do so with comparative safety. The footboard for the flagman extends all the way across the front of the engine in order that he may pass from one side to the other to alight on either side of the track according to the position of the switch or crossing.

There is a wide difference of opinion as to what rate of speed the engine was going. Some of plaintiff’s witnesses put it a high rate, while defendant’s witnesses fix the rate at not more than six miles per hour.

On the day of the accident George Dandie was standing near the center of the footboard where the engineer and the fireman could not see him. When about fifty feet from the switch, which he had to turn, Dandie jumped in front of the engine between the rails and was overtaken and run over by it.

The duties which the deceased, George Dandie, had to perform necessarily involved risks of a dangerous character. All occupations do not offer the same immunities from danger. They differ in this respect very materially. The employé must judge of these risks and determine whether he will undertake them; The deceased entered the employment of the defendant company as a flagman and switch-man with a full knowledge of the character of the service required of him and the dangers incident to the employment. He assumed all these risks when he entered into the service of the defendant company. The defendant company did not increase the risk assumed by the deceased and to which he subjected himself. There was no defect in any of the appliances provided by the defendant company for the performance of the duties required of him, and there was therefore no negligence. Satterlee vs. Morgan Co., 35 An. 1166; Wallis vs. Railroad Co., 38 An. 159; Tuttle vs. Railroad Co., 122 U. S.; Wharton, Negligence, Sec. 214; Hart vs. H. C. Fricke Coke Co. (Pa.) 18 Atlantic R. 1011.

The flagman Dandie had but one way to perform his duty with safety to himself. He selected another and a more dangerous one by getting down in front of the engine between the rails.

The risk'was unnecessarily assumed, and was at his own peril and on his own responsibility. Id. 216.

The deceased was a fellow-servant with the engineer and fireman. They were employed by the same corporation, and engaged in the performance of the same duty. The duties of one in this particular service were dependent upon the other. The switch had to be closed by the flagman before the engineer could drive his engine beyond it, and the flagman by signaling the engineer could regulate the speed of the engine so as to perform his duties with dispatch and certainty and without unnecessary risk. The engineer and fireman were competent and skilful and had been for many years in the service of the defendant company. The company was not in fault in their employment, and the continuing of them in its service. Conceding, therefore, that the engine was going at a high rate of Speed, the plaintiff can not attribute this negligence to the defendant. The instructions to the engineer were not to g'o beyond six miles an hour. If the engine on the day of the accident exceeded this limit, it was the fault of the engineer and not that of the company, so far as the plaintiff is concerned, and the plaintiff can not recover for this negligence on the part of a fellow-servant of the deceased, when no fault can be attributed to the employer. Tours vs. Railroad Co., 37 An. 632; Hankins vs. N. Y., L. E. & W. R. Co., 8 N. Y. S. 272.

The evidence satisfies us that there were no imperfections in the appliances provided by the defendant for the performance of the duties required by the deceased, and that there was no lack of care on the part of the defendant in the employment and continuing in service of the engineer and fireman on the engine on which the deceased was in service as flagman, and that the deceased contributed to his unfortunate death by his own imprudence.

When the evidence shows contributory negligence on the' part of the injured party, the plaintiff can not recover damages.

This principle is well established in our jurisprudence. Schwartz vs. R. R. Co., 30 An. 15; Childs vs. R. R. Co., 33 An. 154; Deikman vs. R. R. & S. Co., 40 An. 790.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided, reversed and annulled, and it is ordered that plaintiff’s demand be rejected with costs of both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,612.
    W. R. Peters et al. vs. Pacific Guano Company et al. S. L. Thorndyke et al., Intervenors.
    Attorneys investing moneys entrusted to tliem as trustees, and receiving anote payable to tlieir own order as attorneys, may sue thereon in their own names as attorneys, although one of the parties whose funds were so invested may have been a foreign succession.
    A corporation which employs a firm which holds the controlling share of its stock and of which the leading member is its own president, as its commercial and selling agents, making advances on and receiving under contract its entire product, with power to control, sell, pledge and dispose of the same and its proceeds, is bound by the dealings of such firm with regard to such product.
    A pledge is not impaired when the possession of the thing has been passed to the pledgee and has not been parted with except to a third person agreed on by the parties.
    Where such person has remitted a sum sufficient to discharge the pledge to the common agent of two concurrent pledgees, the receipt by sucll agent would, ordinarily, discharge the pledge; but when the pledgor himself intervenes and, by false representations, induces the agent to believe- that one of the pledgees has consented to waive payment out of the remittance and to extend his loan, and the agent diverts part of the fund to payment of another debt of the pledgor, such a transaction operates only a partial payment and discharge of the debt and pledge and leaves them in full force for the balance •due.
    APPEAL from the Twenty-fourth District Court, Parish of Jefferson. Rost, J.

      Harry H. Hall for Intervenors and Appellants:
    1. A person investing money of another and receiving therefor an obligation in his- own name as attorney, may institute legal proceedings in his own name thereon for the benefit of his principal. 4 N. S. 481; 5 It. 478 ; 2 La. 264; 12 An. 298; 9 An. 70; HAn.113. V. 3 N. S. 291, 392; 4La.219; 2An.441; 4An.350.

      2. The commercial and selling agents of a corporation, under a contract empowered to dispose of a product against which they have made money advances, may validly pledge said product.
    It is not indispensable that the pledgee should be the owner of the thing pledged. If pledged with the consent of the owner it is decreed sufficient, and even with■out such consent the thing may, as between the parties, be completely deemed a pledge, so that the pledgee himself can not reclaim it except on discharging the obligation. Story on Bailment, See. 291; 13 Mass. 105; S. O. 15; Id. 389 Waite’s Actions and Defences, V. page 170.
    O. C. 3145 (3111): One person may pledge the property of another, provided it be with the express or tacit consent of the owner.
    The Norwalk Iron Works intervened, claiming the ownership of certain machinery pledged by defendant to plaintiffs to secure said advances, and have appealed from a judgment against them. The evidence shows that the defendant was their agent to sell the machinery, consigned by them to him, and that he sent machinery to various points, to be sold for cash, or on credit, and settled with intervenors for such sales. He was their agent and not their factor in the purview of the law invoked by them, and having had the possession and •control of the machinery in question, and having pledged it to plaintiffs, who are not shown to have known that it belongs to intervenors, the pledge must be sustained. The intervenors put it in the power of the defendant to make such use of the machinery, and they must bear the loss, if any. The principle which sustains the pledge of a note as collateral, which is placed in the hands of a broker to sell, must apply here. Davidson vs. Bodley, 27 An. 149.
    Transfer of bill lading passes title to property in same manner as delivery of goods. Daniels’ Neg. Inst., See. 1731.
    Where a thing is pledged it is immaterial whether the pledge holds the property, as a third person holds it for him (43 N. H. 450); so where the property of A is already in the possession of B, for other purposes, it may be pledged by A to B to secure a particular debt or liability, and in such case no change of posses.sion is necessary. Waite’s Actions and Defences, vide page 167.
    Under the provisions of Art. 3162,0.C., the pledgee may have possession through a third person chosen by him and the pledgor. Weems vs. Delta, 33 An., 973; 38 An. 866; 39 An. 566.

      3. When money is received by the mandatory oí a pledgee for the purpose of paying the amount of the pledge, but instead of so employing it, the mandatory, at the request of the debtor is under m isrepresentation, and without the knowledge of the pledgee, applies said money to the payment of other obligations of the debtor, the latter is estopped to assert that the pledge has been paid.

      John M. Baldwin for Defendants and Appellants:
    1. An unrepresented estate can not appear in court even through the medium of an agent or attorney in fact, or of one appearing to sue “for the use of.”
    2. The lien and privilege on the-'thing pledged is lost if the creditor parts with the possession, unless it be in the hands of third persons agreed on by the parties. R. C. 0., Art. 3162.
   The opinion of the court was delivered by

Fenner, J.

-The facts of this case are undisputed. The Pacific Guano Company was a joint stock company engaged in the manufacture of guano. A majority of its stock was owned and controlled by the commercial firm of Glidden & Curtis, and John M. Glidden, the senior member of that firm, was also president of the company. The firm acted as the commercial agents of the cdmpany under a contract between the two, by which all the product of the company was consigned to the firm, which made advances thereon, and had full authority to sell, pledge and dispose of the same. The evidence makes it clear that the firm was invested with all the powers of ownership over this product and its dealings therewith were binding on the company so far as its rights in the product were concerned. These powers embraced the right to pledge the product for advances made to the firm. This is not disputed with any seriousness even in argument.

The firm in January, 1889, shipped about 1000 tons of this guano by the schooner Henry Souther, consigned to W. P. Richardson at New Orleans, under some arrangement with the latter that he was to remit to the firm $10,000 against the cargo. While the cargo was en route the firm in Boston borrowed $10,000, viz., $5000 from W. T. Glidden and $5000 from Thorndyke & Carpenter, attorneys, for which it executed separate notes to each of the lenders; and to secure the same it pledged the bill of lading of the cargo by delivering the same to W. T. Glidden, who received and held it for the benefit of both lenders.

An arrangement was then entered into between W. T. Glidden and the firm of Glidden & Onrtis, by which the latter gave to the former a letter addressed to W. P. Richardson, the consignee, informing him that he borrowed this money on the bill of lading; that W. T. Glidden would forward the bill with the letter, and instructing Richardson, on receipt of same, to remit to W. T. Glidden “the $10,000 you propose to send against this cargo.”

W. T. Glidden thereupon wrote to Richardson, inclosing the bill of lading and the above letter, and requesting him to send the $10,000 as directed. Richardson, on receipt of these documents, borrowed $10,000 on pledge of the bill of lading from the New Orleans National Bank, and remitted the sum to W. T. Glidden.

The remittance was duly received by W. T. Glidden, but before he had seen or settled with Thorndyke & Clark, John M. Glidden called upon him and told, him that his firm had made arrangements with Thorndyke & Clark to wait on their loan, and instructing W. T. Glidden to apply the whole $10,000 to the payment first of his own advance on the cargo, and the remaining $5000 to taking up a prior note of the firm held by him. The relations between the parties were very intimate. W. T. Glidden was the father of John M., and Thorndyke was the legal adviser of W. T. Glidden. Trusting in John M.’s assurance of the consent thereto of Thorndyke & Clark, W. T. Glidden applied the $10,000 as directed, and surrendered both the notes held by him. Thorndyke & Clark never gave such consent, .and no part of their loan has ever been repaid.

The controversy in this case is exclusively between Thorndyke & ■Clark and the Pacific Guano Company. The New Orleans National .Bank has been paid out of the proceeds of sale of the cargo, and no other creditor is before us. There is held in the hands of the court a portion of the said proceeds of sufficient amount, which Thorn-dyke & Clark claim, by virtue of their rights as pledgees, should be applied to their debt, while the Pacific Guano Company denies that claim and asserts the right to hold said proceeds free therefrom.

On the merits, the contentions of the Pacific Guano Company are threefold :

1. That Glidden & Curtis had no authority to make the pledge.

2. That the pledge of Thorndyke & Clark has been lost, because they had parted with possession of the thing pledged.

3. That the pledge has been extinguished by payment.

The first contention is not seriously urged, and is clearly overthrown by the evidence.

The second is based on Art. 3162, Rev. C. C., which declares that the pledge is destroyed unless the thing “ has been actually put and remained in the possession of the creditor, or of a third person agreed on by the parties.”

It seems to us perfectly clear that when the bill of lading was delivered to W. T. Glidden, as the common agent of himself and of Thorndyke and Clark, it operated a putting in possession of both creditors. When the bill of lading was remitted to W. P. Richardson the correspondence conclusively shows that the thing pledged was passed into his possession as a “third person agreed on by both parties.”

When Richardson pledged the bill of lading to the New Orleans National Bank, he no doubt so used the powers confided in him as to give the bank a right superior to that of the original pledgees, but the possession of the bank was still the possession of Richardson,, and did not divest any rights attaching to the thing in his hands, except so far as to subordinate them to the bank’s rights. When the bank was paid, the possession of Richardson was reinstated’ with all accompanying rights and liens.’ These propositions seem to us to be too self-evident to require further argument or illustration.

The third contention is that when'the $10,000 was remitted to and received by W. T. Glidden,’ that operated an immediate discharge of the pledge.

There can be no doubt that Glidden had authority to receive pay ment and to release the pledge: Had he, of his own motion, diverted the funds, Thorndyke & Clark would, nevertheless, have been bound by such discharge, and would have had no recourse against any one except W. T. Glidden. But when the pledgor himself steps’ in and, by false representations, induces the common agent of the pledgees to believe that one of The latter has agreed to extend his loan, and and thus secures a diversión of part'of the fund, a very different question is presented. Suppose W. T. Glidden had been the sole pledgee for the whole $10,000, and. Glidden. & Curtis had proposed to him to credit only $5000 o.n his pledge, ”and to extend his. loan for the balance, would that have extinguished the. pledge for the amount of the loan so extended? Clearly, that would have been simply a partial payment which would have extinguished the loan and pledge only pro tanto. Such, we think, was precisely the effect of the transaction between Glidden & Ourtis and W. T. Glidden in so far as Thorndyke & Olark were concerned. It simply operated a partial discharge of the debt and pledge, and left it in full force for the balance. John M. Glidden himself says, in effect, that such was the intention, saying that “a further remittance was expected for the purpose of repaying the loan of Mr. Thorndyke.”

Counsel for the Guano Company insists very strenuously upon the difference in personality between the company and the firm of Glidden & Curtis, but we do not think this difference has any weight in this case. The evidence makes it very clear that the firm was vested with all the powers of the owner over this cargo and its proceeds, including the power to sell, to pledge, to receive and dispose of the proceeds. If the §10,000 had been devoted to the payment of the entire pledge, the firm might have executed a new pledge for the other debt due to W. T. Glidden, which would have bound the proceeds of the cargo, which would have left the company in the same position, practically, which it now occupies. The pledgees had no dealing and no concern with the Guano Company, but dealt and were entitled to deal solely with the firm of Glidden & Curtis, and the action of the latter, in so far as it affected this property, was the entire equivalent of the action of the company.

It only remains to refer to an exception interposed by the defendants. . ...

It appears that in making this loan Thorndyke & Gardiner intended it as an investment of certain funds held by them in a fiduciary capacity, part of which belonged to the estate of W. H. Gardiner in Boston. The transaction, however, was made in their own names as attorneys, and the note taken was payable to their order. Of course they had the right to sue on this note, here or elsewhere, in their own names, and they have done so; but, no doubt, out of abundant caution, and in order that their gestión as trustees might appear of record, they made the quite unnecessary statements that the loan was of funds held by them as trustees of one Charles Foster, and of the estate of W. H. Gardiner. On these allegations defendants base an exception to the effect that a foreign succession has no capacity to stand in judgment in this State unless represented by an administrator or executor appointed or recognized by a Louisiana court. We think that, as the loan was made by them as attorneys, and the note given to them as such, they have full power to sue on it in that capacity regardless of the principals whom they represent, which is no concern of defendants.

The judge a quo ruled, on all points, in accordance with the above views.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,544.
    Durant DaPonte vs. New Orleans Transfer Company et al.
    1. A passenger on ai-ailway train, having arrived at the point of destination, enters into a contract with a transfer company, for an agreed compensation, to procure liis baggage from the railroad company’s depot and haul it to his residence, and for that purpose surrenders his baggage checks. Held that the transfer company is responsible to the passenger for the safe keeping and delivery of the baggage.
    2. Under this state of facts, contractual relations exist between the passenger and the transfer company, which the former may enforce by suit and sequestration.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henry L. Lazarus, for Plaintiff and Appellant,
    cited: Hutchinson on Carriers, Secs. 468, 678, 701, 715, 718; Wood on Railways, Vol. 3, 1521; Lawson Rights, Remedies and Practice, Vol. 4, Sec. 1947; 36 Barbour 560; 74 111. 119; 12 Wall. 262; 67 N. Y. 212; 23 Maryland 409; 35 An. 15.

      F. Miehinard, for Defendant and Appellee,
    cited: 2 An. 129; 4 An. 261; 1 Rob. 292; 9 An. 119; 18 An. 660.
   The opinion of the court was delivered by

Watkins, J.

The claim of the plaintiff is that in October, 1889, whilst in the city of New York he made a contract with the Pennsylvania Railroad Company for the transportation of himself and family, consisting of nine persons, over its road from that city to Cincinnati, and from thence to New Orleans via the Queen & Crescent route — these two roads connecting and constituting a through route from New York to New Orleans. His averment is that the contract for transportation of himself and family entitled him to transportation of his and their baggage from said point of departure to his place of destination, and the said railroad company undertook the safe carriage and transportation of himself, family and baggage over its own and connecting lines, and therefor issued to him tickets for passage and tags, or checks, for baggage, counterparts of the latter being ai the same time attached to the several pieces of his baggage when it was placed in said company’s possessionand custody.

Upon his arrival at the city of New Orleans he contracted to pay to the defendant transfer company the sum of $4.50 to procure his luggage at the railroad depot and haul it to his residence in said city, and surrendered to said company the checks he had received therefor from the railroad company. His further averment is that said transfer company took charge of his said baggage — the intrinsic value of which he fixes at $5000 — and hauled same to his residence and within his grounds, but declined and arbitrarily refused to deliver same to him (notwithstanding he proffered to pay the compensation agreed upon) on the pretext that there was due on the baggage an extra charge of $49.20 for transportation thereof by said Pennsylvania Railroad Company. He further avers that he refused and declined to pay said extra charge, and said transfer company persisted in its refusal to deliver his luggage otherwise, and against his protest removed same from his premises, and that he only recovered same by means of a writ of sequestration.

On the trial there was judgment for the defendant, and the plaintiff has appealed.

While there is no question raised on the part of the defendant transfer company — the only party cited — as to the character of the plaintiff’s contract with the railroad company, the value of the property, the facts in reference to its possession of the baggage, or of its refusal and declination to deliver the same, yet its contention in brief and argument is that there is not now and never has been “any dispute as to the ownership” of the property, and insists that when the plaintiff refused to pay the extra charge of $49.20, he reconveyed the baggage to the railroad depot and delivered the checks to the railroad company, by whom same are held subject to his order, and that the plaintiff’s right of action is against the Louisville & Nashville Railroad Company only.

In the plaintiff’s petition there is a distinct averment “ that he fears ¡that the New Orleans Transfer Company, either directly or through its agents and the Louisville & Nashville Railroad Company, having petitioner’s luggage, and that of his family, and which your petitioner avers to be a tortuous possession, without right or authority in law, may send the property out of the jurisdiction of the court during the pendency of this suit.” His prayer is that the property be sequestered by the sheriff, it “ being in the possession of the New Orleans Transfer Company, or under its control, or ip the possession of its agent, the Louisville & Nashville Railroad Company;” and that he be decreed the owner thereof. The defendant’s answer was a general denial. Instead of the transfer company declining the issue of ownership, it put same at issue by its answer. When the plaintiff ruled the transfer company to show cause why he should not be permitted to bond the property pendente lite, it made resistance and defeated his application. On the trial, its counsel introduced and interrogated several witnesses in defence of plaintiff’s pretensions, and obtained a judgment rejecting his d.emand. We think it is too late for it to insist that there is no issue with it asto the ownership, or possession, for us to try and determine.

Upon plaintiff’s arrival on the train he made a contract, as alleged, with an agent of the transfer company, for the delivery of his baggage at his residence, and surrendered to him his checks, and for which service he agreed to pay him the sum of $4.50.

Mr. Faust, one of defendant’s witnesses, testifies that he was, at the time, the manager of the transfer company. He states — using his own words: “ I.tried to explain (to Mr. Da Ponte) that it was a customary thing for the New Orleans Transfer to collect these charges; that the transfer company had no other interest than the delivery of the baggage; that we were simply the agents of the Louisville & Nashville, as well as all other lines running to New Orleans,” etc. Notwithstanding this witness, as manager of the defendant company, admits that company’s contract with the plaintiff, and that it was an undertaking to transfer his baggage, as the agent of the Louisville & Nashville Railroad Company, he confesses that he retained in the office of the company the plaintiff’s checks, for some time, and then surrendered them to the Louisville & Nashville Railroad Company.

“ Q. Where are the checks that were delivered by Mr. Da Ponte to the messenger of the New Orleans Transfer Company? Where are they?”

“A, In the possession, of the Louisville & Nashville Railroad. They were delivered to them.”

He states that they were afterward returned and remained in the office of the transfer company for some time.

In order to recover possession of his property, plaintiff was compelled to give bond to the sheriff for a large sum. His checks were retained by the defendant, or its agent, and have never been returned, or tendered to him. Had the defendant set out the true nature of its engagement in its answer, disavowed any interest in the transaction, and surrendered 'the plaintiff’s checks, or tendered them to him, in open court, it could have been exonerated entirely. But by the course it did pursue, the controversy has been prolonged, and judgment rendered against the plaintiff, who has been put to the expense of an appeal in order to secure the restitution of his property, or what amounts to the same thing, the cancellation of his forthcoming bond. He is entitled to this relief at our hands.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that there be judgment in plaintiff’s and appellant’s favor, recognizing plaintiff’s ownership of the property, and maintaining his sequestration, at defendant’s cost in both courts.


author: Bermudez, O. J.

text:
    No. 10,508.
    Succession of Myra Clark Gaines.
    A District Court liavingprobate jurisdiction has authority to appoint anon-resident mother tutrix of her minor son, domiciled out of the State, where she has not forfeited her right to the natural tutorship, by marrying again, and where the minor has interest in the State to assert or defend.
    This appointment confers upon her the care of the person and the administration of the property of the minor here and makes her amenable to the court making the appointment in a proceeding by the minor for his full emancipation, to be relieved, from all disabilities, etc.
    The judgment emancipating such minor is valid and clothes him with the right of being appointed, on a proper showing of capacity and solidity, administrator ■ of a succession in which he is a beneficiary heir present.
    The court, in contests for the administration of successions, is not bound unnecessarily to appoint two administrators to settle the estate, even where they have equal claims.
    The exercise by the District Judge of the discretion with which the law vests him will not be disturbed, unless manifestly wrong.

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

      Thomas J. Semmes and Alfred Goldthwaite for the Administrator, Appellant:
    1. In a contest between two beneficiary heirs present in the State for the appointment of administrator of the succession, the choice is left to the sound legal discretion of the judge. He may appoint two or one as he sees fit. Succession of Bernard, 3 An. 566; Succession of Valery Martin, 13 An. 557.
    2. An emancipated minor under Art. 385, O. 0., has an equal right to the appointment as a major heir. Succession of Lyne, 12 An. 155; Proctor vs. Hebert, 36 An. 251.
    3. Under Article 1043, Civil Code, the judge should look to the business capacity, experience, integrity, interests of majority of the heirs, recommendation of creditors and everything that goes to make up personal fitness. Succession of Ohaler, 39 An. 308.
    4. A person may come into this State and qualify as natural tutor or natural tutrix for his or her minor children, who petitions the court for the appointment; and does not vacate the office by temporarily absenting himself or herself from the State, if he or she leaves a power of attorney with some one to represent him or her. 4 Martin, O. S. 715; 15 L. 74; O. C.,Art. 39; 5 Martin, N.S.379; 10 An. 789; O. 0., Art. 354; 9 An. 354; Old Oode, Arts. 297 and 298; O. O., Art. 358; Acts 1847. No. 156; Art. O. O. 305 ; 5 An. 353.
    The capacity of a tutrix can not be attacked in a collateral proceeding. Succession of Hawkins, 35 An. 591.

      White & Saunders and E. H. MeCaleb, contra:

    1. A judgment absolutely null may be collaterally attacked.
    2. A tutor transiently in this State can not confer jurisdiction on the courts of this State to emancipate, his wards.
    3. As a matter of fact, Mrs. Whitney never had a legal domicil or residence in Louisiana.
    4. The pretended judgment of emancipation Of her minor son is therefore an absolute nullity. R. C. C.,Art. 46; 32 An. 467; 32 An. 679; Wharton on Evidence, See. 696; 11 How. 165 and 437.
   The opinion of the court was delivered by

Bermudez, O. J.

This is a contest for the administration of this succession. It arises between two grandsons, descending, the one from a daughter, the other from a son of the deceased, who had remarried.

The application of Christmas is opposed by Whitney, who claims a preference.

The succession assets are represented as being quite large, consisting in a claim against the city of New Orleans.

After hearing, the District Judge has appointed Whitney, and Christmas has appealed.

The contention is, that’Whitney can not and must not be appointed, because he is a minor. The charge is, that the decree of full emancipation, by which he claims to have been relieved from all the disabilities which attach to minors, is an absolute nullity, because the court which rendered it had no jurisdiction ratione personarum.

Proof was offered to show that Mrs. Whitney and her son were non-residents of the State, but it was objected to on the ground of absence of any issue involving the validity of the judgment of emancipation which could not be attacked collaterally. The court overruled the objection as going to the effect, and not to the admissibility. A bill was reserved, and is insisted upon. The District Judge, however, attached no weight to the proof thus administered.

On its face the emancipation proceeding is regular. It is a suit which began by a petition, to which a formal answer consenting to the prayer was filed, resulting in a judgment for the applicant.

There was a plaintiff and a defendant. The plaintiff was a minor approaching the age of majority, and the defendant was his mother, a widow of mature years. There is no charge, and nothing to prove that the court was imposed upon.

The objection is not that the court had no jurisdiction ratione materiee, for it could surely render valid emancipation judgments, under the laws of this State, in proper eases; but it is, that the court had no jurisdiction ratione personarum of the plaintiff and of the defendant in the case.

The fact that Mrs. Whitney was appointed by the Civil District Court for the parish of Orleans, tutrix of her son, the opponent here, is not denied.

The record shows that, together with James Y. Christmas, the father and tutor of the applicant, she was appointed with him to administer the succession of Mrs. Gaines, which had been opened before that court and that she has with him acted in that capacity.

It might be answered that this appointment can- not be attacked collaterally, even before the court which made the appointment (Succession of Keller, 30 An. 582, and cases referred to, adding 15 An. 28 And 35 An. 591) ; but it is preferable that the question of the validity of the same be not thus shut out and that it be inquired into; for, if it be true that the court could not make the appointment, the emancipation proceeding against one who had no capacity to stand in court, necessarily would be an absolute nullity and the judgment rendered would lapse and be of no avail.

In order to justify the appointment of a tutor or tutrix, it is not an indispensable legal prerequisite that the person appointed, when such person is the father or mother of the child, be domiciled in the State.

The appointment, recognition or confirmation of tutors must be made, as a rule, by the judge of the minor’s domicil, if he has any in the State; but, if he has none in the State, it may be made by the judge' of. the parish where the principal estate of the minor is situated. R. O. C 307.

If the father and mother of the minor reside out of the State and are not represented in it, and the minor be also absent, he may be provided with a tutor by the judge of the place where he has interests to assert or defend. O. P. 946.

Such an appointment can not, however, take place where the tutor, though a non-resident, is present in the State. Succession of Lewis, 10 An. 791.

If the father claim the tutorship, the judge shall confer it on him. C. P. 949. If the father be dead and the mother claim the tutorship, the judge shall confirm her, if she has not entered into a second marriage. C. P. 950.

In the matter of the minors Dobb, the right of a grandfather, who was a non-resident, to be appointed legal tutor, the father and mother being both dead, was contested. His appointment after being made was rescinded, a resident maternal uncle, claiming its nullity and a preference, being substituted; but after contradictory hearing it was held that the grandfather, although a non-resident, should be appointed in preference to all others, and he was reinstated. 9 An. 354.

In the case of Ploggatt vs. Moransy, 10 An. 170, the mother, who was a resident of another State, was permitted to qualify and act as tutrix of her children in this State.

In the more recent case of the Succession of Foley, 34 An. 129, this court held that a non-resident mother could not be appointed tutrix, not because of her non-residence, but because she had married again, and the law did not authorize the appointment of non-resident dative tutors, which she would have been if appointed notwithstanding the remarriage.

In the matter of the Succession of Lewis a non-resident testamentary tutor appointed abroad was recognized and allowed^ to act in this State. 10 An. 789.

Considering that the minor had large interests in New Orleans, Avhere the succession of Mrs. Gaines had been opened; that his unmarried mother was present petitioning for her confirmation as his tutrix by nature; that the law authorized her appointment although she was a non-resident, it follows that the attack on its validity can not avail. As such tutrix, she was suable before the court which had appointed her to answer the petition for emancipation. R. O. C. 385.

The judgment of emancipation remaining unaffected, the applicant and the opponent stand on the same footing. The opponent being considered as of full age, has a qualification for appointment. 12 An. 155; 36 An. 251.

The question next to be decided is whether the applicant or the opponent, or both, shall be appointed.

Article 1043, R. C. C. provides that, if there be two or more beneficiary heirs of age and present,in the State, the judge shall select one or two, whom he shall consider the most solid, for the administration.

It is the settled jurisprudence of this court that the judge is not bound to appoint two administrators, even with equal claims (13 An. 557), and that where two beneficiary heirs are contestants, a large discretion is left to the judge in the choice to be made, which will not be disturbed unless manifestly wrong. Succession of Ohaler, 39 An. 308.

The record shows that the main assets of the succession consist in a claim against the city of New Orleans, apparently recognized by the United States Supreme Court, and eventually good, which was appraised at six hundred and fifty thousand dollars ($650,000), and that the opponent, Whitney, who was appointed by the District Court, has furnished a bond with solvent sureties for eight hundred and fifty thousand dollars ($850,000), to secure the faithfulness of his administration.

The two aspirants axe present in this city, 10 An. 290, and are shown to be intelligent, correct and efficient. Christmas is a few years older than Whitney, who will soon be twenty-one. It does not appear that either has a special or greater experience in the administration of the property of others, or of their own. So far, fortune has not favored them, except in the present case, in which they are called to an inheritance. They are both represented by able counsel, who would not fail surely to advise and direct them properly, as to the management of the business of this succession.

Whitney has, however, shown that his appointment is desired by the distributees and creditors of this estate, and that he is able to furnish a large bond with unassailable sureties therein. The fact is that he has apparently furnished such bond.

The books do not show, that we have been able to find, that two administrators have ever been appointed to manage a succession like this. The tendency has been to appoint only one. At one time two curators could be appointed to a vacant succession, but the Legislature in 1854 determined that one only should be appointed, finally entrusting the settlement of vacant estates to one public administrator, even in the parish of Orleans. There maybe cases, however, in which two administrators should be' appointed, as where a man dies, leaving a large estate, consisting of plantations, factories, stores, urban property or other species, demanding the special attention and separate superintendence of more than one manager.

In the present instance the only asset consists of a claim which, however judicially recognized, has not been been as yet liquidated and may not be reduced to cash for some time to come. When this event happens, the only thing to be done will be to distribute the amount among the parties entitled to share in the same. If there be litigation on the subject, it will be a matter concerning rather the attorneys than the administrator.

To maintain that Whitney is not entitled to the appointment would be to recognize that Christmas has better rights to it, and to reverse the judgment of the District Judge, who is vested with primary discretion over the matter and who, after hearing the witnesses and evidence, has reached the conclusion that, all things equal, Whitney is the more solid.

An examination of the transcript authorizes this conclusion and satisfies us that the District Judge has not misused the discretion with which the law primarily clothes him, and that the circumstances of this succession do not require the appointment of an additional administrator, whose adjunction might, in cases of disagreement, engender trouble, complicate and entangle the settlement in different manners.

Judgment affirmed.


text:
    No. 10,608.
    J. B. Lallande vs. His Creditors.
    1. Though a factor may sell, and bind his principal, he can not pledge lliogoods as a security for his own debt, even though there have been bills of lading issued to him therefor. The principal may, in such case, recover the goods o£ the pawnee, andliis ignorance that the factor held the goods in the character of factor is no excuse.
    2. The doctrine that a factor can not pledge is sustained so strictly that it is admitted he can not do it by an endorsement and delivery of the bill of lading, any more than by delivery of the goods themselves.
    3. Notwithstanding, by statute, bills of lading may he made negotiable in form, they do not become possessed of all the incidents of negotiability that are attributes of bills and notes.
    4. The function of a bill of lading is different from that of ordinary commercial paper. It is not a representative of money, used for the transmission of money, or for the payment of debts. It is merely a contract for the performance of a certain duty — a representative of goods and personal property to be delivered.
    5. Non-negotiable bills of lading are merely assignable, as are other choses in action.
    6. A carrier and his customer do not stand on the same plane, or footing of equality, and, in many eases, the latter has no alternative as to the hind of bill he will receive, and can not be estopped by its contents.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Bilis, J.

      D. B. H. Ghaffe and Henry G. Miller for Webb, Plaintiff in Rule, and Appellee:
    The property of the principal can not he pledged by the factor for his own use or debts, whatever the form in which the pledge is attempted to be made. Sec 2d Kent’s Commentaries, S. P. 626; Iladwin vs. Fish, 1 An. 74; Ibid. 379; Bonnot vs. Fuentes, 10 An. 70; Miller vs. Schneider, 19 An. 306; Young vs. Scott, 25 An. 313; Allen vs. Banh, 120 U. S. 33.
    The receipts or bills of lading executed by the carrier by which cotton is consigned to a factor for sale does not change the law that the property of the principal can not be applied by the factor for his own debts or uses. If the factor can not pledge for his own debts and uses the property itself of his principal, the factor can not accomplish the forbidden pledge by undertaking to assign the carrier’s receipt or bill of of lading under which the factor has received the principal’s property. “The doctrine,” Chancellor Kent states, “ that the factor cannot pledge is sustained so strictly that it is admitted he can not do it by endorsement and delivery of the bill of lading any more than by the delivery of the goods themselves.” See 2d Kent’s Commentaries, S. P. 626; Bonnot vs. Fuentes, 10 An. 72; Insurance Company vs. Iviger, 101U. S. 355; Allen vs. Banh 120 U. S. 32.
    If a different rule with respect to the power of the factor is ever applied, it is the result of the statute law. The statute law of Louisiana is in accord with the commercial law denying* to the factor any power to use for his own purposes-the property of his principal, whether the purpose is sought to be accomplished by the factor assigning the bill of lading of his principal’s property or by any other mode. Acts of 1868, p. 193; Acts of 1876, p. 113; Young vs. Scott, 25 An. 313; Insurance Co. vs.ICiger, 103U. S. 355.

      Henry L. Garland, Jr., and White & Saunders for Whitney National Bank, Defendant and Appellant:
    1. A hill of lading is regarded in the commercial law as evidence of proprietary interest and ownership when unaccompaniod by any words of qualification or restriction, by the effect of which the consignor reserves to himself the jus disjjonendi of the property. Lickbarrow vs. Mason, 1 Smith Leading Cases, 897; Forbes vs. Boston & Lowell B. B. Co., 133 Mass. 154; Wilson vs. Churchman, 4 An. 453; Fetter vs. Field, 1 An. 83; Delgado & Co. vs. Wilbur, 25 An. 82; The Thames, 14 Wallace, 106; Farmers and Mechanics’ Nat. Bank vs. Logan, 74 N. Y. 579; Conard vs. At. Ins. Co., 1 Peters, 387, 445; Grove vs. Brien, 8 How. 429; Lawrence vs. Minturn, 17 How. 107; The Sally Magee, 3 Wall. 457; Park vs. Porter, 2 B. 342.
    2. Where one has a title to property with apparently a complete right and dominion over it, he may sell or pledge it or exercise over it any other right of ownership.
    3. Where one has invested another with all the indicia of ownership of his property for whatever purpose, he is estopped from denying ownership as against third persons acting in good faith, and advancing or loaning money on the faith of such apparent title. Moore vs. Lambeth, 5 An. 73; Walker vs. Cassaway, 4 An. 20; Jenkins vs. Thenet, 9 B. 35; Conger vs. Hill, 6 An. 7; Bibet vs. Bafcaile, 35 An. 1173; Giovanovich vs. Citizens’ Bank, 26 An. 15; Davis vs. Greve & Wilderman, 32 An. 420; Foster vs. Foster, 11L. 401; Stockton vs. Craddick, 4 An. 285; Dozier vs. Squires, 13 L. 130; Crears vs. Cowles, 2 An. 598; McNeil vs. Tenth National Bank, 46 N. Y. 325; Moore vs. Metropolitan Bank, 55 N. Y. 41; Dows vs. Perrin, 16 N. Y. 325.
   The opinion of the court was delivered by

Watkins, J.

This is a controversy arising over the proceeds of fifty bales of cotton which J. Y. Webb shipped, by rail, from Minden, Louisiana, to J. B. Lallande, of New Orleans, and therefor issued bills of lading to the consignee, and which he pledged to the Whitney National Bank for a loan of $2100.

Webb claims ownership of the cotton, and avers that it was consigned to Lallande, as his factor, for sale, and that he was without right or authority to pledge it as he did. The bank claims that it made the loan to Lallande on the faith of the bills of lading which Webb issued to Lallande as consignee.

The contention of the bank is (1) that the bills were unqualified by any restriction, and that the cotton covered by them was owned by Lallande, and that it acted on the faith of his ownership in making the loan; that, at the time of said loan, Lallande was a merchant in good standing and of high credit, and it acted in good faith and without any knowledge or suspicion of any rights or equities in favor of Webb; (2) that, under said bills of lading, the pledge was valid and binding,- under the express provisions of Sections 2482 and 2485 of the Revised Statutes; (8) that Webb, having taken out such bills of lading, and thus consigned the cotton to Lallande, placed a written title in his hands and enabled him to hold himself out to the world as owner and to deal with it as such, and he is thereby estopped from setting up any rights of his own as opposed to its rights of pledge.

On these issues the ease went to trial, and there was judgment in favor of plaintiff in rule, and the bank has appealed.

A fair summary of the facts of the case is as follows, viz:

On the 20th of January, 1890, the Minden Railroad issued to J. Y. Webb two receipts of the following form, viz:

“Minden, La., January 20, 1890.

“Received from J. Y. Webb, Sr., thirty-eight bales of compressed cotton, in good order, consigned to J. B. Lallande, New Orleans.

“Through rate, $1.90 per bale.

department delivery.

Bales. Marts. Numbers.

28 Y. V. Y. 1-28

“ Charges, $27.04.

“Received, January 29, 1890.

“28 Total.

“ To be transported over the Minden Railroad to Minden Junction. Liability to the Minden Railroad and Oompress Company to cease when the cotton is delivered to the Yicksburg, Shreveport & Pacific Railroad. Roger T. Boyle, Agent.”

There is another bill of like tenor for twenty-two bales. Lallande assigned both bills of lading to the bank, on the 24th of January, 1890, as a pledge for a personal loan, on his own endorsement. Three days subsequently he failed in business and took the benefit of the insolvent law. Subsequently, on the arrival of the cotton in New Orleans, Webb sequestered it in the hands of the railroad company, and the provisional syndic was ordered to surrender it. But upon being met with the claim of the bank, as pledgee, an agreement was entered into whereby the cotton should be sold and the contest carried on over the proceeds.

. The cotton is the property of Webb, who shipped it by rail to Lallande, consignee, as his cotton factor and commission merchant, in the customary and usual course of their dealings for many years. Lallande had been engaged in that business for many years in the city of New Orleans, where the Whitney bank was also engaged in business. At the date of these transactions, Webb was not indebted to Lallande; on the contrary, the latter’s books showed a.credit balance, in the former’s favor, of just 56 cents. When the bankmade the loan to Lallande, he was well and favorably known to the officers of the bank “as a merchant in good standing and of high credit.” When he requested a loan on the bills of lading, no questions were asked him, touching his solvency, or his ownership of the cotton covered by them.

The president of the bank, in the course of his statement of the transaction, said he had known Lallande for six years, during which time he did a large business, and in respect to his credit with the bank he said “ no man stood better.”

In the course of his interrogatories as a witness, the following transpired, viz:

Q. “Prom what fact did you assume that Lallande was the owner of the cotton?

A. “Well, the bills of lading. This cotton was consigned.to J. B. Lallande; under the bills of lading, endorsed, J. B. Lallande. Without asking any questions, I supposed that this was cotton which belonged to Mr. Lallande, consigned to him for payment, before the cotton was delivered, and that the proceeds would be put to the payment of the notes.

Q. “Then it was the bills of lading which made you believe the cotton was Lallande’s?

A. “Yes, sir.

Q. “Did you make any inquiries to find out if Mr. Lallande was the owner of the cotton?

A. “No, sir; I considered the factof his cmving there that the thing was all right.

Q,. “If you knew a man by sight, and nothing at all about his standing and solvency, would you have loaned him the money (on such bills)?

A. “No, sir.”

Then we have the following points established, viz:

1. That Webb was, at date of shipment of the cotton; the owner, and made shipment to Lallande, as his commission merchant and cotton factor, in the city of New Orleans, where both Lallande and the bank resided, and were engaged in business.

2. That Lallande’s business as a merchant was well known to the officers of the bank, and he was personally well and favorably known to them “as a merchant of good standing and of high credit.”

3. That the bills of lading were executed in the form of receipts by the agent of the carrier in favor of Webb, as the shipper alone, and not to order or bearer, and therein Lallande was named as consignee. The bills were not signed or endorsed by Webb, and in order to effect his pledge to the bank, Lallande, for himself, endorsed same in blank.

4. At the time of the shipment of the cotton, and the reception of the bills of lading by Lallande, he was not the creditor of Webb for a cent, and he was not, at the time he executed the pledge to the bank.

5. When Lallande requested a loan of the bank, and these bills of lading, unendorsed by Webb, were tendered as security, the officers of the bank accepted them without question, on their own supposition that the cotton that was covered by them belonged to Lallande.

It is perfectly manifest that, on this showing, Lallande had no right or authority to make a pledge of Ms customer’s bills of lading as security for his personal debt. The law provides “that when a merchant, or factor or other person has advanced money, property or supplies on cotton, etc., '* * * and the same has been consigned to him by ship, steamboat, vessel, railroad or other carrier, the said agricultural products- shall be pledged to the consignee thereof, from the time the bill of lading thereof shall be put in the mail, or put into the possession of the carrier for transportation to the consignee, and the right of pledge shall be perfect, with the right of sale of said property, which shall be fully vested in said consignee, with a right to appropriate the proceeds to the payment of the amount due him for such advances as may have been made thereon. ” Sec. 2, Act 66 of 1874.

This statute states the exact relations which subsist in this State between any shipper and the merchant or factor to whom he has consigned any agricultural products by a carrier, and for which the latter has executed a bill of lading. It confers upon the latter solely and exclusively the right of sale.

Under the Civil Code a debtor may give in pledge whatever belongs to him (R. C. O. 3142), but he can not pledge for his own debt the property of another without the express or tacit consent of the owner; and if the consent be tacit, “ it must be inferred from circumstances so strong as to leave no doubt of the owner’s intention, as if he was present at the making of the contract, or if he himself delivered to the creditor the thing pawned.” R. C. C. 3146.

Chancellor Kent, in his comprehensive treatment of this question, says of the relations of principal and factor:

/' “ Though a factor may sell and bind his principal, he can not pledge the goods as a security for his own debt, even though there be the formality of a bill of parcels and a receipt. The principal may recover the goods of the pawnee, and his ignorance that the factor held the goods in the character of factor is no excuse.

“ The doctrine that a factor can not pledge is sustained so strictly that it is admitted he can not do it by endorsement and delivery of the bill of lading any more than by delivery of the goods themselves. To pledge the goods of the principal is beyond the scope of the factor’s power; and every attempt to do it under the color of a sale is tortious and void.” 2 Kent, p. 626.

In confirmation of this principle this court has frequently held that the factor can not pledge property consigned to him.

In Hadwin vs. Fisk, 1 An. 74, our predecessors said:

“ On the question of law the doctrine is well settled that the factor can not pledge for his own debts property consigned to him, nor can he give it in payment of his own debts.”

The same was announced in Bonnot vs. Fuentes, 10 An. 70.

In Young vs. Scott & Cage, 25 An. 313, the court said:

This court has frequently decided that the factor can not pledge or give in payment of his own debts property entrusted to him for sale.” 17 La. 166; 1 An. 74; 19 — 3000.

In Allen vs. Bank, 120 U. S. 20, the Supreme Court expressed its approval of this doctrine thus:

“By the common law a factor or agent for sale has no power to pledge, whether the owner has intrusted him with the possession of the goods themselves or with the symbols of them, as by consigning them to him by a bill of lading in which he is consignee or endorsee; ’ ’ .quoting Kent with approval.

But it is contended in this case that the bills of lading were en-\ ■ dorsed, and, therefore, the bank was authorized to accept them in pledge, as it would have accepted other commercial paper.

But it is necessary that we should take into consideration the character and incidents of a bill of lading, and ascertain to what extent they are negotiable and in what manner they may become so.

Kent defines a bill of lading to be “ a receipt for the conveyance of the cargo of a carrier; and, though it is signed by the master, he does it as the agent of the owner, and it is a contract binding upon them. By the bill of lading the master engages, as a common carrier, to carry and deliver the goods to the consignee, or Ms order. * * * “ It is the document and title of the goods sent; and, as such, if it be to order, or assigns, is transferable in market. The endorsement and delivery of it transfers the property in the goods from the date of delivery.” 3 Kent 207. " *"

Therefore, the bills of lading issued by the railroad company to\ Webb, as the shipper, primarily evidenced his title. They are in the i name of Webb alone, and not of the bearer or order. The goods were not deliverable to Lallande or order, or assigns, but to him in-| dividually. The provisions of the Act of 1868 on this subject are that:

“ Any bill of lading given by any forwarder, boat, railroad, transportation or transfer company, may be transferred by endorsement therein, and any person to whom the same may be transferred, shall be claimed and taken to be the owner of the goods, wares, merchandise, grain, flour or other produce, or commodity therein specified, so far as to give validity to any pledge, lien or transfer made, or created by sueh person or persons,” etc. Sec. 6, Act 150 of 1868.

But as Lallande alone was named as the consignee in the bills of lading and the goods were not thereunder deliverable to his order or to his assigns, his endorsement operated only as an assignment of them to the bank.

But in any event, an endorsement of a bill of lading has not a like feffect as the endorsement of bills and notes.

In the ease of Shaw vs. Railroad Co., 101 U. S. 557, the Supreme Court considered the effect of an endorsement of a bill of lading which was made under a similar act to that of 1868, and they said :

“ It does not nece'ssarily follow, therefore, that because a statute has made bills of lading negotiable by endorsement and delivery, all the consequences of an endorsement and delivery of bills and notes before maturity ensue, or are intended to result from such negotiafcion * * * * * * * * * * *

“ The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, used for the transmission of money, or for the payment of debts or purchases. It does not pass from hand to hand, as bank notes or coin. It is a contract for the performance of a certain duty. True, it is symbolical of ownership of the goods covered by it — a representative of the goods. But if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost them, or from whom they were stolen. Why then should the sale of the symbol or mere representative of the goods have such effect?”

This the court held not to be the case, and said further:

“No statute is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express. Especially is so great an innovation as would be placing bills of lading on the same footing in all respects with bills of exchange, not to be inferred from words that can be fully satisfied without it. The law has most carefully protected the ownership of personal property, other than money, against misappropriation, by others than the owner, even when it is out of his possession. This protection would- be largely withdrawn, if the misappropriation of its symbol, or representative, could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the person from whom he took the property had no right to it.” (Italics ours.)

When the fact is considered that the bills of lading in question, ■ were not negotiable in form, and the cotton was not deliverable to the order of Lallande, and that, therefore, the bills of lading were not transferable in market “when Lallande received them; and the fact that even if they had been endorsed, they would have only pos-\ sessed 'a restricted negotiability, and, if lost or stolen, could have been recovered from a bona ft$e holder for value; when added to the fact that the bank acquired them from a merchant and factor, without question, and who was without authority to pledge them for his own debt, it seems clear that the owner of the property should recover.

Lallande, being a commission merchant and cotton factor, and well known to the bank as such for a series of years anterior to the time of these transactions, it is chargeable with notice of the relations existing between the parties, or it was reasonably put upon its guard against danger by the possession of such knowledge, and under the circumstances should have instituted proper inquiries of Lallande. Surely the bank can not plead ignorance of the law prohibiting a factor to pledge his customer’s property for his own debt, and at the same time protect itself by pleading its own supposition of Lallande’s ownership, from what appeared on the face of bills of lading which are non-negotiable in terms. By the course of its own dealing it assumed the risk of Lallande’s title and the validity of the pledge.

This case, in our opinion, occupies the precise attitude of Stern Bros. vs. Bank, 34 An. 1120. In that case it is stated'that the plain. tiffs owned the coupons; that Bader & Co. had no authority to pledge them to the bank; that they had so pledged them for their personal account after their maturity. The court held:

“The authorities are quite numerous, and entirely convincing, that, the purchaser or pledgee of negotiable instruments after maturity, whose rights are derived from one who is not the owner, and who is. not authorized to pledge, acquires no title or rights thereto or there-y upon as against the true owner.”

Bills and promissory notes overdue are still negotiable quite as much so as they were before they became due, but the effect of their transfer after maturity is different from the effect of such transfer before maturity. In the latter case the purchaser, or pledgee, in good faith acquires free of equities between the original parties;, but in the former case he does not. So it is in respect to the transfer of non-negotiable bills of lading; the transfer passes only such! title as the transferor had, subject to equities existing between ' him and the consignor and shipper.

/ This is nota case for the application of the equitable estoppel plead ?by the bank against the claims of the owner. As far as the record shows, the shipper had no agency whatever in the matter, and evidently accepted jnst such a bill as the carrier tendered him. As was very justly observed by the Supreme Court in the Liverpool Steam Co. vs. Phœnix Ins. Co., 129 U. S. 441: “ The carrier and his customers do not stand upon a footing of equality. The individual customer has no real freedom of choice. He can not afford to higgle or stand out and seek redress in the courts. He prefers rather to accept any bill of lading, or to sign any paper that the carrier presents; and in most cases he has no alternative but to do this or abandon his business.”

The plaintiff seemed to have had no choice or volition in the matter, and the doctrine of equitable estoppel does not apply to such a case.

Judgment affirmed.


text:
    No. 10,644.
    The State of Louisiana vs. Thomas Mason.
    A verdict, “guilty of wounding less than mayhem,” is responsive to an indictment charging that the accused has “wilfully, maliciously and feloniously inflicted with a dangerous weapon on O. a wound less than mayhem,” and is good.
    The ruling in State vs. Watson, 41 An. 599, has no hearing. It was.niade in. a case in which the charge was that the accused hud feloniously, etc., the words wilfully and maliciously, found in the statute, having been omitted and replaced by the previous one.
    Where an indictment contains two counts, and the verdict is guilty of the lesser offence, it will be sustained.

      \ PPEAL from the Twenty-sixth District Court for the Parish of 11. Jefferson. Rost, J.

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

      Alfred E. Billings for Defendant and Appellant:
    In a special verdict, in a criminal ease, all tlie facts constituting- the crime charged, must he found, or judgment will he arrested. Proffat on Jury Trial, S. S. 441-444; 3 An. 512; 20 An. 354; 36 An. 857; 37 An. 730; 38 An. 3B9.
    A verdict of “ guilty of wounding less than mayhem,” finds defendants guilty of no crime-known to the law. 41 An. 599.
   The opinion of the court was delivered by

Bermudez, O. J.

The accused was prosecuted for an assault with intent to murder, and, in another count, for wilfully, maliciously and feloniously, with a dangerous weapon, inflicting on one Henry Ourtis a wound less than mayhem.

He was found “guilty of wounding less than mayhem."

He moved in arrest, on the ground that the verdict is not responsive to the indictment. The motion was overruled, he was sentenced, and has appealed.

He has filed in this court an assignment of errors to show that the motion in arrest ought to have been sustained.

His only reliance is on the recent ruling of this court in State vs. Watson, 41 An. 599, by which he claims that it has been held that the plea of “guilty of wounding less than mayhem" was a plea of “ guilty of no crime known to the law."

By reference to the opinion, it will be perceived that the ruling was made in a case in which the indictment merely charged that the accused had feloniously inflicted, etc., the words “wilfully and maliciously," found in the statute, having been omitted, and the previous word, not in the statute, feloniously, substituted therefor.

The court held that the offence charged is statutory; that the word used was meaningless and surplusage; that the offence should have been charged in the words of the statute, or in words conveying the clear meaning of the language used in the statute.

It is well settled that when an indictment charges no offence known bo the law, and the accused pleads guilty to the charge, none is confessed.

In the present instance, the indictment charges the offence to have been committed wilfully, maliciously and feloniously.

The verdict returned was “guilty of wounding less than mayhem,” is responsible to the second count, and therefore good. See State vs. Green, 37 An. 382, and cases cited.

Judgment affirmed.


author: Fenner, J. Bermudez, O. J.

text:
    No. 10,524.
    Eugene Schmitt vs. Drouet & Rabasse. James P. Guinault vs. Drouet & Rabasse. F. Trepagnier vs. Drouet & Rabasse. Pierre Birba vs. Drouet & Rabasse.
    In cases of appeals taken by petition not filed in open court in presence of adverse party, citation is essential.
    Tlie law requires appellant to furnish the necessary stamps for the citations of appeal and when, owing to his failure so to do, the citations are not issued and served, this is imputable to his fault.
    Want of citation imputable to appellant’s fault entails dismissal of appeal.
    Appearance of appellees in lower court to urge dismissal of appeal before the return day thereof does not operate a waiver of citation.
    The law requires the appellees in this court to file all their grounds for dismissal of appeal within three days; hence, provided they plead want of citation as the fast ground, it will not be waived by the subsequent addition of other grounds.
    An appellee has a right to urge, on a motion to dismiss, want of citation and other grounds.
    All the grounds, in the same appearance, must be considered as urged in the alternative.
    By relying on the grounds supplementary to that of want of citation, the appellee does not waive the first ground of such want.
    Were he required to urge want of citation alone and remitted to the other grounds in case of the overruling of the first ground, he might come too late afterward.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Gharles Longue for the Appellants
    cited: 26 An. 148; 23 An. 803; 5 La. 258; 4 La. 91; 10 Rob. 140; 27 An. 542.

      W. E. Murphy and Omer Villeré for the Appellees
    cited: 22 An. 626; 25 An. 623; 21 An. 154; 22 An. 115; 29 An. 776.
   Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The motion is based on three grounds, of which the first is that, by the fault of appellant, appellees were not cited.

The appeal was not by motion in open court, but by petition, and, under the plain terms of the Code of Practice, citation was necessary.

Appellants’ contention that the concluding sentence of Art. 574, C. P., which says: “In such case no citation of appeal or other notice shall be necessary,” applies as well to appeals by petition as to those by motion in open court, provided the petition be filed at the same term with the judgment, has no merit. The article has been too often eonstrued-in a contrary sense to leave such question open.

The failure to cite the appellees is stated in the clerk’s certificate to be due to appellant’s failure to furnish the necessary stamps therefor. The law requires such stamps, and made it the duty of appellant to furnish them.

The absence of citation is therefore clearly imputable to his fault.

It is elementary that when, by appellant’s fault, the appellees have not been cited, the appeal must be dismissed.

Appellant claims a waiver of this exception by two causes:

1. That, in the lower court, before the return day of the appeal, appellees appeared in the lower court and moved the dismissal of the appeal on the grounds cognizable there. As this took place before the time for service of citation had expired, and before the appellees knew that there would .be a failure to cite, it is clear it can not operate any such waiver.

2. That, in the motion to dismiss, he embodied other grounds than that of want of citation. The first ground urged is the want of citation, and the other grounds stated follow.

The rule that appearance for any other purpose than to except to want of citation is, in ordinary suits, a waiver of the latter defect, can not apply in this case. The law required the appellees to file all their grounds for dismissal within the limited delay of three days. They could not, as in ordinary suits, stand on their plea of want of citation, and abide its determination before filing other pleas. Any grounds which they failed to file within the three days were irrevocably abandoned. • The law imposed no such penalty upon the exercise of their right to urge the absence of citation. It only required that they should urge such exception first and in advance of any other. They have the right to have it decided, and, if overruled, then to have their other grounds passed upon.

As we conclude that the want of citation is sufficient ground for dismissing the' appeal, the other grounds pass out of view.

Appeal dismissed.

On Application por a Rehearing.

Bermudez, O. J.

The grounds on which the appellees moved to dismiss the appeal were logically set forth: want of citation, insufficiency in amount of the bond, etc.

They were considered as urged in the alternative.

The appellees had to object to the want of citation at the very threshold, before resorting to any other means. Had this not been done, but had the other grounds been presented alone, they could not have subsequently pressed want of citation, which would have had to be considered[as waived.

The appeal was dismissible on the first ground, and if it was not valid, it might have been for those next stated.

Obviously the court was called on to pass upon the grounds in the order in which they were preferred.

As the court deemed that the appelle.es had not been cited, by the fault of the appellant, it became unnecessary to inquire into the other objections, which could have been examined only had the first ground been found untenable.

The appellees were not bound to urge the^waut of citation alone, and reserve the other objections for another appearance. There are some grounds which must be set forth within a certain delay after the return day, and which, if not then filed, could not afterward be entertained, as coming too late.

The appellees could have urged, as they have done, the want of citation at first, and next, eventually, seriatim, and in the alternative the other grounds of dismissal, in the same first appearance. This they did consistently.

We have not been shown in what respect the previous decree is erroneous.

Rehearing refused.


text:
    No. 10,620.
    The State of Louisiana vs. Louis Chantlain.
    Arts. 338 ana 340, O. R., aefine and limit tlie causes for which judges may be recused or may recuse tliemselves. While it .is the duty of the judge to ref er pleas assigning any of such ground of recusation to a judge ad hoc, for trial, irrespective of the merits, this duty does not apply to pleas which set forth no legal cause of recusation and which, if admitted to be true, would furnish no ground therefor. Such pleas the judge may treat as frivolous and made for delay, and itfay set them aside without reference.

      APPEAL from the Thirteenth District Court for the Parish of Acadia. Lewis, J.

      Walter H. Rogers, Attorney General, for the State.

      Chas. W. Duroy for Defendant and Appellant:
    A motion to recuse a judge can not be tried by the judge sought to be recused. It is bis plain duty to ref er tbe matter to some judge ad hoc. 33 An. 1293; 37 An. 253; 38 An. 217; 39 An. 995.
   The opinion of the court was delivered by

Fenner, J.

The sole ground of error assigned arises on a bill of exceptions to the ruling of the judge overruling a motion to recuse him and refusing to refer it for trial to a judge ad hoe.

If the motion had assigned any legal ground for recusation, it would have been the plain duty of the judge to refer it for decision to a judge ad hoe, under our repeated decisions. 38 An. 1293; 37 An. 253; 38 An. 247; 39 An. 995.

But these decisions do not refer to motions which, upon their face and admitting all their allegations to be true, afford no legal ground for recusation.

The Code of Practice, Art. 338, is very explicit in defining and limiting the causes for which a judge may be recused. He can not be recused, nor, under Art. 340, can he recuse himself, for any other causes than those so specifically mentioned.

The motion made by defendant sets forth no one of these causes. It was frivolous on its face, made only on the eve of trial, and could have no purpose or effect but to create delay.

When we said, in the opinions above referred to, that the judge’s duty to refer was irrespective of the merits of the plea, of course, we meant only the issues of fact involved under a plea valid if sustained by proof. We did not mean to compel judges to go through the idle ceremony of referring pleas which, if admitted to be true, would furnish no ground for recusation. This would be to issue a patent for a brand new device to obtain delays in criminal causes which the clumsiest hand could operate successfully.

Judgment affirmed.


text:
    No. 10,600.
    H. & C. Newman vs. J. E. Frevin.
    1. When a d oí on (hint in executory proceedings for the seizure and sale of mortgaged property sets up a plea in compensation of the debt, and, makes the requisite affidavit, ho is entitled to a preliminary injunction, as of right and without bond.
    2. Without some proof of alleged simulation, documents annexed to the defendant’s answer for the purpose of clearly showing the compensable character of his demand, will not be considered sufficient to authorize a.refusal of the preliminary order by the judge of first instance, unless their recitals are subject to no other reasonable interpretation.
    APPEAL from the Civil District Court for the Parish of Orleans. . King, J.

      White & Saunders for Plaintiffs and Appellees.

      Fergus Kernan for Defendant and Appellant:
    1. The defendant in executory process who alleges under oath that the debt on which executory process issued is extinguished in some legal manner (e. g., by compensation) is entitled to an injunction without bond. C. P. 738, 739, 710; Corner vs. 7,untz, 11 An. 861.
    2. The defendant in this case filed an answer alleging under oath that the mortgage notes sued on wore extinguished by compensation and praying for an injunction without bond. (Submitted, that while Article 738, C. I’., speaks of the filing of “an opposition in writing,” the matters urged ¡jin opposition may be embodied either in a petition or in an answer, and that the more correct practice is to present such matters of opposition in the form of an answer to the executory process. 4 Ra. 90; 16 An. 124, Conrad vs. ReBlane.)
    3. The trial court had nothing to consider except the petition for executory process and the defendant’s answer or opposition, alleging under oath the extinguishment of the debt by compensation. (Submitted, under such pleadings the trial court was without discretion to refuse the injunction. C. P. 740.)
   The opinion of the court was delivered by

Watkins, J.

This is an appeal from an interlocutory judgment or decree refusing the defendant an injunction against an order of seizure and sale, predicated upon his affidavit that the mortgage debt had become extinguished by compensation previous to plaintiffs’ acquisition of the mortgage notes.

Defendant avers that when Albert Meyer was the owner of the notes in suit, he acquired, by purchase from the Bank of Oomm'erce of St. Louis, a $6000 interest in a judgment it held against Meyer for a much larger sum, with due notice to him of the transfer, and therewith said notes were compensated and extinguished. That this transaction occurred on the 2d of October, 1889, and the plaintiffs acquired said notes on the 9th of said month, subsequent to their maturity, and subject to all equities between himself as maker and Meyer as payee, and that the plea of compensation is good against them in their hands. That H. & C. Newman, as the holders of said mortgage notes have petitioned for and obtained an order of seizure and sale against the mortgaged property, and will proceed to seize and sell the same, unless restrained by injunction, and to which the seized debtor alleges himself to be entitled, as of right, without bond, and upon making the affidavit prescribed by law. Code of Practice, Article 789.

In illustration of the manner in which he acquired an interest in the judgment of the bank against Meyer, the defendant avers that he executed to the bank a title to the mortgaged property, which he caused to be duly recorded, and of which the bank took immediate possession. The deed, with the accompanying cei'tificate of the Registrar of Conveyances appended, was annexed to the defendant’s answer. On this showing the District Judge declined to grant an injunction without assigning any reasons in writing.

Counsel for the plaintiff insist, in argument and brief, that the judge grounded his refusal on the manifest simulation of the transaction between the defendant and the bank. In proof of such apparent simulation, (and we employ the phrase “ apparent simulation ” because the judge refused the injunction upon a simple inspection of the papers, and heard no evidence, of course), we are cited to the concluding sentences of the deed, viz:

“The portion of the judgment so transferred is to be pleaded in compensation against these mortgage notes; the Bank of Commerce is to defray all legal expenses in making the plea of compensation.

“When said notes have been canceled as compensated, and the mortgage claim cleared from the property, the Bank of Commerce is to pay me §800 cash.”

We are also referred to a supplemental statement, made in writing and signed by the defendant, contemporaneously with the deed, and which is as follows, viz:

“In consideration of the Bank of Commerce of St. Louis subrograting me to such portion of their claim against Katz & Meyer as partners, and Albert Meyer individually, as will compensate the mortgage notes held against me by Albert Meyer, * * * I hereby agree that the Bank of Commerce * * * shall receive all that may be realized out of their claim so subrogated.”

Prom these documents we extract the three significant paragraphs illustrative of the view of plaintiff’s counsel, viz:

1. “ The Bank of Commerce is to defray all legal expenses in making the plea of compensation.”

2. “ When the notes have been cancelled * * * and the mortgage claim cleared from the property, the bank * * * is to pay $300 cash.”

3. 1 ‘ In consideration of the bank * * * subrogating me (the defendant) to a portion of its judgment against Meyer, I hereby agree that the Bank of Commerce * * * shall receive all that may be realized out of their claim so subrogated.”

The theory of the defendant is that he conveyed to the Bank of Commerce the property mortgaged in consideration of a $6000 interest in the bank’s judgment against his mortgagee, Meyer. By this means defendant expected to extinguish, by compensation, his mortgage notes to Meyer, discharge the mortgage from the property he had transferred to the bank, and thus secure to it an' unencumbered title.

Of course the defendant expected to lose the property, which was of insufficient value to satisfy his debt, but he wished to obtain his discharge from the debt to Meyer and the plaintiffs. The bank was to receive the property as compensation for a $6000 payment on its judgment against Meyer. In such a transaction it appears to us perfectly legitimate for the bank to agree to defray the expenses of a litigation by which it was to be so largely benefited, and to pay $300 additional, as a difference in value in the. transaction, when it should be concluded. And when by a supplemental agreement, of same date as the deed, defendant consented that “the bank * * * shall receive all that may be realized out of their claim so subrogated,” he doubtless intended to convey the same idea in another form of words. We can not readily perceive in what other way the bank was to realize on its judgment against confessedly an insolvent person. And if it had been possible for the bank to have realized otherwise, it would not have made the trade it did, when an execution could have served more efficaciously.

Without the light of any testimony other than that furnished by the answer and .the annexed documents, we do not feel warranted in the assumption that the transaction was manifestly simulated or apparently unreal. The defendant having distinctly and unequivocally set up a demand in compensation against an executory mortgage and notes, and made the requisite oath, we think him entitled to a preliminary injunction on the showing made.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that the cause be reinstated and remanded to the court a qua for further proceedings according to law, and the views herein expressed — costs of appeal to be taxed against the plaintiffs and appellees, and those of the lower court to await final judgment thereon.


author: McEneuy, J.

text:
    No. 10,592.
    L. Waterbury & Co. vs. The Atlas Steam Cordage Company.
    The capital, machinery and other property employed in the manufacture of cordage, rope and twine is exempt from taxation.
    Temporary interruptions in the operations of the factory employed in manufacturing articles enumerated in Art. 207 of the Constitution, do not subject the property and machinery employed therein to taxation.
    Where the factory is leased, and the object of the lease is to prevent the manufacture of the articles required to be manufactured to exempt either property and machinery from taxation, the object of the lease is in direct opposition to the declared purpose of Art. 207, and the property and machinery become subject to taxation. State taxes, privileges and mortgages for the years 1883 and 188á are prescribed by live years, under Act 96 of 1882.
    APPEAL from the Civil District Court for the Parish of Orleans.. King? J".

      Henry C. Miller for Plaintiffs and Appellees:
    The capital, machinery and other property employed in the manufacture of cordage, rope and twine is exempt from taxation. Constitution, Art. 207.
    The State taxes, taxprivileges and mortgages for the years 1883 and 1881, involved in this case, are prescribed by five years and of three years. Acts 1882, No. 96, Sec. 31; Session Acts, p. 130; Acts 1886, No. 98, Sec. 31; Session Acts, p. 115; unless an interruption is proved.

      This court lias no jurisdiction of the appeal. The city taxes involved are under $2000. The State taxes involved arc also under $2000. See statement of facts. The question is the prescription of these taxes. The only other issue is the application of Art. 107 of the Constitution to the Atlas Steam Factory. Neither the act involved or the character of the question gives this court jurisdiction. State Constitution, Art. 81; 3d Municipality vs. Blanc, 1 An. 386; 4th Municipality vs. Corning, 4 An. 407; Board vs. Pooley, U An. 743; Favrot vs. Baton Bongo, 38 An. 320.

      W. B. Sommerville, Assistant City Attorney, Garitón Hunt, City Attorney, and Wynne Rogers, Attorney, for the State of Louisiana, Appellants:
    1. Hope is not a textile fabric; and a manufacturar of rope is not exempt from taxation. Art. 207, Constitution. Yerbo Worcester.
    2. Property designed as a manufactory of textile fabrics, which is notin operation, is not exempt from taxation. Constitution, Art. 207.
    2. A manufactory leased by the owners thereof to a third person is not property employed for manufacturing purposes in the intendment of the Constitution, and is not, therefore, exempt from taxation.
   The opinion of the court was delivered by

McEneuy, J.

The plaintiffs were mortgage creditors .of the defendant company. They obtained a writ of seizure and sale against the property of the cbmpany for their debt. The property was sold and adjudicated to plaintiffs. The price bid was paid into the hands of the sheriff.

After the sale of the factory L. Waterbnry & Co. tookarule against the City of New Orleans and the State to cancel and erase the inscriptions of the tax mortgages and privileges in favor of the city and State.

The grounds for the sale were that the property of the company, the lots and buildings and machinery were exempt from taxation under Act 207 of the Constitution of the State; that the taxes, tax privileges and mortgages were prescribed under Act 96 of 1882.

The taxes alleged to be due the City of New Orleans have been paid except those for 1888.

The only questions, therefore, presented are whether or not the property of the Atlas Cordage Company was exempt from taxation in pursuance of Act 207 of the Constitution, and if not have the taxes been prescribed as against the State.

The defendant company was established, in the city of New Orleans in 1882.

Article 3 of the act of incorporation of the company says: ‘ ‘The purposes for which this corporation is established and the nature of the business to be carried on by it are declared and specified to be the conversion or manufacture of any textile, fibrous or other substance into cordage, twine, rope and other goods, ware sand commodities and the sale of such products, either as raw material or in a manufactured state; and in the execution of such object and purpose to erect and operate or conduct and carry on manufactures therefor.”

Property was acquired, and boilers, engines and machinery placed therein and the manufacture of rope was begun and continued with interruptions. A large amount of capital was invested and the factory when running employed over 100 hands. The meaning of the article of the Constitution is very piain. It was intended to cover all textile material used in converting it into manufactured articles, such as rope, fish lines, and other articles of like nature, either twisted or woven, or worked into another state or condition, so that it becomes a manufactured article from a textile material.

The property and machinery therefore employed in the manufacture of rope and twine in a factory which works more than five hands is exempt from taxation. City vs. Arthurs, 36 An. 98.

During the years 1883, 1884 the company ceased operations and was not engaged in the manufacture of any textile material into articles for which it was created. In 1885, 1886, 1887 the factory was in operation. In 1888 it was not manufacturing, for prudential reasons, on account of the high price of hemp and the difficulty of procuring the said material in Mexico.

The object of the constitutional exemption was to encourage the introduction into the State of machinery for the purpose of manufacturing the articles enumerated in Article 207. As long as the factory exists, and its property and machinery are dedicated to the purposes required by Article 207, the reasons for the exemption exist.

It was not the intention of the framers of the Constitution that the State should supervise the management of the factory, and inquire into the reason for every interruption of its business in order to subject its property to taxation. This course would destroy the object and purposes of the constitutional exemption, as. it is not likely that capitalists would be willing to subject themselves to such inquiries.

The property and machinery, up to the time of the dissolution of the corporation, except for the years 1883 and 1884, are exempt from taxation, as the interruption in the operations of the factory were for satisfactory reasons.

In 1883 and 1884 the company leased the factory to Waterbury .& Co.

The object of the lease was to close the factory so that no rope could be manufactured.

It was evidently done for the purpose of stopping competition and reducing the supply of rope.

The closing of the factory for these years for this purpose was in •opposition to the declared object of Article 207. The property and machinery were not employed for the purpose for which the exemption was granted.

It is liable for taxation during these years, as it then abandoned the business of manufacturing rope.

The prescription of five years is pleaded against the taxes for these years for the taxes due the State. No interruption of prescription is shown. The plea must therefore prevail. Sec. 34, Act 96 of 1882.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,596.
    Simon Hernsheim vs. The Atlas Steam Cordage Company.
    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Bayne, Denigre & Bayne for Plaintiff and Appellant.
    Same Counsel for Defendant as in the preceding case.
   The opinion of the court was delivered by

McEnery, J.

The issues involved in this case are identical with those in Waterbury & Co. vs. Atlas Steam Cordage Co.

For the reasons assigned in that case it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, •and it is now ordered and decreed that the rule taken by the State Tax Collector be discharged, and the rule taken against the city be made absolute, appellees to pay costs of both courts.