text:
    No. 7063.
    The New-Orleans Canal and Banking Company vs. the City of New Orleans. W. Van Norden, Intervenor.
    So much of section second of the act No. 41 of 1877 as provides “ that all judgments-for drainage of said lands, judgments creating liens and for assessments for drainage of said lands, and all proceedings pending therefor, be and they are. hereby eanceled'and annulled,” and so much of the first and second sections of said act as exclude certain lands from the limits of the drainage district and exempt them.from all future drainage assessments, impair the obligations of' existing contracts and are unconstitutional.
    The Legislature can not so alter the charter of a corporation as to affect the rights, of third persons previously aeauired under the charter.
    The city of New Orleans can not be compelled to re-imburse the drainage taxes-voluntarily paid to the Drainage Commissioners, and actually expended for-drainage purposes.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor,. J.

      G. L. Bright for plaintiff and appellee.

      B. F. Jonas, City Attorney, and Sam’l P. Blanc for defendant and. appellant.

      Lacey & Butler for W. Van Norden, intervenor.
   The opinion of the court was delivered by

DeBlanc, J.

In 1858, several draining districts were established-in the parishes of Orleans and Jefferson, and a Board of Commissionersi appointed for each of said districts, for the purpose of reclaiming the swamp lands therein situated. To defray the construction of the works, necessary to execute that projet, an assessment was to be levied by the commissioners, and .the payment of the assessed contribution was. secured by a first mortgage and privilege on the lands so situated.

Before 1877, plaintiff paid, for the intended drainage, twenty five •thousand five hundred ninety eight dollars and sixty one cents, the whole of the assessments levied upon the lands it owns in the first ■drainage district, and now seeks to recover back that amount, on the •grounds:

1. That the consideration for which it was paid has entirely failed.

2. That, by act No. 48 of the General Assembly of 1877, its lands 'have been excluded from the drainage districts and from the benefits of •drainage.

3. That — -by one of the provisions of the aforesaid act — all judgments obtained for drainage in the several districts herein mentioned, •and creating liens on the lands therein comprised, and all legal proceedings instituted for that object, have been annulled and canceled.

To plaintiff’s demand the city answered:

1st. By a general denial.

2d. That the assessments paid, and the re-imbursement of which was demanded, were all paid under a j udgment rendered in “ the matter ■of the Board of Commissioners of the Second Drainage District, by the 'Second Judicial District Court, which judgment was res jxidicata and a •perpetual bar to any reclamation.

3d. That plaintiff had voluntarily paid said assessments now reclaimed.

4th. That the judgment rendered in the matter of the New-Orleans Canal and Banking Company vs. City of New Orleans, No. 3375, of Fifth District Court for the Parish of Orleans and known in the Supreme ■Court as No. 4350, formed res judicata and was a bar to plaintiff’s ■demand.

5th. That plaintiff had never paid any part of its assessment to the city of New Orleans; but had paid all to the Board of Commis■sioners of Drainage for the First Drainage District, long before act No. :30, of 1871, had made the city officers the collectors of the “drainage tax,” and such payments had all been expended in drainage work.

6th. That the city of New Orleans was not authorized nor empowered by any law to raise money for, or to pay, such as the plaintiff’s •demand.

7th. That’ act No. 48, of 1877, was contrary to sections 105, 109 •■and 110 of the State constitutions of 1852, 1864 and 1868, respectively, and of section 3, article 6; article 5 of amendments of 1791; of section 10, of article 1, and section 1, of article 14 of the Constitution of the United States, in that it impaired the obligation of contracts and divested vested rights in this wise. That under act 30, of 1871, a large amount of drainage work had been done, in payment of which drainage •warrants had been issued; that subsequently, under act sixteen, of 1876, and pursuant to city ordinances, the city of New Orleans had purchased the franchises to do the drainage work and great quantity of machinery, boats, etc., for such purpose, for all of which it had paid in drainage warrants. 'That these warrants, to a very large sum, were issued on the faith of the drainage tax, were only payable therefrom. That the withdrawal of any part of the tax, the destruction of any of the sources whence it must be drawn or the loss of the security found alone in the judgments and liens obtained for the collection of the same, impaired the obiigaticin of such contracts and divested vested rights.

8th. That said act 48 of 1877, was further unconstitutional, because it destroyed uniformity and equality of the tax' or assessment, relieved many in the taxing district from the obligation they were bound to-share in common with all; imposed double taxation on those not so relieved and was partial legislation, all contrary to articles 123,124 and 118, of State constitutions of 1852,1864 and 1868, respectively, and the aforesaid articles of the constitution of the United States.

Section 2d, of act 48, regular session of 1877, is as follows;

“ That all judgments for drainage of said lands, judgments creating liens, and for assessments for drainage of said lands, and all legal proceedings pending therefor, be and they are hereby cancelled and annulled ; provided, that the benefits of this act shall not be invoked in favor of any land until the State and city taxes due thereon are paid: provided further, that all lands situated within the above described lines, and excluded by this act from, the drainage limits established under previous laws, and upon which drainage taxes or assessments have already been paid, shall hereafter be exempt from all future drainage assessments.”

By the act of 1858, No. 165, “ to provide for leveing, draining and reclaiming swamp lands in certain portions of the parishes of Orleans- and Jefferson,” three draining districts were established, and a Board of Commissioners for each district. The Board of Commissioners were invested with all the rights and powers necessary to drain the several districts. It was made their duty to cause plans of the sections or districts to be drained to be made and deposited in the office of the recorder of mortgages — to apply to a district court for a decree that each portion is subject to a first mortgage lien and privilege in favor of the Commissioners for such amount as may be assessed on the property for its proportion of drainage.

They were then authorized to levy an assessment upon the superficial square foot to defray the construction of the work. A remedy for its collection was given.

The first section of act No. 51 of 1869 provides, that the three drainage districts are consolidated, the property of the three draining districts are transferred to tb.„e mayors of New Orleans, Jefferson Oity and •Carrollton and the police jury of the parish of Jefferson, left bank, and *’ all other property, such as maps, plans, tableau, all books pertaining to the business of said draining districts, all moneys and credits, deeds, mortgages and all other evidences of title to real estate and all assessments of taxes, etc., shall be turned over by the Commissioners of said drainage districts, to the Commissioner of Drainage whose appointment is hereinafter provided for.”

The second section provides for the appointment of Commissioner .of Drainage.

The draining of the several districts was and continues to be but one, a common and indivisible enterprise. Every canal, ditch or levee necessary to complete it, must be dug or built, not at'the costs of only a fraction, but at the costs of every fraction of each of said districts: otherwise, it might happen that those who have not, or who have the less contributed to the partial execution of the common enterprise, would alone benefit by the partly accomplished work paid for by others.

If, considering the projet an impracticable one, the Legislature had repealed every law providing for the drainage of lands in the parishes of Orleans and Jefferson, its action would not have amounted to a violation of the constitution, but the Legislature could certainly not select, within the limits of the districts which — for nearly twenty years— have been subjected to the burdens of that common enterprise, lands which shall and others which shall not continue to bear the already imposed, fixed and determined burdens, much less could it ordain and command that the mortgages and privileges which are — not an exclusive pledge of the State — but the pledge of the creditors of the several districts, and — indirectly at least — of those who have paid the assessed contributions, shall be remitted, cancelled and annulled.

Were it to the interest of the State, the city or those concerned in said enterprise, that the territorial limits of said districts should be reduced, that reduction could — in no way — authorize even the Legislature to distinguish between the lands embraced within the limits as originally fixed, to exclude a portion of said lands from the benefits of the proposed drainage, and to exempt the excluded portion from the charges and -liabilities actually incurred for work already done, determined and accepted. These liabilities and benefits must be borne and shared by all.

We unhesitatingly acknowledge — as contended by plaintiff’s counsel — that the whole of the expense of an improvement, may be imposed by the Legislature, not on merely the owners of the.property to be specially benefitted by the improvement, but on the whole of the corporation. This it can do, when the entire corporation is to be thereby benefitted — but we as unhesitatingly deny that the Legislature can — ■ lawfully — order, in any specified locality, a work of admitted and general utility to every portion of the same, and arbitrarily ordain that — to pay for the price of that public work — a tax shall be levied on exclusively the eastern section'of that locality.

It is manifest that so much of the second section of act No. 48 of the General Assembly of 1877, which provides “that all judgments for drainage of said lands, judgments creating liens and for assessments for drainage of said lands, and all proceedings pending therefor, be and ■they are hereby cancelled and annulled,” and so much of the first and •second sections of said act which exclude certain lands from the established limits of the drainage districts and exempt them from all future •drainage assessments, impair the obligation of existing contracts, destroy acquired rights and* violate the letter and spirit of our constitutions.

The debt legally contracted by or for the three districts is a collective debt, secured by a proportionate charge imposed on every tract of land included within their well-defined boundaries, and — until that debt be paid, or its invalidity judicially assailed and judicially decreed, in a proper suit, against the proper parties, and on proper evidence, the imposed charge shall continue to subsist. The Legislature has not, and •cannot lawfully exercise the extraordinary prerogative of ordaining that the indisputable obligation of one hundred parties, shall — though ■not reduced in amount — cease to exist as to ninety of those parties, and — by an arbitrary enactment — declare it to be and make it the obligation of the remaining ten.

“ The requirement of apportionment is imperative. And whenever the tax is a direct levy on property, there must be a taxing district. -Given a tax and a district, then the sum demanded of any one person, or laid upon any one parcel of property must have a fixed relation to the whole tax, as well as to that demanded of every other person or laid upon every other piece of property.” Cooley, Taxation, p. 159; Henry vs. Chester, 15 Vt. 460; Tide Water Co. vs. Coster, 18 N. J. Eq., 518. See, also, Wilson vs. Supervisors of Sutter, 47 Cal. 91; Woodbridge vs. Detroit, 8 Mich. 274, 309.

“ Though the districts are established at the discretion of the Legislature, the basis of apportionment which is jfixed upon must be applied throughout the district.” Cooley, Tax., 180; O’Kane vs. Treat, 25 Ill. 557, 561; Fletcher vs. Oliver, 25 Ark. 289.

“ There cannot be two rules of apportionment for the same district; if there could be, there might be any number, and in effect there would be none at all, and every man might be assessed arbitrarily.” Cooley, Ib. 180; Tide Water Co. vs. Coster, 18 N. J. Eq. 518.

Burroughs holds “ that the Legislature may, at any time, alter or modify the powers of municipal corporations: but when under the exercise of powers delegated, the rights of third persons have accrued, and they have assumed the form of a contract with the corporation, the Legislsture can not change the powers of the corporation so as to impair the rights of its creditors. The Constitution of the United States prohibits the States from enacting any law impairing the obligation of the contracts, and while the Legislature may alter or modify the powers of the subdivisions of the State, such alteration can not be allowed to affect the creditors of such subdivisions. They are entitled to claim that the corporation shall exercise such powers as it had at the time the contract was made. One of the classes of cases cited is when — after the subscription and issuing of bonds, the rate of taxation by the corporation is limited. In such cases the limitation does not affect the right of the creditor to have a levy made to pay his debt, although it may be necessary to exceed the limit. The operation of the act is prospective; and it cannot be construed retrospectively, so as to deprive the creditor of the right to the levy as it existed when the contract was made.”

B. p. 427 — 4 W. 5359 W. 47725 Wis. 12231 Penn. 175 — 51 111. 147 — 45 N. Y. 234 — 6 Kansas 256 — 25 Cal. 638.

“It is not in the power of the Legislature, under the guise of taxation, to give the property of A to B, or to impose the whole burden of a tax for the State upon one county,” and — for the same reason — the burden of a tax for a county on entirely one of its sections. “ It is wrong that the whole should be taxed for the benefit of the few, and equally wrong that the few should be taxed for the benefit of the whole.” Burroughs p. 22. The improvement necessary or indispensable to, and undertaken by a district, must be — not merely commenced — but executed either in whole or in part by the entire district. Unless or until all are relieved by the execution or failure of the undertaking, or — according to circumstances — by the satisfaction of the full or proportionate sham of their liability, all are and remain bound.

We find, in the record, that — in the excluded district — the assessments already paid amount to upwards of two hundred and forty thousand dollars, and that but an insignificant fraction of that large sum has been received by the city and its officers. Is it liable for the re-imbursement of the whole or of any part of that amount'?

Were we to consider, as conclusive evidence, the declarations contained in acts of the Legislature, that the districts have not been protected from overflow, that the laws enacted for their drainage have failed in their purposes, would that be sufficient to establish that the work contracted for and done, in furtherance of the projet, has not been performed at all, or not performed according to the terms of the contracts, and that every outstanding warrant given as the price of that work is without consideiation? Would those declarations — if taken as evidence — be sufficient to authorize the court to pronounce, in this suit, that in whosoever hands those warrants may have passed, and whether those by whom they are held and due be or not before us, they are invalid and void, worthless as to the creditors, binding on no one, and that every guarantee, mortgage and privilege securing their payment must be cancelled, erased and destroyed ? We believe not.

Judge Dillon — in his book on municipal corporations — states as follows the general rule in regard to the recovery of taxes already paid : to justify the claimant’s action, three principal facts must concur:

“ The authority to levy the tax must be wholly wanting, or the tax itself wholly unauthorized; in which cases the assessment is not simply irregular, but absolutely void. 2. The money sued for must have been actually received by the defendant corporation, and received by it for its own use, and not as an agent or instrument to assess and collect money for the benefit of the State, or other public corporation or person; and 3, the payment by the plaintiff must have been made upon compulsion, to prevent the immediate seizure of his goods or the arrest of the person, and not voluntarily. Unless these conditions concur, paying under protest will not give a right of recovery. The same principles are applicable to actions for the recovery back cf money paid for illegal license taxes or fines imposed by a municipal court.”

The taxes, the amount of which plaintiff seeks to recover from the city, were assessed and collected under the authority of several acts of the Legislature; and every cent of the drainage assessment paid by plaintiff to the city, was paid without compulsion and applied to the satisfaction of'drainage warrants. As to the most of the drainage taxes levied on plaintiff’s land, they were received and disposed of by the Board of Commissioners, and neither in law nor in equity, can the city be held liable for their application, misapplication or re-imbursement.

We conclude that plaintiff has not shown that its drainage taxes were levied and paid without consideration, and that it was shown — in. so far as defendant is concerned, that said taxes were voluntarily paid and properly disposed of. Under these circumstances, plaintiff cannot recover.

As no decree based on any of the pleadings could have — in any way — affected or impaired the alleged rights of Warner Yan Norden, Ms intervention has no legal ground to stand upon.

It is — therefore—ordered, adjudged and decreed that the judgment of the lower court in favor of plaintiff and against the city of New Orleans, rendered on the 17th and signed on the 22d of January 1878, be and it is hereby annulled and reversed, and that — in lieu of it — there be judgment in favor of the city of New Orleans and against the plaintiff, rejecting the latter’s demand.

It is further ordered, adjudged and decreed that the intervention of Warner Yan Norden be dismissed as in case of nonsuit: the costs of the appeal to be paid in solido by plaintiff and intervenor — and those of the lower court, by Yan Norden as regards the intervention, the others by plaintiff.

Rehearing refused.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 5779.
    Samuel & A. W. Smith vs. Crescent City Live-Stock Landing and Slaughter-House Company.
    The bona fide sale of the stock of an incorporated company, coupled with a power of attorney to the vendee to transfer it on the bonks of the company, is made complete by the deliveryto the vendee of the certificate of stock. It is not necessary to the perfection of the sale, and the consequent protection of the stock from tho seizure of the vendor’s creditors, that notice of the sale should be served on the corporation, or that an actual transfer of the stock should have been made on its books.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Henry 0. Miller for plaintiff and appellee.

      Hornor & Benedict and Thomas J. Semmes for defendants and appellants'.
   The opinion of the court was delivered by

Marr, J.

In February, 1872, Samuel and Andrew Smith purchased of C. Mehle & Co. one hundred shares, reduced to fifty, of the capital stock of the Crescent City Live-Stock Landing and Slaughter-House Company; and of C. Meble ninety shares, reduced to forty-five. The purchasers paid the price, the current market rate; and the two certificates representing these shares were delivered to them, with two powers of attorney, in each of which there was a blank for the name of the person to whom the transfer was to be made, authorizing Charles KHshaw to transfer, on the books of the Company, the shares standing in the names of C. Mehle and C. Mehle & Co., respectively.

A by-law of the corporation we presume, we do not find it in the charter, provides that “ all transfers of stock shall be recorded in the office of the said company, in a book of transfer to be kept for that purpose: ” and the two certificates in question state that the shares are traüsferrable only on the books of the company, in the one case by C. Mehle & Co. or their attorney, in the other by C. Mehle or his attorney, on the surrender of the certificates.

It appears that no notice was given to the company, and there was no transfer on the books of the company; but the certificates and powders of attorney remained in the possession of the purchasers from the date of the purchase.

Some time after this purchases the Bank of America, a judgment creditor of C. Mehle and C. Mehle & Co. in sólido, seized these shares of «took as the property of their debtors, under execution and garnishment in the hands of the company; and they were sold by the sheriff and adjudicated to Thomas Serrill. Thereupon Samuel and Andrew. Smith brought this suit to enjoin the transfer of the stock to Serrill; and they prayed that they be decreed to be the lawful owners, and be recognized as such by the company, In consequence of this suit Serrill did not pay the price of the adjudication. •

The district judge perpetuated the injunction granted in limine; ■and decreed that the Smiths be recognized to be the owners of the stock; and that it be transferred to them on the books of the company. From this judgment the company, Serrill, and the Bank of America appealed separately.

The question is, whether the title and possession vested in Samuel and Andrew Smith, by the delivery of the certificates and the powers of attorney to make the transfers on the books of the company, so that the «took was no longer subject to seizure, under execution, as the property •of C. Mehle and C. Mehle & Co., the judgment debtors.

The appellants maintain that the certificates of stock are not negotiable ; and that there was no such delivery to the Smiths as the law requires, because there was no transfer on the books of the company, and no notice given to the company. They rely on articles 2643 and 3160 of the R. C. C., the first of which declares that “ the transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place”: and the latter provides that •“ when the thing given in pledge consists of a credit not negotiable,” the proof of the pledge must be by authentic act, or by act under private signature duly recorded, and a copy of the act must have been duly •served on the debtor of the credit given in pledge.” They also cite and rely upon Harris vs. the Bank of Mobile, 5 An. 538.

The law requires tradition in order to make the sale of a thing complete as to third persons; and delivery is an indispensable condition of the contract of pledge. Whatever would constitute delivery, under the -contract of sale, would be also a delivery under the contract of pledge, -and vice versa.

' The Civil Code required certain formalities, for the contract of pledge, among others a notarial act, or an act under private signature registered in the office of the notary, containing an accurate description of the thing pledged. These formalities were obstructions to commerce ; and were felt as a serious inconvenience.. In 1852 the Legislature passed an act relative to pledges, which was re-enacted in the general compilation of 1855, and in the Revised Statutes of 1870 ; and was incorporated in the R. C. C., art. 3158. The first section provides that “ When a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations, or claims upon other persons, he shall deliver to the creditor the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights so pawned ; and such pawn, so made, without further formalities, shall be valid as well against third persons as against the pledgors thereof, if made in good faith.”

By section three of this act, -the substance of which is in the R. O. C., article 3160, and was in the Civil Code, article 3127, “ If a credit not negotiable be given in pledge, notice of the same must be given to the debtor.”

The stock in an incorporated company is not a debt due by the corporation to the corporators ; nor is it a credit of which the corporation is the debtor. The corporators’in the aggregate own the stock, according to their respective shares and portions ; and it can no more be said that' the shares of a corporator constitute a credit, a debt due to him by the corporation, than it could be said that the joint owners of a house or a ship are the debtors of each for his share.

It was well said in Harris vs. the Bank of Mobile, 5 An. 539, that the officers of a corporation are the keepers and possessors of the undivided property of the corporation for each and all of the stockholders ; and. the certificates of stock are the evidence of the ownership of that property in the hands of the holders. The word “ credit” is used in the act of the Legislature and in article 3160 of the R. C. C. to signify a debt, something due to one person by another; a right on the one part, and an obligation on the other, which create the relation of debtor and creditor between the two persons. It is clearly not applicable to the shares in an incorporated company, which do not constitute a debt, and of which no one is the debtor.

The second clause of article 3158, section one, of the act of the Legislature, authorizes the pledge of notes, bills, stocks, obligations, or claims upon other persons, by the delivery of the notes, or bills, or certificates of stock, or other evidences of the claims or rights so pawned, without further formalities. If the thing so pawned or given in pledge be a credit, a debt not negotiable in the legal sense of the term, due to the pledgor by another who is his debtor, then the pledge is not valid against third persons unless that debtor has been served with notice.

The R. O. 0., treating of the tradition or delivery of- the thing sold, declares that “ The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer”': article 2477 ; and, according to article 2481: “ The tradition of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser, with the consent of the seller.”

We have in this case all the requirements of these two articles for perfect tradition. The certificates of stock were the evidences of ownership, the titles of the incorporeal rights -represented by them; and these certificates were delivered to the purchasers. The powers of attorney to Kilshaw, who was acting merely for the Smiths, authorizing him to make the transfers on the books of the company, were coupled with an interest which made them irrevocable. They constituted the acts of transfer, as between the sellers and the purchasers ; and no other act was necessary, or could have been required of the sellers, to divest themselves of title and possession. Having the.-certificates in their possession, the purchasers had a complete guaranty that the corporation could not transfer the stock to their prejudice, since the corporation had bound itself to hold these shares subject to transfer by the sellers or their attorneys, on the surrender of the certificates. By producing these certificates, and the powers of attorney, the Smiths could have compelled the corporation, at any time, to have the transfers made on their books ; and the corporation had no power to transfer to.any other than the holders of these certificates and the powers of attorney. The thing sold, therefore, had passed beyond the power and control of the sellers, and into the power, possession, and control of the purchasers.

Articles 2642, 2643, of the R. C. C. relate exclusively to the transfer cf credits, rights, or claims against a third person. The word “ to,” as used in article 2642, is a mistranslation of the word “ sur,” in the Code Napoleon, article 1689, from which it was copied literally into our Code. The word “ to ” does not. make sense ; and the whole context shows that the article is dealing only, with the credits, rights, and claims which the transferror has upon or against a third person who is his debtor with respect to such credit, or right, or claim.

Article 2643, which requires notice to the debtor of the transfer having taken place, is clearly not applicable to.all the credits, rights, and claims referred to in article 2642. Promissory notes and bills of exchange, essentially negotiable, pass to the transferree without notice to the debtors, the makers, accepters, drawers, indorsers ; and yet they are credits, rights, claims upon or against third persons. Article 2643, therefore, must be restricted to such credits, rights, and claims as create the relation of debtor and creditor between the transferror and him who owes, is bound to acquit these credits, rights, and claims ; and it must also be restricted to such credits, rights, and claims as are not evidenced by a negotiable instrument.

The by-law which requires transfers of stock to be recorded on the books of the corporation regulates merely the respective rights of the corporation and the individual stockholders. No one can claim to be a stockholder, and to exercise the rights of a corporator, in virtue óf a sale of stock to him, until the corporation has taken cognizance of the sale, and, by transfer on its books, has substituted the purchaser for the seller. Whether one has acquired the character and the rights of a corporator, is a question to be determined by the laws of the corporation. Whether a purchaser has acquired a good and perfect title to any property or thing, tangible or intangible, is a question to be solved by the general laws of the State applicable to the sale and transfer of such objects. Samuel and Andrew Smith may not be corporators in this company, by reason of their neglect to comply with the requirements of the charter and by-laws ; but they may, nevertheless, be the owners, by perfect titles, of the shares of stock purchased by them.

In Bank vs. Lanier, 11 Wallace, 369, the Supreme Court of the United States had occasion to consider the effect of a stipulation in certificates of stock almost identical with that in the two certificates in this case, that the stock should be transferrable only on the books and on surrender of the certificates. The court regarded the power to transfer their stock as one of the most valuable franchises that could be conferred on corporations, and said that no better form of certificate could be adopted to assure the purchaser that he can buy with safety. “ He is told, under the seal of the corporation, that the shareholder is entitled to so much stock, which can be transferred on the books of the corporation, in person or by attorney, when the certificates are surrendered, but not otherwise.”

The court went on to say that this certificate was “ a notification to' all persons interested to know that whoever, in good faith, buys the stock, and produces to the corporation the certificates regularly assigned, with power to transfer, is entitled to have the stock transferred to him. And the notification goes further, for it assures the holder that the corporation will not transfer the stock to any one not in possession of the certificate.”

We understand this to be settled law in New York, Connecticut, and New Jersey ; and we do not think the law could be different elsewhere, in the absence of positive legislation to the contrary. The distinction is plain between the requirements of the law in order that title and possession shall vest in a purchaser, and the requirements of the charter and by-laws of a corporation in order that the holder and owner of a title to shares of the stock shall receive from the company a certificate of ownership, in his own name, and be admitted to the rights and privileges of a corporator.

There is an immense amount of the wealth of the country invested in stocks of the numberless corporations which have sprung into existence within a few years past. These stocks afford a most convenient and valuable basis of credit; and they are sold to a large amount daily, at all the great commercial centers. The holder who does not wish to sell may pledge his certificates for loans and discounts to an amount approximating their market value, with a reasonable margin for possible depreciation. The pledgee does nqt desire to become the owner of the stock ; and he would not think it necessary, nor would he have the right; to surrender the pledged certificates and have the stock transferred to him on the books of the corporation. Nor do we think the validity of the pledge could be made to depend on the giving of notice to the corporation, because the corporation has no power or authority to dispose of the stock, orto transfer it, so long as the certificates are not produced and surrendered. If the pledgee were required to have the transfers made on the books of the corporation, or to .give notice, the value of these certificates as a basis of credit would be greatly impaired, particularly where the pledge is made at a distance from the domicile of the corporation.

We entertain no doubt but that the act of 1852 was designed for the public convenience by facilitating the pledge of stocks and other securities ; and it required nothing more for the perfection of the contract than the delivery of the certificate of stock. But if this suffices for the perfection of this contract, it is because the delivery of the certificate is the only delivery that can be made of the stock which it represents; and that delivery is effectual, whether it be under the contract of pledge or the contract of sale.

The certificates in this case are in the usual form : a form which has been adopted throughout the United States, as well for the benefit of corporations, by encouraging investments in stocks, as in the interest of the public, to make these stocks a secure basis of commercial transactions, whereby their value is enhanced. These certificates are not promises to pay : they contain no words of negotiability, and they are not negotiable, in the ordinary sense of the term ; but, as the court said in. Lanier’s case, 11 Wallace, 377 : “Although neither in form or character negotiable paper, they approximate to it as nearly as practicable. They have become the basis of commercial transactions in all the large cities of the country, and are sold in open market, the same as other securities.”

We find nothing in Harris vs. Bank of Mobile, 5 An., which militates against the views we have expressed. That case is not applicable to this, because the title under which Harris claimed the stock seized by the bank was acquired more than four months after the seizure; and it was alleged that his title was simulated and fraudulent, as it afterward was proven to have been. Bank of Mobile vs. Harris, 6 An. 811.

This case is not complicated by any question of fraud or simulation in the title under which the purchasers claim, nor of pre-existing right in the seizing creditor. On the contrary, the purchase was made in good faith, at the current market rate, and in the usual course of business; and the evidences of title and the power to transfer were delivered to the purchasers long before the seizure. The title thus acquired was as complete as the nature of the objects of the purchase would admit of; and the subsequent seizure by a judgment creditor of the sellers was without effect, and it can not defeat or impair the right of the purchasers to have the shares of stock transferred to them on the books of the corporation, in accordance with the terms of the certificates and powers of attorney held by them.

The judgment appealed from is, therefore, affirmed with costs.


author: Manning, C. J.

text:
    No. 6661.
    U. Ozanne vs. Abraham Haber.
    A promissory note which, has for its consideration the discontinuance, by the holder of the note, of certain criminal proceedings instituted by him against a party for obtaining money under false pretenses, is void.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      Labatt & Clinton for plaintiff and appellant.

      'Brauglm, Buck & Binkelspiel for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

This suit is upon three promissory notes, aggregating one thousand and thirty-nine 50-100 dollars,'each having these words after value received “ as per agreement made this day between A. Haber and U. Ozanne.” The defendant is sued as indorser. The defence is fraud, and want of consideration.

The plaintiff, residing at Sardis, Miss, had made an affidavit against ■one Collins for obtaining money under false pretences, and had obtained ¡a requisition from the Governor of that State upon the Governor of Xouisiana, and had secured the arrest of Collins in New Orleans, and imprisoned him for safe keeping until he could be sent back to Mississippi. Collins had inveigled Ozanne into an advance of money for the furtherance of an enterprise, which he had conceived. He had discovered a process by which rags were to be converted into wool, had patented, this process as he represented, and was sure large and remunerative returns were in store for any one who had the sagacity and the nerve to embark in the venture. Ozanne was to share all the profits. Having obtained all he could from Ozanne, Collins came to New Orleans and was even more successful with the defendant Haber, who had become so captivated with the scheme that he had invested about four thousand dollars in the purchase of machinery for a factory to put the patent tó ■practicable use. The invention was a chemical process by which rags were to be reduced to, or converted into wool by dissolving the vegetable fibre, and leave the animal fibre intact. This is the description of •one of the witnesses.

When Ozanne, the plaintiff, came to New Orleans to get Oollins and •carry him back to Mississippi under the Governor’s requisition, he found the defendant Haber in the full tide of successful experiment with Collins’ patent. Haber was not willing that the inventor should be taken away from the field of his labour thus summarily. The result was that Haber gave to Ozanne the notes now in suit, the notes having been drawn by Collins in favour of Haber, and by him endorsed, upon Ozanne’s transferring to him all his interest in Collins’ discovery, and agreeing to dismiss the criminal proceedings against Collins, and leave him here. This is the agreement that is referred to at the end of each note.

This agreement recites that for and in consideration of these notes, Ozanne transfers all his interest in the contract with Collins to Haber, and agrees to dismiss the criminal proceedings at his own expense, and adds; “I, by these presents, voluntarily and freely withdraw all the criminal charges made by me against said Collins for obtaining money under false pretenses, the amount of money obtained having been secured to me by one A. Haber.”

We do not think we can enforce this agreement, or give judgment on the notes which form its consideration. Story says a promissory note will be void if the consideration is, in whole or in part, illegal. It may be illegal either because it is against the principles and doctrines of the common law, or because it is specially prohibited by statute. The former illegality exists wherever the consideration is founded upon a transaction against sound morals, public policy, public rights, or public interests, as for example contracts of any sort made with an alien enemy; contracts in general restraint of trade or marriage; contracts for the perpetration, or concealment, or compounding of some crime. Brom. Notes, 1187.

Another writer is to the same effect thus ; — Considerations impeding the course of public justice, as dropping a criminal prosecution for a felony, or a public misdemeanor, or suppressing evidence, are illegal considerations. Byles on Bills, 218. The principle is well established, and is constantly applied.

The plaintiff, having made an imprudent venture, found himself deceived, and his money .gone, and for the purpose of getting it back, resorted to criminal proceedings, which he hoped would extort it from the man who had played upon his credulity. Finding the defendant in the meshes, from which he was endeavoring to extricate himself, he availed himself in turn of the defendant’s delusion, and took his notes to reimburse himself, promising to release the criminal as a consideration therefor.

The lower court thought he was not entitled to recover upon notes given for such a purpose, and so think we.

J udgment affirmed.


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    No. 5714.
    Oscar Allen vs. the Merchants’ Mutual Insurance Company.
    Where in a contract of insurance which covers a storehouse, and thegoods therein, it is stipulated that should the assured subsequently take out a policy in any other company, the assurers should receive notice of It on pain of forfeiting thoir policy, a subsequent assurance of the house, or the goods, in another company, without notice to the assurers, will work tho forfeiture of the contract with them, whether the subsequent contract was legally enforceable or not.
    APP”EAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Isaiah Tharp for plaintiff and appellee.

      A. & W. VoorMes and Hornor & Benedict for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

This is an action upon a policy of insurance against fire. The claim is for six thousand dollars on a stock of furniture in the frame slated store on the corner of Magazine and Sixth streets, and one thousand dollars on furniture in a frame slated warehouse in its rear.

The defendant pleads in bar of recovery, that the policy is vitiated by the violation of that clause requiring written notice to be given it of insurance in other companies, and avers that the plaintiff insured the same property in the Lafayette insurance company, and failed to give notice thereof to the defendant.

The policy contains this clause; “ And provided further, that in case the insured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this corporation, and mentioned in or endorsed upon this policy, then this insurance shall bpvoid, and of no effect, and if the said insured or his assignees shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this corporation, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no effect.”

The policy is dated Nov. 22, 1871 and was renewed every year to the-same date 1874. On February 13, 1874 the plaintiff assigned his right in the policy to Mrs. Balser to the extent of $1,180. which the company approved, and the suit is to recover her interest as well as the plaintiff’s. On July 18,1874 the- plaintiff insured in the Lafayette company for two months for two thousand dollars, and the property is described in that, policy as “ stock of ready-made furniture contained in the two-story frame slated building situate on southeast corner of Magazine and Sixth, streets.”

The law upon the vitiation of a policy of insurance for non-compliance with the condition quoted above is well settled. The elementary writers are in accord upon it, and the point has been several times adjudicated by this court. 1 Phill. Insurance, 420. Walton v. La. Ins. Co., 2 Rob. 563. Battaille vs. Merch. Ins. Co. 3 Rob. 384. Leavitt v. West. Ins. Co. 7 Rob. 351.

It was attempted to be proved that the plaintiff did not know of this provision in the policy, but he ought to have known it. He had the-opportunity to know it. The clause is printed like other parts of the policy, and his negligence in not reading it is the only cause of his ignorance of its stringent provision. He agreed on his part to comply with, that stipulation as fully as he agreed to pay the premium, and is now barred from recovery for failure to do so. When he calls upon a court to compel the company to fulfill its part of the obligation, he must show that he has fulfilled all the conditions into which he entered.

The plaintiff insists that the rule of vitiation of policy, for want of notice of other insurance does not apply here, because he had brought, suit against the Lafayette company without success (for misdescription of policy), and as that contract cannot be enforced, it should not constitute a breach of the one he is now trying to enforce. But the clause of the policy set up against him is, not that if he should attempt to make an enforceable contract with other insurance companies and should fail in doing so, that his contract with the defendant should be at an end, but it forbade him to insure elsewhere absolutely without, giving notice, and obtaining consent.

He also urges that there were two separate risks, one on the furniture in the corner store, and the other on that in the warehouse, and his-insurance in the Lafayette company was on one only of these, and can. not therefore affect the other. There was but one policy issued by the -defendant, and the stipulation covering subsequent insurance applied to the property as a whole, and that was that the insurance then •effected should not be good if the plaintiff afterward effected any other “ on the property 1 e:eby insured.”

We are not disposed to think the plaintiff has acted fraudulently. His insured stock is proved to have been worth much more than the amount of his insurance. Like Leavitt’s case in 7 Bob. it is one of hardship, but the plaintiff can only blame himself that he did not inform himself fully of all the conditions of the policy. The clause in •question is one of the most usual conditions of insurance policies, or rather it is inserted in all of them.

There is error in the judgment of the lower court, and therefore it is ordered, adjudged, and decreed that that judgment is’avoided, and reversed, and that there be now judgment in favor of the defendant ■against the plaintiff upon his demand, and for costs.


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    No. 7116.
    John Blasini et al. vs. Succession of Silvestre Blasini.
    A suit by forced heirs against those in possession of the property of the succession', claiming to be owners under an executed will, instituted to annul the whole or part of the will, is properly brought in the probate court in which the will was admitted to probate and executed.
    "Where a man introduces a woman to his friends as his wife, calls her his wife, and he and she live together -publicly as man and wife until her death, and their children, born while they are thus living together, are baptized, reared and educated as their legal offspring, the law will presume that they had been lawfully married, and that their children are legitimate, until it is shown that no marriage between them ever took place, or that it was void on account of some nullity established by law,
    REPEAL from the Second District Court, parish of Orleans. Tissot,

      Labatt & Clinton and Jules Buisson for plaintiffs and appellees.

      Paul P. Théard for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

Silvestre Blasón died at his domicile, in New Orleans, in July, 1876. -A few days after his widow, Emilie Charlotte de Tily, 'Caused to be probated his will, made in 1859, by which she was appointed executrix, with' usufruct for 'life, or duriDg widowhood, of the -entire property of the succession; and her son, Silvestre Blasini, Jr., sole issue of the marriage, was constituted univeral legatee.

By judgment'of the twenty-fourth July, 1876, Widow Blasini was decreed to be entitled, in absolute ownership, as survivor of the community, to one half the property of the succession, and to the. usufruct.' of the other half; and her son, Silvestre, was recognized as sole heir and owner of the other half, subject to the usufruct of his mother. They were sent into possession, under their respective claims and titles; and? the succession was thus closed.

In September, 1876, this suit was brought by John Blasini, Joseph Blasini, and Loretto Blasini, claiming to bo forced heirs of Silvestre-Blasini, issue of his marriage with Isabella Barera, his first wife, who-died in 18-19. They demanded the nullity of the will, so far as it deprived them of their legitime; and they caused the Widow Blasini and her son Silvestre to be cited as defendants.

Defendants answered by general denial; and they specially denied that plaintiffs were legitimate children of Silvestre Blasini.

On the first trial the demand of the plaintiffs was rejected; but a. new trial was granted; and the district judge, after an exhaustive review of the testimony, concluded in favor of plaintiffs, awarding to them, each, one fourth of the succession. There was again a motion for new trial; whereupon plaintiffs filed a. remittitur, restricting the judgment in their favor to one fourth each, after deducting the-one third which the testator was legally entitled to dispose of to their prej udice. Considering this remittitur, which corrected the manifest error of the judge, the new trial was refused; and the defendants appealed.

In this court appellants have filed a peremptory exception that, as the succession was closed by the judgment of twenty-fourth July, 1876, sending the widow and testamentary heir into possession, no suit: could afterward be brought against the succession. If the- suit had been brought against the widow alone, in her capacity as executrix, it-could not have been maintained; but it was brought against the persons in possession claiming to be owners under the executed will. It was-brought by the proper parties against the proper parties, and in the proper court. A suit by forced heirs for recognition and to annul, in whole or in part, a testamentary disposition, is of probate jurisdiction;: and it fails within the cognizance of the court in which the will has been admitted to probate and has been executed.

There were several bills of exception taken, touching which it suffices to say that the objections went to the effect; and that all the testimony offered and received was pertinent to the only issue in the cause,, the legitimacy of the plaintiffs.

An immense mass of testimony was taken on the trial, which it is-not necessary to discuss separately and in detail. We shall state the material facts, as we consider - them proven, and our views of the law applicable to them.

Silvestre Blasini, a Corsican by birth, in early life a sailor, came to New Orleans in 1833, or 1834, when he was about twenty-five years of age. He pursued different avocations; and made one or more voyages to Mexico and the islands of the Gulf; but he finally established himself permanently in business as the keeper of an oyster saloon and coffee-house.

About 1835 he was living with a very young woman, a Mexican, of dark complexion, whom he introduced to his friends and acquaintances as his wife, whom he said he had married in Mexico, whose name was Isabella Barera; and he continued to live with her publicly, introducing her as his wife, calling her his wife, until she died.

There were six children, issue of this connection, the first born in 1836, the last in 1848. Three of them died, before their mother, and the survivors are the plaintiffs in this suit.

These children were reared in the house of their father and mother;- and they were treated, cared for, and educated in "all respects as their1 legitimate offspring. They were sent to schools of the highest respectability; they associated and played with children of their own age, of respectable parentage, living in the same vicinity, without any question as to their legitimacy; and the father caused a marble slab, with inscriptions, to be placed over the vault in which were buried two daughters, one born in 1836 the other in 1838, of whom the latter died in March, 1849, about two months before their mother. It will hereafter appear why the inscriptions on this slab were not produced in evidence.

On one occasion Blasini gave a dinner at his own house, on the anniversary of his marriage ; and when he and the guests, probably, had drank too freely, he resented some supposed or real indignity to his wife by a violent blow, for which he was arrested.

On another occasion, when one of the witnesses, a woman, asked him where he got that “pretty little Mexican,” as the phonographer reports it, or “ mulattress,” as one of the counsel, or “maitresse,” as the other counsel understood the witness, Blasini answered promptly: “You are mistaken; that is my wife.” “What church were you married in?” “ In Mexico,” he said. She immediately apologized ; and he said it was all right; but that she was his wife. This witness went to Blasini, as she says, merely to gossip. It is evident that the dark complexion of Isabella had-impressed the witness with the idea that she was colored, and, therefore, could not be the wife of Blasini; and licensed her, as she supposed, to speak thus slightly of her. The “ pretty little Mexican,” with whom the witness was not then acquainted, was in sight, but not within hearing. Blasini afterward introduced her to witness as his wife; and when witness told her, as a joke, what had passed between herself and Blasini, she told witness she was married.

On one occasion when one of the friends of Blasini censured him, ■out of the presence of Isabella, for his ill-conduct to his wife, he says Blasini told him she was not his wife.

On another occasion, a colored woman, who is rich enough to live off the earnings of the past, who did not hesitate to say that she was a ■concubine, and had been living in that condition for thirty-five years, testifies that she went to Blasini’s, as she was in the habit of doing, to buy fish or oysters. She says she found Isabella in a corner of the room, crying, as she told witness, because of the ill-treatment of Blasini. Witness asked why she allowed him to treat her in that way; and she said, “ because he has got the upper hfind of me. I am not married to him, and that is the reason he treats me so.” She thinks this was about 1848; and she says, on cross-examination: “I did not talk to her before that, or after that, about any thing.”

On another occasion, as one of the female witnesses says, Blasini visited witness and hex husband, at their home, and introduced witness and her husband to Isabella as his wife. She and Isabella immediately entered into conversation, sitting on a sofa, apart from the men; and she heard Blasini say to her husband, he was living with Isabella and having children by her, but that he was not married to her. Why not? Because it is a delicate thing; but she is colored, and I can’t marry her. Subsequently, Blasini came and told her husband Isabella was sick; and her husband, at the request of Blasini, sent her to see Isabella. Witness found her in bed, and in tears. In answer to. her inquiry as to what was the matter, Isabella said: “ I am grieved to think I am not married with Mr. Silvestre.” Witness went no more, and never saw Isabella again, because it was not an honest house!

The whole story is very improbable. The first time witness saw Isabella was when she and Blasini made a friendly visit, and Blasini, presenting Isabella to herself and her husband, said : “ I introduce you my wife;” and soon after she heard him telling her husband he was not married to her because she was colored, which, if it had been true, would have made their marriage legally impossible, and the visit an insult. After that, neither witness nor her husband had any thing to learn as to the social relations of Blasini and Isabella. The second and last time she saw Isabella was when her husband sent her, at the request of Blasini, to visit, according to her, his colored concubine, whom she found in bed, sick with grief because she was not married to the man with whom she was living, who made friendly visits with her, who introduced her as his wife; and by whom She had three children living. Her husband did not want her to visit Isabella again, because it was not an honest house, which, if it had been the fact, she and her husband knew just as well from the beginning of their acquaintance with Isabella as they could have known it afterward. The statement which she says Isabella made to her was precisely what her womanly, motherly instincts would have prompted her to keep as a sacred secret. Certainly she would not have been so ready to reveal to a stranger a fact which caused her so much distress and suffering, which would have made her an avowed concubine, and would have marked her children visibly with the ineffaceable stain of bastardy. This witness is the only one who pretends that Blasini ever said that Isabella was a colored woman ; and the evidence proves-conclusively that she was of Spanish origin, speaking Spanish as her mother tongue.

The story of the old colored concubine is equally improbable. She represents Isabella, with whom she never talked about any thing before 'or after that time, as unnecessarily and extraordinarily communicative ; 'and she makes her assign as a reason for submitting to Blasini’s ill-treatment, and for continuing to live with him, what would have been the very best reason for leaving him ; and would have enabled her to break off at any time a burdensome connection, which marriage alone would have made obligatory and permanent.

No greater importance is due to the statement said to have been made by Blasini to his friend who censured him for his conduct to his Wife. Under the influence of passion, or to excuse himself, or to escape further censure, Blasini might have said he was not married ; but such a statement could not be permitted to belie the entire history of his public cohabitation.

On other occasions, as early as 1836, at different times, under different circumstances, to his best and most intimate friends, Blasini introduced Isabella as his wife ; and he told them he had married her in Mexico. She bore-his name, was called M’me Silvestre and M’me Blasini; and in conversation with others he called her his good wife, his angel. When she died he said to his best friend, Bofill, now dead, who superintended the funeral arrangements : “ Tu iras enrégistrer la mort de ma femme.” This was said in the hearing of a witness who gives his exact words, and who saw Bofill leave to do this service. In the proper book, in the office of the Recorder of Births and Deaths, under date June 10, 1849, upon the declaration of Bofill to the Recorder, in the presence of two subscribing witnesses, her death was registered as having occurred on that day ; and it is also stated that she was a native of Mexico, aged twenty-eight years, and that she was married to Silvestre Blasini, “ her surviving consort.” The use of the pronoun "tu” by Blasini in his instructions to Bofill proves the intimacy of their relations, which is otherwise abundantly established ; and he must have learned from Blasini the particulars embodied in the mortuary registry.

On the twenty-second September, 1849, about three months after the ■death of Isabella, Blasini married Emilie Charlotte de Tily. When asked why he had married again, he said he wanted somebody to take care of his children. They were the three plaintiffs in this suit, the eldest ten, •the next four years of age, the youngest about eighteen months old. These children were presented to the newly-married wife by her husband, their father, as his children. They continued to be members of his household; and they were cared for and treated with uniform kindness by their stepmother, as one of them acknowledges and testifies. When Silvestre, Jr., sole issue of this marriage, was baptized, John, the •oldest son of the first bed, was his godfather; and it may be added, though out of the chronological order, that when Charles Louis, son of •John Blasini, was baptized, in October, 1873, Silvestre, Jr., was his godfather.

^ Erom the records of the church copies wore produced, showing that .John was baptized on the fifteenth July, 1839, as the son of Silvestre Blasini and Elizabeth Barera; and that Joseph Marie was baptized on the thirtieth June, 1842. This record is remarkable, because it must be presumed that the officiating priest learns from the father and the mother the particulars which he embodies in the registry of baptism:

“Le 30 Juin, 1842, a étó baptise Joseph Marie Blasini, nó le quatre Juin, 1842, enfant legitime de Sylvestre Blasini et Da. Isabella Barera, «on épouse.”

Why did the priest, writing in the French language, prefix to the name of the mother the title appropriate to a Spanish or Italian wife ? How dared he style the child presented for baptism “ enfant legitime,” upon any other hypothesis than that he received from the parents, at the time he performed the ceremony, the particulars of which he made permanent record ?

Equally remarkable is the registry of the death of Rosa, in which ■•she is described as the legitimate daughter of Mr. Sylvestre Blasini and of Mrs. Blasini. True, this registry was made upon the declaration of Déjoux, a near neighbor of Blasini; but it is not to be presumed that he would officiously, without the request, or at least the.knowledge and •consent of the parents, have taken the trouble and incurred the expense ■of having this registry made, which could by no possibility have benefited him.

If these records serve no other purpose, they show beyond controversy that the parents of these children were publicly reputed to be husband and wife; that they publicly assumed to be husband and wife in the most solemn acts of social life ; and that, with their knowledge and consent, their offspring were publicly reputed to be their legitimate children.

There were two daughters, Felicite Carmen, or Carmelite, as the witnesses call her, and Apolina Rose, or Rosa, as she was called, the first, born in 1836, the last in 1838. There is no proof fixing the period of the death of Carmélite; but the proof is abundant that Rosa died but a. short time before her mother, in the same year. They were both buried in the same vault, belonging to their father, in which he was afterward buried. Several years after the death of Rosa, the testimony is some, time before the war, Blasini employed a marble-cutter to place a slab on the vault, with inscriptions prepared according to his instructions. Within a short time, probably less than a month after the death of Bla■sini, the same cutter called on Widow Blasini to contract for putting a new slab on the vault. The widow, Silvestre, Jr., and his wife were-present at this interview, and there was some conversation as to what, should be done with the old slab, commemorative of the two girls. The cutter suggested that it might be broken, and used about the new work. It was finally agreed -that this should be dene; and now nothing remains to show what these inscriptions were, which testified to-the father’s love for the first fruits of his cohabitation with their mother.

A memorandum-book, which seems to have been used by Blasini, for' his private affairs, was introduced in evidence, and comes up in original. The earliest date seems to be 1863 ; and the entries are not in chronological order. It is written for the most part in Italian, though there are entries in English and in French-by different hands. Some of the writing was done by Silvestre, Jr.;' and all that is in Italian does not seem to be by the same hand, though the greater part is. Most of the writing relates to business matters. One on the last leaf, purporting to be by Blasini, dated fourth March, 1863, states that Loretto, whom the writer calls “ II mio raggazzo,” my boy, commenced work on that day for Bernard. About thirty pages from the end, after an entry of July 11, 1868, is a memorandum that “II mio figlio Silvestre” had engaged to work by the month, beginning on the second November, 1873. On the reverse of the front back of the book is a memorandum that “II mio figlio Loret” arrived from Brazil on the sixth January, 1873; and at the'foot of the same page it is related that Joseph commenced work by the month, beginning on the seventh October, 1868. About forty pages from the beginning, immediately following an entry of June 2, 1868, is a memorandum that John arrived from New York, with his wife, on the fifteenth August, 1873, and that they left for Galveston on the twenty-eighth of the same month. The proof shows that they spent the intervening fortnight at the house of Blasini, where they were received and treated as members of the family. About a dozen pages further on, following entries of October and November, 1869, on the same page, it is stated that Loretto left for New York, by steamer, on the seventeenth May, 1873.

Insignificant as these entries might otherwise be, they afford important and unmistakable evidence of the affectionate fatherly interest which Blasini continued to take in these his children, and of his continued, avowed recognition of them as his sons, for more than twenty years after the death of their mother.

After.an entry of August, 1869, near the middle of the book, are several blank pages, followed by a business memorandum of fifth January, 1867, or 1869, the last figure is not distinct. Then follows, on three consecutive pages, a statement, in Italian, said to be in the handwriting of Blasini, which purports to be the pedigree of all his children, beginning with the first, a daughter born in 1836, and ending with Silvestre, born in 1852. The writing immediately following this is dated second September, 1869. It is in different ink; and it affords no clue to the date of the pedigree. The uniformity of the writing indicates that it was all done at one sitting; and the freshness and color of the ink show that it is of recent date.

This statement is divided into as many paragraphs as there were children. Each separate paragraph relates to one child; and each purports to be signed by Silvestre Blasini, except the third and fifth. The statement is minute. It gives the day of the month and the year of the birth, the name of the mother, the name of the child, the name of Silvestre Blasini as the father, his birthplace, the names of his father and mother, the nativity of the mother described to be “ del isola di Mesicho;” and the names of the godfathers and godmothers of all except Rose, stated to have died the day after her birth, and Silvestre. It mentions the date of the baptism of one, and the church at which another one was baptized. It applies the words “ figlia di me Silvestre Blasini i di Isabell Barera” to the daughter Rose; and the words “figlio di me Silvestre Blasini i sua matre Isabell Barera” to each one of her sons; and it adds the surname Blasini to the baptismal names of two of them.

The statement with respect to Silvestre is equally minute, except that no mention is made of his baptism. Perhaps the omission was accidental; perhaps the writer did not care to say that John Blasini was the godfather. It uses the words legitimate three times: once with respect to the mother, styled “mia sposa legitima”: once with respect to the son, styled “ figlio legitimo di me;” and once with respect to the father, “ patre legitimo del mio figlio.”

It is manifest that this writing was not contemporaneous with the events to which it relates; and that the writer’s memory was at fault in several particulars. Rose, the second child, is' stated to have died on the twenty-fourth July, 1838. Independently of the official registry of her death, the proof is ample that she died in 1819. The date of the baptism of John is stated to be the eighth of July, 1839: whereas, the records of the church show that he was baptized on the fifteenth July.

There were two boys, named Joseph, or Gioseppe, one Gioseppe Maria, born fourth June, 1812, died fourth July, 1812. After minute details of his birth, parentage, and death, the words “ figlio naturalle” have been written between the date of the death and the signature, on the same line. These words seem to have been an afterthought. They evidently occurred to the mind of the writer after the paragraph was completed, apparently after the signature was written. If they had expressed the truth, their proper place would have been in the body of the paragraph, where the words “ figlio di me” are written. This same Joseph Maria is styled in the registry of baptism, in the archives of the church, “ enfant legitime de Sylvestre Blasini et de Da. Isabella Barera, son epouse.” This registry is contemporaneous history; and it can not be destroyed by the application to this child, more than twenty years after his death, of the words “ ñglio naturalle.” It is strange that the writer selected this dead child of the six children of the same bed, and applied these words to him alone. It is equally remarkable that these words should have been falsified in advance by the registry of his baptism, on the thirtieth June, 1812, five days before his death.

With respect to Loretto, the last.child of the first bed, born in 1818, the writer could not recall the date of his birth: so, at the head of the paragraph relating to him he gives the date “ alii 13, o 18, o 20 del Mese di Genaro.” That is, when he was writing this paragraph he did not know whether this child was born on the thirteenth, or the eighteenth, or the twentieth of the month. Was it the father of the child who was thus forgetful? Would the father have set down deliberately, with the honest intention of writing a true and faithful pedigree of his children, without first having assured himself of all the particulars, and refreshing his memory when he found it defective ?

The evidence shows that John Blasini was a wild boy; and as he approached manhood he gave his father great trouble, caused him much expense, and incurred his serious displeasure. About this time, influenced by his partiality for Silvestre, and to some extent by his feelings toward John and his brothers, all of whom he characterized as had boys, according to the witnesses, Blasini determined to dispose of his entire property to their exclusion. Accordingly, in 1859, he made his last and only will, in which there is no reference to a former marriage, nor to any offspring except Silvestre, whom he describes, not as his only child, but as the only child of his marriage with Emilie Charlotte de Tily. The language of the will is: “Je suis marie h dame Emilie Charlotte de Tily, et n’ai qu’un enfant de mon dit mariage, nomine Sylvestre Blasini.”

He did not, at any time, inform the children of Isabella that there was any question of their legitimacy; but he did tell Dr. Lemonnier, and other respectable persons, after the birth of Silvestre, that he had not married Isabella, and that his children by her were illegitimate. He knew that his will could not be maintained if his children by her were held to be legitimate; and his disparaging and unnatural statements, perhaps the use of the words “ figlio naturalle” in his memorandum-book, with respect to the dead child, and the superabundant use of the word legitimate in the pedigree of Silvestre, may be attributable to the settled determination to have the will maintained for the benefit of Silvestre, on whom his father relied, as he told one of the witnesses, to support the honor of his name and family.

By our law, marriage is a civil contract. The most important of all contracts, it is meet, it is decent, that it should be celebrated with such publicity and with such solemnities as would leave no defect of proof that the parties were able to contract, that they were willing to contract, that they actually did contract. The presence of the civil magistrate or the minister of religion, and of kindred and friends, is eminently proper; and the license gives assurance of the absence of all legal obstacles. But the law does not require written evidence of the marriage, nor the testimony of those who were present and witnessed the ceremony; nor does it avoid the contract for want of a license.

In many cases it would be a cruelty to require positive proof of actual marriage. Especially would this be unreasonable and oppressive where, as in this case, the reputed marriage is said to have taken place in a foreign land: where both the parties are dead; and where their offspring, about whose actual filiation and descent there never was the vestige of a doubt, do not know in what part of that foreign land the marriage may have been solemnized.

The law will not tolerate the presumption that a man and a woman who live together, publicly, as husband and wife, are really living in concubinage in violation of the law and of public decency. From certain established facts certain legal presumptions are deduced; and where it is proven, as in this case, that the parties from the time of their first appearing together in the community in which they made their permanent domicile, publicly cohabited, assuming to be husband and wife, without separation or interruption until death intervened: that the woman bore the man’s name, and he called her his wife, and introduced her as his wife, and declared that he had married her in the land < f her birth: where they present their offspring to the world as their children, give them the surname of the father, have them baptized as their children, and rear, and care for, and educate them as such, the law accords to the man and the woman and to their children a legal and social status, based upon the presumption of marriage, the consequence of which is the presumption of legitimate filiation and descent, which imposes on those who assert the contrary the burden of destroying that presumption. It is not going too far to say that the entire conduct of Blasini and Isabella created, in favor of their children, a presumption of legitimate descent, which could be destroyed only by proof that they were not actually married, or that there was some legal impediment by reason of which their marriage was legally impossible.

This presumption does not sanction voluntary cohabitation, nor elevate concubinage, of whatever duration, to the dignity of marriage. When it is said that marriage may be proven by reputation, the meaning is that the acts and conduct of the parties, as established by satisfactory proof, authorize and create the presumption that they were actually married, with all the formalities required to constitute a valid marriage by the law of the place at which it is reputed to have been solemnized : and this presumption is such that it yields only to proof that there was no such marriage, or that it was void because of some nullity established by law.

If a man or woman so circumstanced, to gratify some whim or caprice, or to accomplish some settled purpose, should deny the reputed marriage, a moral estoppel would intervene, and forbid the falsifying of their acts and conduct by such denial.

During the entire cohabitation of Blasini and Isabella they were apparently living in the observance of the obligations of the contract of marriage; and their acts and conduct are not compatible with any other theory than that they were actually married, in Mexico, before Isabella came to New Orleans. We must, therefore, regard the plaintiffs as their legitimate children, and forced heirs of their father, Silvestre Blasini. As suph, they are entitled to participate equally with their paternal brother, Silvestre Blasini, Jr., in that portion of the succession of their father, the two thirds, which he was forbidden by law to dispose of by will to their prejudice. .

That part of the judgment of the district court which awarded to Widow Blasini the one half is not before us for review. Upon the hypothesis that it is correct, the other half constitutes the succession of Silvestre Blasini. Whatever the succession of Silvestre Blasini may be, Silvestre Blasini, Jr., is entitled to one third of it, under and subject to the conditions of the will. The remaining two thirds will be divided equally between the three plaintiffs and Silvestre, giving to each one fourth of these two thirds. This is the extent and' effect of the judgment of the district court, as restricted by the remittitur and the judgment refusing a new trial, and no amendment is necessary.

The judgment appealed from is therefore affirmed with costs.

Rehearing refused.


text:
    No. 7216.
    Philip Werlein vs. Merchants’ Mutual Insurance Company.
    Where the value of a certain piece of property, specifically insured for that value, is less than $500, this court is without jurisdiction of a suit to recover the value, even though the property was insured under a general policy which embraced other objects aggregating in value much more than $500.
    j^PPEAL from the Fifth District Court, parish of Orleans. JRogers, J.

      Merrick, Hace & Foster for plaintiff and appellee.

      A. & W. Voorhies for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

Philip Werlein brought suit against M. E. Wheyland to recover $345, with interest, being balance due for a piano; and by sequestration and attachment and garnishment, he caused to be seized, in the hands of the Merchants’ Mutual Insurance Company “the insurance money of a certain piano upon which plaintiff had a vendor’s lien and privilege amounting to $345, interest, etc.,” which piano, it was alleged, was insured by the company for $400, and was lost by fire.

The company in answer to interrogatories denied indebtedness to -the defendant; and exhibited a policy in her name, on household furniture, for $1800; on a piano for $400; on a sewing-machine for $50; and on two mirrors for $75 each, in all $2400.

The suit resulted in a judgment in favor of plaintiff for $345, with legal interest from seventh July, 1874, till paid, and costs of suit, with privilege on the property attached and sequestered. The plaintiff then took a rule on the garnishee, the Merchants’ Mutual Insurance Company, to show cause why the $400, amount of insurance money on the piano, should not be deposited in court, and judgment rendered against the company as garnishees for the amount of the debt, interest, and •costs. The district judge decided that the rule to show cause was not the proper proceeding to determine the liability of a garnishee whose answers deny liability; and he dismissed the rule, reserving to plaintiff the right to proceed otherwise, and according to law, against the company.

Thereupon this suit was brought by Werlein against the Merchants’ Mutual Insurance Company to recover the amount of the judgment in his favor against Wheyland. From the judgment in favor of plaintiff -the company appealed; and plaintiff, appellee, now moves to dismiss -the appeal for want of jurisdiction, because the amount in dispute is less "than $500.

There is no question here about the correctness and finality of the judgment against Wheyland; nor is there any dispute as to the fact that the amount of the judgment against the company, including interest and costs, is less than $500; but the company, appellant, maintains-that the contract of insurance is indivisible, for the whole amount, $2400 p and that the matter in dispute is the liability of the company on this entire contract.

The evidence does not support this theory. Under this policy there was separate insurance on household furniture, not otherwise designated ; on the piano, on the sewing-machine, and on the mirrors, at separate valuations, the whole aggregating the amount insured, $2400-Now, all the household furniture might have been saved, and the piano and other articles might have been lost: or all might have been saved except the piano. So far as Werlein is concerned, he had seized in the-original suit, by attachment and sequestration, nothing more, nothing-less, than the insurance money on the piano, valued at $400 ; and the judgment gave him a privilege on nothing more, nothing less, than the $400 insurance money on the piano.

The basis of the present suit is the liability of the company, by reason of the judgment in the original suit, with privilege on the $400-insurance money on the piano; and although it may be true that the same causes which would make the company liable for the loss of the piano would make it liable for the loss of all the other property covered by the policy, Werlein had nothing to do with the liability of the company for any thing more, nor for any thing less, than the $400 insured-on the piano specifically.

In defending this suit, the company might have alleged causes which would have exonerated it from liability for any loss whatever under the-policy; but there could have been no judgment in this suit which would have been conclusive in favor of the company or against the company upon any other question or issue than liability for the loss of the piano-If the district court had determined that the company was not liable,, for any cause, for the loss of the piano, that judgment would have been res adjudicata against Werlein: but it would not have concluded the assured, if she had brought suit on the policy to recover for the loss of' the other property insured.

It frequently happens that the debtor, of whom his creditor claims-a large amount, is garnisheed for a small part only of that amount: and that, if he is liable for the small amount seized in his hands, he would bo liable for the whole amount claimed under the same contract or dealing ; but this is no obstacle to the enforcement, by garnishment, of liability for the smaller amount; nor are any parties concluded by the judgment on the garnishment except the parties to the suit, to the extent of the demand.

The amount in dispute, so far as they are concerned, is the debt which the seizing creditor seeks to enforce against the seized, debtor and whether the appellate tribunal would have jurisdiction of the controversy is a question wholly dependent upon the amount which the-garnishee could be compelled to pay upon the judgment.

It may be very inconvenient for the insurance company in this case,, it may be inconvenient for garnishees in many cases, to litigate with different persons the question of liability for portions of a larger alleged-indebtedness; but, after all, such inconvenience determines nothing with respect to the amount in dispute in any such case ; and the only criterion is: What amount would discharge the liability which the seizing-creditor seeks to enforce against the garnishee? If the answer be, a. sum exceeding $500, that is the amount in dispute; and appellate jurisdiction attaches; if the answer be, a sum less than $500, that is the-amount in dispute ; and appellate jurisdiction does not attach.

The amount in dispute in this case is the sum of money which-Philip Werlein demands of the Merchants’ Mutual Insurance Company* That dispute is exclusively between Philip Werlein and the insurance-company ; and as the amount demanded is confessedly less than $500,. this court is without jurisdiction.

The motion, therefore, must prevail; and the appeal is dismissed, with costs.


author: Spencer, J.

text:
    No. 6823.
    E. B. Benton vs. T. C. Mahan et al. Chism & Boyd, Intervenors.
    Money and goods advanced by a factor to a planter and used in paying the laborers^ who make the crop constitute privileged debts on the crop.
    Disbursements made through the sheriffs by order of court, to gather, manufacture- and ship the crops on a plantation in the keeping of the sheriff, are debts incurred for the preservation of the crops, and therefore privileged.
    j^PPEAL from the Fifth District Court, parish of Orleans. Sogers, J...

      T. A. Bartlette for plaintiff and appellant.

      Singleton & Browne for intervenors and appellees.
   The opinion of the court was delivered by

Spencer, J.

Thomas Ong having a lease of a sugar plantation in> St. Bernard, applied to Chism & Boyd, commission merchants of New Orleans, for advances to enable him to make, gather, and manufacture' his crop for year 1876. Chism & Boyd agreed to advance in money,, goods, and necessary supplies for that purpose to amount of $7700, including interest, commissions, etc. A formal contract was drawn and' signed by the parties, in which Ong granted, in addition to the privilege-existing by law, a special pawn and pledge on the crops, under the pro— visions of act No. 06 of 1874. This act of pledge was passed April 27, 1876, and duly recorded. On 21st June, 1876, the sheriff under execution in Benton vs. Mahan, seized all the rights of Ong in and to said lease, growing crop, stock, implements, etc. At this time Chism & Boyd had advanced Ong nearly $5000 in money, goods, etc.

Ong enjoined the sale under said writ, and Chism & Boyd continued to advance money, goods, and supplies for carrying on the place.

We find in the record an admission that Chism & Boyd’s “ disbursements made to Thos. Ong, the defendant in execution, for the purpose •of making the crops, did, on the fourth of December, 1876, amount to the sum of..........................................'......$14,082 04

’That Chism & Boyd paid upon the order of the sheriff, expenses incurred in making the crop, the sum of.............. 9,856 23

'That the balance due Chism & Boyd on the rent claim transferred to them by the lessor of Thomas Ong, to whose liens and privileges they were subrogated, amounted to the sum of..................................................... 3,441 55

'That the costs of court amount to......................... 416 55

$27,796 37”

It seems that on twenty-third December, 1876, an order was ren•dered by the court directing and authorizing Chism & Boyd to make «uch advances to the sheriff as would enable him to take off the crop, •and ordering the crop to be shipped to them for sale — proceeds to be held subject to further order of court. It is, as shown above, admitted •that under this order they'advanced $9856 23. The crops were received ;and sold by Chism & Boyd, and realized $20,894 63. The controversy before us is over the distribution of these proceeds.

Under the written admission of the parties above quoted, we see but little room for controversy.

It is admitted that Chism & Boyd up to fourth December advanced for the purpose of making the crop $14,082 04. They had bound themselves to advance up to $7700, and very naturally sought to save thern,-selves by further advances. It is unnecessary for us to decide whether they have a privilege for the excess of their advances over $7700. To that amount they were bound to advance, and to that amount they had beyond doubt a privilege under their contract. The evidence, aside •from said admission, satisfies us that far more than $7700 of their said advances were actually used in making the crop. It matters not under the act of 1874 whether the advances were in money, goods, or provisions. If the money and goods advanced be used in paying laborers who make the crop, they are privileged under the act of 1874, as much iso as provisions consumed by them.

As regards the disbursements through the sheriff, by order of court, to gather, manufacture, and ship the crops, they are expenses incurred for the preservation of the thing seized.

The claim of the lessor is also a privilege, as are the court costs.

Stating the account therefore on the above basis, we have—

Amount advanced and expended under the contract of pledge $7,700 00

Amount disbursed by sheriff and paid by Chism & Boyd for gathering and making crops............................. 9,856 23

Amount balance due lessor................................ 3,441 55

Amount court costs....................................... 416 55

Making total of....................................... $21,414 33

■due Chism & Boyd.

We have seen that the proceeds of the crops amounted only to $20,894 63, a sum insufficient to pay the preferred claims of Chism & Boyd.

The judgment appealed from so decreed. It is correct, and is affirmed with costs.

Rehearing refused.


text:
    No. 6946.
    Parish of Plaquemines vs. John Bowman.
    The police jury oí a parish have authority to impose any license tax they may see fit to impose on trading boats trading within the parish.
    A PPEAL from the Parish Court of Plaquemines. O’Donnell, J.

      B. T. Beauregard, Parish Attorney, for plaintiff and appellee.

      A. B. Phillips for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The only question presented to us is whether it is lawful and constitutional for the police jury of Plaquemines to lay and collect a license of $300 from the defendant who is engaged in running a ■“ trading-boat” therein. It appears that the State license therefor is only $100. It is contended that the parish license can not exceed that sum.

Section 2743 R. S. provides that the police juries shall have power ■“ to impose whatever parish tax they may see fit on all keepers of billiard-tables and grog-shops, and on all hawkers, peddlers, and trading boats.”

We think it well settled that this provision is not in conflict with art. 118 of the constitution, which we have held does not prevent the Legislature from imposing different license taxes on different classes and occupations. City vs. Kauffman, 29 An. 283; State vs. Rolle, 30 An. 991.

Has said section been repealed or modified by subsequent legislation? The only provision restricting the police jury’s power is foundi in act No. 17 of 1872, sec. 1, par. 91, and reads as follows:

“Nor shall the police jury of any parish levy a tax for any parish, purposes, except to pay indebtedness incurred prior to the passage of this act, during any year, which shall exceed one hundred per centum of the State tax for that year, unless such excess, whether levied by-village, city,' or parochial authorities, shall first be sanctioned by a vote-of the majority of the said voters of said village, city, or parish, at an election held for that purpose.”

It is manifest, we think, that this act refers to the taxation of property, and not to the imposition of licenses on trades, occupations, and professions. But whether this be so or not, this general statute can not be held to repeal by implication the special and exceptional provision of sec. 2743 of the Revised Statutes, relative to keepers of “ billiard-tables, grog-shops, peddlers, hawkers, and trading-boats.” The Legislature of this State has for many years abandoned the government of this class of occupations to the discretion in great measure of the local municipal authorities. It has doubtless done so with a view to the better policeing thereof, and in the interest of the good order of society.

Whether it is wise, expedient, and just to thus subject classes of occupations to local control, is a question for the legislative department, and one with which courts have nothing to do.

We think the judgment appealed from is correct, and it is affirmed with costs.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 5168.
    Charles Maduel, Executor, et al. vs. Jules Tuyes et al.
    An action of revendieation of an immovable may be brought where the defendant resides, or where the property is situated.
    A suit for the rents of the immovable involved in an action of revendieation is properly brought where the property is situated.
    A demand for the revendieation of a certain property, and an alternative demand for its value, in ease the defendants have incumbered it with obligations beyond its value, may be cumulated in the same suit.
    ^^PPEAL from the Fifth District Court, parish of Orleans. Cullom, J-

      George L. Bright'iov plaintiffs and appellants.

      Sambola & Ducros for defendant and appellee, Fernandez.
   The opinion of the court was delivered by

DeBlanc, J.

This suit was brought, in the Fifth District Court for the parish of Orleans, by the executor of J. M. Caballero’s will, and by Mrs. Conte, the daughter of said deceased, to recover from defendants who all reside in this city, except J. A. Fernandez y Loneros, whose •domicil is admitted to be in the parish of St. Bernard, an improved lot of ground situated within the limits of New Orleans, the apparent title to which stands in the name of y Loneros, and is assailed in this suit as •a simulation concocted by him and two of the other defendants.

To this extent, plaintiffs’ action is one in revendication and could— at their choice — have been brought either in the parish of Orleans or that of St. Bernard. This is indisputable.

O. P. 163.

Of the plaintiffs’ moneyed demands, the first — that for rents — is, in •substance, one for damages, which Mrs. Conte conceives that she has •■suffered, on account of y Loneros’ alleged trespass on the real estate which she claims by inheritance from Caballero, and those damages are fixed at an amount which she and the executor presumed to be equal to •the revenues which the property would have yielded since she has been deprived of its possession. That demand was properly brought before the judge of the place where the revendicated property is situated.

C. P. 165, No. 8.

As to those revenues, their action is but an incident to the main action; the action to recover the property, and its branch — that to recover its revenues, are nearly as closely linked and germane to one another, as a demand for the principal of a debt and the interest which has accrued on that principal. In this instance, the incidental demand Is — not only not contrary to nor exclusive of the main one — but arises from the very act which produces the latter.

The last of plaintiff’s demands — that for the value of the property, In ease it be ascertained that defendants — taking advantage of their concocted simulation — have so encumbered the property that its recovery in kind would amount to its loss — is not inconsistent with the others. They ask the property itself, as they allege it was before the simulation, free of incumbrances — or its value, if defendants have burdened it with Tights which may be enforced against it and exceed its value.

These different demands could be and were properly cumulated.

15 A. 293 — C. P. 7-151 — 4 A. 28 — 6 R. R. 468.

It is, therefore, ordered, adjudged and decreed that the judgment •appealed from is annulled, avoided and reversed, and this case remanded to the lower court, to be proceeded with according to the views herein expressed and according to law: the costs of this appeal to be paid by defendants.