text:
    No. 2846.
    Given, Watts & Co. and E. E. Norton and J. J. Tarleton, assignees, v. G. M. Alexander & Co. Richeson, Able & Co., intervenors.
    A commercial firm can not satisfy the remainder of their claims of 1866 for moneys and other supplies furnished to an agricultural firm, out of the proceeds of the crop of 1867, to the prejudice of another commercial firm who made all their advances in that year, and in •whose possession part of the crop has been put by consignment and under a regular bill •of lading before the issuing of a writ of sequestration.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux & Fenner and Given Campbell, for plaintiffs and appellants.

      Base, Foster c& Merrielc, for defendants and appellees, and George W. Baee, curator ad hoc, also for appellees.
    Justices concurring : Taliaferro, Howell, Wyly, Kennard.
   Kennard, J.

The proceeds of one hundred and eighty-four (184) bales of cotton are in dispute in this case

The plaintiffs, E. E. Norton et al., assignees of Given, Watts & Co., bankrupts, claim a superior privilege to Richeson, Able So Co., intervenors, upon these proceeds, which amount to the stun of ten thousand nine hundred and iorty-nine dollars and eighty-eight cents ($10,949 88). The respective claims of plaintiffs and defendants exceed the amount of the fund in question, so that we have only to determine the superior right to the whole. A careiul review of the facts show that plaintiffs, Given, Watts & Co., a commercial firm residing and doing a cotton factorage business in New Orleans, opened dealings with G. M. Alexander & Co., an agricultural firm, composed of G. M. Alexander and Frank Blair, engaged in cultivating the Marshall plantation, near Milliken’s bend, in the State of Louisiana, in the year 1866.

The “ account B 2,” shows that the first outlay by plaintiffs for account of defendants, Alexander & Co., was on April 18, 1866, and the last was July 14, 1867.

There appears in this account under date of November 15, 1866, the following entry:

“ To paid account with Watts, Crane & Co., N. Y., thirty thousand .eight hundred and thirteen dollars and eighty-eight cents ($30,813 88).”

By reference to the record, the agreement to make this payment appears to have been made as early as March, 1866, previous to the .actual opening of the account in April, 1866.

The following telegram with the explanatory testimony leaves no .doubt of this:

Telegram No. 10.
“ The Western Union Telegraph Company, March 19, 1866.
■“ To Given, Watts & Co., New Orleans, La.
“ Liverpool seventh, nineteen firm, Courtney selling freely. Gold twenty-eight halts. Frank Blair with George Alexander cultivating three thousand acres, will want along thirty thousand dollars. Is it your interest to furnish ? WATTS, CRANE & CO.”

Watts, Crane & Co. are shown to have been doing business in New York, and after the date of this telegram, to have transferred their business with G. M. Alexander & Co. to Given, Watts & Co., of New Orleans, and Given, Watts & Co. paid them the amount due at the time of the transfer by G. M. Alexander & Co., to wit, the sum of $30,813 88. The assumption of this debt was in March, 1866; the-actual payment November 15, 1866.

There is no evidence in the record to show satisfactorily of what-items this large indebtedness was composed.

H. F. Given, the head of the New Orleans firm, is unable to swear how this debt to Watts, Crane & Co. originated. The plaintiffs claim in their petition the sum of $39,974 45, as shown per “ account A,” but it appears from the testimony of J. J. Tarleton (R. p. 93), one of the plaintiffs and assignees, that this account includes some $12,000 worth •of drafts, accepted by Given, Watts & Co. but not paid; so that thereat debt due Given, Watts & Co. by G. M. Alexander & Co., is correctly stated in account B 2,” at $24,646 70 on March 1, 1868.

It thus appears that the amount of the indebtedness to Given, Watts & Co. by G. M. Alexander & Co., at the close of their dealings, was aboutfour thousand dollars less than the amount assumed by them from Watts, Crane & Co., at the date of the opening of their first dealings-

In other words, G. M. Alexander & Co. have paid all other debts-except this assumption, and have paid some four thousand dollars on account of it.

Under this state of facts can they prevail over the intervenors, Richeson, Able & Co., who were in possession of the one hundred and eighty-four bales of cotton, through their agents in this city, Garrard & Craig, to whom it had been consigned and regularly delivered.

These bales belonged to the crop of 1867.

Richeson, Able & Co., of St. Louis, had advanced $18,402 41 of money and supplies to assist in making said crop.

Given, Watts & Co., and their successors, Given, Brown & Co., had also advanced in the year 1867 several thousand dollars, which were refunded by payments made in that year.

The credit side of “account B 2” shows under dates January 14,. 1867, receipt of proceeds draft due twenty-sixth May, $4755 27, and under July 14, proceeds draft due November 24, $5647 86, making an aggregate of $10,403 13, received in 1867 by the collection of these two drafts, which belong properly, as shown by the evidence, to the payments of 1866, thus reducing the payments that properly belong to 1867, from $20,030 80 to the sum of $9627 67. The amount in value of supplies furnished by Given, Watts & Co. and Given, Brown & Co., in 1867, was only $9447 45, being $180 22 less than the amount received in that year from Alexander & Co., after passing the two drafts-to the credit of the account of 1866.

The naked question then is, shall plaintiffs satisfy the remainder of their debt of 1866 out of the proceeds of the crop of 1867, to the prejudice of Richeson, Able & Co., the intervenors, who made all their advances in 1867 ?

C. C. article 2166, [2162] provides. “When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging of those that are equally due.”

Applying this rule to the various payments, whether in 1866 or 1867' on the account of 1866, the first imputations must be to the payment of all items of the account of 1866 before the item of $30,813 88, assumed by Given, Watts & Co., transferred to them from Watts, Crane & Co., New York. The proof is not such as to entitle this item to any privilege whatever.

The balance due being part of this item is entitled to no privilege.

This conclusion dispenses with an investigation of the various accounts and bills of exceptions. Also, makes it unnecessary to decide-whether Richeson Able & Co., residents of St. Louis, are entitled to a privilege on the crop under our law.

They were in possession under regular bills of lading before the-sequestration issued.

Judgment affirmed.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 4424.
    State of Louisiana ex rel. R. C. Richardson v. James Graham, State Auditor.
    The act Ko. 6 of 1870, entitled “An Act to regulate public education in the State of Louisiana and city of Ttfew Orleans and raise a revenue for that purpose,” authorizes the removal of the division superintendents upon certain contingencies, and the mere fact of plaintiff’s removal is presumptive evidence that it was made for a proper cause. It was incumbent on him to show that the removal was without cause or not in conformity with existing laws.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      B. Stewart Dennee, for relator and appellee.

      Days & New, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell and Wyly.
   Howell, J.

On the twenty-ninth of March, 1870, the relator was appointed Division Superintendent of Education, first division, in pursuance of the third section of act No. 6 of 1870, entitled “An Act. to regulate public education in tbe State of Louisiana and city of New Orleans and raise a revenue for that purpose.” His term of office was three years, and salary $2500, payable quarterly upon his own warrant. This proceeding was instituted on the twenty-first of September, 1872, to compel the State Auditor tó issue to him a warrant on the State Treasurer for $1770 55, for amount of salary from the first •of December, 1871, to the thirty-first of August, 1872, and |rom a judgment making the mandamus peremptory this appeal is taken.

The above act which created the office authorized tbe removal of the ■division superintendents upon certain contingencies, and the mere fact ■of relator’s removal, which is admitted, is presumptive evidence that it was made for a proper cause. See the case of Desbree v. Voss, 19 An. 210, and Vincent v. Populus, Opinion Book 37, p. 584. It was incumbent on and in the power of relator to show that the removal was without cause or not in conformity to law. This has not been done. In the cases cited by the relator, provision was not made for the removal as was effected, or no proof of a removal was adduced, and they are therefore not applicable to this case.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant rejecting the application, with costs in both courts.


author: Ludeling, C. J.

text:
    No. 3688.
    Samuel McClelland v. The New Orleans Sugar Shed Company.
    Where the court is without jurisdiction ratione materia* to try a case, it must notice this fact of its own accord, and the appeal will "bo dismissed. Cons. art. 71.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Ootton & Levy, for plaintiff and appellant.

      Semmes & Mott, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell and Wyly.
   Ludeling, C. J.

The material allegations of (he petition are, that the plaintiff bought fourteen hogsheads of sugar, deposited under the sheds of the defendant, and which were worth $ 1700, and that he notified the defendant that he would not pay certain charges which the company was in the habit of making. That notice was given by the following letter:

“New Orleans, July 18, 1871.
Jules Blanc, Esq., President of New Orleans Sugar Shed Company:
Dear Sir
This is to notify you, as President of the New Orleans Sugar Shed Company, that I have purchased from Robert Carey fourteen hogsheads of sugar marked Magqolia, and in shed D, and I herewith tender you the sum of two dollars and ten cents, being the sum due the company for the transfer charges on same, and as amount authorized by charter. And I now wish said sugars, as well as all other lots which I may acquire from time to time in due course of business, to remain under cover until disposed of by me, free of any and all other charges than those prescribed by the second section of the ordinance of the City Council of New Orleans, under which you derive authority.. And I do moreover notify you as president of said company, that you are not to insure said sugar, and I do not wish the company to place any watchman over this or any other sugar I have ©r may have hereafter under any sheds of said company. And further do I notify you to cause no expense for labor on removing said sugars, ©r any other sugars that I may have stored in said sheds. And you are hereby specially notified thfit I will not pay the illegal charges of forty ■eents per month for storing, watching, keeping, or labor on said sugars or any other sugars or molasses which I may have covered in said sheds, all of which you will please take notice.
Yours Respectfully,
samuel McClelland. ”

The petitioner goes on to recite, that subsequently he sent for a part of the sugar, which he was not permitted to remove without paying the charge of forty cents per hogshead — that the conduct of the company is ruinous to the business of the plaintiff, who is “a merchant and trader ” —that the privilege granted by the city to the company is injurious to the vested rights of petitioner and others engaged in business, and that the damages caused by the oppressive and wrongful acts of the company up to date exceed ten thousand dollars, and if ■continued will break up the business of the petitioner. He prays for •an injunction ‘‘commanding the company to deliver to him fourteen-hogsheads of sugar, free from the charges of forty cents per hogshead, ¡and restraining the company from demanding or claiming from the plaintiff on any sugars or molasses he may in future acquire, or have •or place under said sheds, the forty cents per month per hogshead and ten cents per month per barrel of sugar or molasses.”

He further prays to have the resolution of said company, fixing the said tariff, declared null and void, and to have the fourteen hogsheads of sugar delivered to him free of charge for storage, and to have the company “forever restrained from asserting a claim for any storage, labor, watching, or insurance on sugar and molasses, which petitioner may acquire or place under said sheds in future, as it contends for under resolution aforesaid. And, in default of said sugar being delivered as prayed for, that your petitioner recover judgment for the value thereof, $1700, with interest from twenty-fifth July, 1871, (reserving his right to sue for damages in a direct action) and that the injunction be made perpetual, etc.”

The answer contains a general denial; it admits the letter annexed to the petition was written to defendant, and it avers that on the reception thereof, the company notified the plaintiff to remove his sugar from their shed and custody, if he was not willing to pay the usual tariff.

The gravamen of the plaintiff’s complaint is that the defendant exacts illegal charges on the sugar and molasses deposited under its sheds.

The sum of these exactions on the fourteen hogsheads of sugar belonging to the plaintiff (admitting them to be illegal) did not exceed five dollars and sixty cents. And that is the only amount in dispute in this suit. The defendant admits the sugar belongs to plaintiff, and he requested the plaintiff to take it away if he was not willing to pay the customary charges. We are of the opinion, therefore, that this court is without jurisdiction ratione material to try this case, and we must notice this fact of our own accord. Constitution, article 74.

It is therefore ordered that the appeal be dismissed with costs.


author: Taliaferro, J.

text:
    No. 3837.
    Francois Aug. Chavanne v. Jacques Frizola.
    "Where tlio plaintiff claims property by inheritance as sole lieir of his father and appends to his petition an order of the proper court recognizing him as such, and decreeing that he be put in possession of his father’s estate, and where he alleges that his father had a just and legal title to the property at the time of his decease and was in possession at that time: Held — That the allegations are sufficiently clear to enable him to maintain his action, and that an exception to plaintiff’s petition on the ground of its vagueness and failure to set out the title under which he claims can not be maintained.
    It is for him to make out his case by sufficient evidence which the defendant is free to resist when presented.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      8. Belden, B. K. Washington and Seymour B. 8naer, for plaintiff and appellant.
    O. Brouet and E. Bermudez, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell and Kennard.
   Taliaferro, J.

The plaintiff appeals from a judgment rejecting his demand in a petitory action brought by him against the.defendant.

An exception was taken by the latter to the petition of the plaintiff on the ground of its vagueness and failure to set out the date and origin of his father’s title, under which he claims the property in question. The exception was sustained and the plaintiff has appealed.

The plaintiff claims by inheritance as sole heir of his father, and appends to his petition an order of the proper court recognizing him as such and decreeing that he be put in possession of his father’s estate. He alleges that his father had a just and legal title to the property at the time of his decease, and was in possession at that time.

We think the allegations sufficiently clear to enable him to maintain his action. It is for him to make out his case by sufficient evidence, which the defendant is free to resist when it is presented.

For these reasons it is ordered that the judgment of the lower court be annulled and reversed. It is further ordered that the case be remanded to the court a qua to be proceeded with according to law. The defendant and appellee paying costs of this appeal.

Rehearing refused.


author: Taliaeerro, J.

text:
    No. 2880.
    Waterhouse, Pearl & Co. v. Citizens’ Bank of Louisiana.
    Where a "bank, acting as agent for collecting certain drafts, took Confederate money on the ground that there was at the time no other currency to be had in New Orleans or in any other part of the Southern Confederacy;
    Held — That the bank should have collected the drafts in lawful currency, and that if this was impossible, it should have given notice thereof to the principal, or should show that the collection was in that currency and approved by him.

      APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Ootton & Levy, for plaintiffs and appellees.

      Armand Pitot, for defendants and appellants.
    Justices concurring : Taliaferro, Wyly and Kennard.
   Taliaeerro, J.

The plaintiffs as holders of a draft for $8000 and interest, drawn in their favor by the Ocoe Bank of Cleveland, Tennessee, upon the Citizens’ Bank of New Orleans, institute this suit to recover the amount so claimed.

The defendants set up several grounds of defense: That the col-

lection of certain drafts by them on account of the Ocoe Bank in 1862, forming the basis of this demand, was made in Confederate money to the knowledge of the Ocoe Bank, there being at that time no other currency in New Orleans as well as in all other places then under Confederate authority. That the president of the Ocoe Bank was fully cognizant of those facts and made no objections to the collection of the drafts on account of that bank in Confederate money. That this Confederate money, so collected by the Citizens’ Bank, was taken from defendants by a military order, and therefore they are not accountable for it. They plead as a peremptory exception that the transactions between them and the Ocoe Bank were null and void, having taken place in violation of a prohibitory law — the parties to these transactions being at the time, one of them within the Federal the other within the Confederate lines.

The defendants contend that Waterhouse, Pearl & Co., who sue upon the draft of the Ocoe Bank, could acquire no greater rights than that bank possessed; that they took the draft with knowledge of the equities existing in favor of the defendants.

There was judgment in favor of the plaintiffs and defendants have appealed.

We think the defense fails. The defendants were agents of the Ocoe Bank and bound to collect their drafts in lawful currency. If that was impossible they should have given notice of that fact to their principals. We do not find it established by proof that the Ocoe Bank knew-that its drafts had been collected in the so-called Confederate currency or that the collection made in that currency was approved by it. Neither is it made out by proof that at the time of the transactions-between the Ocoe Bank and the Citizens’ Bank the former was within Federal lines and the latter within those of the Confederacy.

It is therefore ordered that the judgment of the district court be-affirmed with costs.

Rehearing refused.


author: Kennakd, J.

text:
    No. 2538.
    Sampson Brothers v. Kate Townsend.
    In tliis oase the defendant resisted the payment of articles of furniture which -she admitted to have bought, on the ground that they had been sold, delivered and put up by plaintiffs''' ' father under whom they claimed, for the express purpose of enabling her to fit up and keep a house of prostitution, which transaction she alleged to be reprobated by law, contrary to good morals and therefore of a nature not to be enforced by the court.
    Held — That the defendant could not be permitted to avoid the payment of a debt by pleading her own infamy, for reasons assigned in a similar case lately decided, Hubbard v. Mooro,24 An. p. 591.
    APPEAL from the Sixth District Court, Parish of Orleans. Oooley, J.

      Breaux & Fenner, for plaintiffs and appellants.

      L. Madison Bay,. for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Kcnnard.
   Kennakd, J.

This case is similar to that of Joseph B. Hubbard v. Susan D. Moore, lately decided by this court. The defendant seeks to avoid payment of a debt by pleading her own infamy. Furniture was bought and several installments paid on the debt. She wishes now to pay the balance by lending her aid to the elevation of the morals of the community, and invokes the maxim contra bonos mores.

To permit her to succeed by using a good maxim in so bad a cause would not in our opinion work good to the morals of the community, certainly not to defendants. Much refinement was indulged in in argument on the broad question.

The interests of society are better subserved by adhering to plain well defined rules of bargain and sale. To desert these upon the plea . of elevating morals, when the means used open wide the door for other evils is at least an experiment which courts should be slow to-make. We prefer to leave the correction of the evil to the legislative-branch of the government.

For the reasons assigned in Hubbard v. Moore and the above, it is-ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that Sampson Brothers do have and recover judgment against Kate Townsend for the sum of thirty-one hundred and forty-seven dollars and fifty cents, together with interest, as prayed for in plaintiffs’ petition, with privilege upon the property sequestered.

Rehearing refused.


text:
    No. 2626.
    J. Cadillon v. Joseph Rodriguez and J. C. Coleman.
    Where a notary stated in his certificate that the notice of protest was served at the residence' of the indorser in the hands of his wife, and it appears by the indorser’s testimony that-he received the notice, a mistake as to the name of a street in designating the locality for the residence, will not be held fatal.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Saucier and Michinard, for plaintiff and appellant-

      McOloin & Kleinpeter, for Coleman, defendant and appellee.
    Justices concurring: Ludeling, Howell, Kennard and Taliaferro.
   Ludeling, C. J.

This suit is against the maker and the indorser of a promissory note. There was judgment against the maker for the-amount claimed and a judgment of nonsuit as to the indorser.

The only question for decision is whether or not the indorser was-duly notified of the non-payment of the note? The certificate of the notary states that notice of the protest of the note was given to the indorser by a letter, etc., “served in the following manner: Mr. J. C. Coleman, at New Orleans, which letter my deputy, Mr. G-eorge G-runault, has this day served at the residence of said Coleman, corner of Felicity and Annunciation streets, in the hands of his wife.”

It is contended that because the certificate states that the residence of Coleman is at the corner of Felicity and Annunciation streets, the residence of Coleman is elsewhere, therefore due notice was not given. The certificate states that the notice was served at the residence of the indorser by leaving it with his wife; and it appears from the-defendant’s testimony that he received the notice. The evidence satisfies us that the notary served the notice of protest at the residence of Coleman, by leaving it with his wife, and that he made a mistake in stating the locality of the residence; a mistake which might easily be made by one not very familiar with the streets in that locality.

It is therefore ordered that the judgment of nonsuit be set aside, and that there be judgment in favor of the plaintiff against J. C. Coleman, for the sum of nine hundred dollars, with five per cent, per annum interest from the twenty-third of September, 1869, five dollars and thirty cents costs of protest and notice, and costs of both courts.

Rehearing refused.


author: Wyly, J.

text:
    Nos. 3977, 3977½
    Dominique Durac v. Widow Ferrari. Widow Ferrari v. Dominique Durac and Sheriff. (Consolidated Cases.)
    Wiiere A is a solidary obligor witli B, by paying the note he becomes legally subrogated, for the amount of one-half thereof, to the entire obligation of B to the original holder. This subrogation extends as well to the accessory, as to the principal obligation, and the subrogee acquires all the remedies as well as all the rights of the party to whom he was subrogated. Without the remedy of seizure and sale the subrogation would be incom- ' píete.
    A was not a mere transferree who could not proceed via executiva without an act of subrogation. He was legally subrogated, and as such was thoroughly invested with all the rights of the original holder or payee, as if the same had passed to him by a regular act of conventional subrogation.
    Where an objection was made that there was in tne record no authentic evidence of the costs of protests and copy of an act of mortgage;
    Held — That these costs were a part of those incident to the proceeding, and that, if authentic evidence of the amount thereof was necessary, the rule de minimis was applicable.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Albert Voorldes, for appellant.

      M. B. Livaudais and O. B. Schmidt, for appellee.
    Justices concurring: Taliaferro, Howell and Wyly.
   Wyly, J.

In the first of these cases the defendant appeals from a judgment against her for $100 80, the amount found to be due by’her on the demand of the plaintiff for cash disbursed by him for her benefit.

This case presents only questions of fact. It seems to have been examined with great care by the judge a quo, and after examining the evidence fully we are not prepared to say that he erred in his conclusion. This judgment is therefore affirmed.

In the second case, the plaintiff under articles 739 and 740 C. P. in-joined the executory process sued out by the defendant, alleging that the note on which it was based had been extinguished by compensation. In a supplemental petition she alleges that the order of seizure and sale issued improvidently.

First — Because there was no authentic evidence of the payment or the amount actually paid for the mortgage note to which Durac, the defendant, claims to be subrogated.

Second — Because there was no authentic evidence of the payment of the four dollars for copy of mortgage, and the three dollars and eighty -cents for protest, included in the order of seizure. The court dissolved the injunction with forty dollars damages and costs, and the plaintiff appealed.

We see no error in this judgment. The plea of compensation is not sustained by the evidence. The defendant is the holder of the note, and the presumption is, he paid the full value thereof. He was a solidary obligor with the plaintiff, and by paying the noté he became •legally subrogated, for the amount of one-half thereof, to the entire obligation of the plaintiff to ttie original holder. This subrogation extends as well to the accessory as to the principal obligation; and the ■subrogee acquires all the remedies as well as all the rights of the party to whom he is subrogated. Without the remedy of seizure and sale the subrogation would be incomplete. 2 N. S. 161. The authorities cited by plaintiff’s counsel are inapplicable. The defendant was not a mere transferree, who could not proceed via exemtwia without an act of subrogation. No conventional subrogation was necessary for him. He was legally subrogated, and as such, was as thoroughly invested with all the rights of the original holder, or payee, as if the same had passed to him, by a regular act of conventional subrogation. As to the objection that there was no authentic evidence oí the costs of protest and copy of the act of mortgage we will remark that this was a part of the costs incident to the proceeding, and if authentic evidence of the amount thereof were necessary we would hold'the rule de minimis applicable. Besides, an appeal is the proper remedy where a decree of seizure and sale has been obtained on insufficient evidence.

There is, therefore, nothing in this case to authorize the injunction ■under articles 739 and 740, C. P.

■Judgment affirmed.


author: Morgan, J. Ludei.ing, C. J. Howell, J.

text:
    No. 2819.
    Delgado & Co. v. A. C. Wilbur & Co. S. B. Clark v. A. C. Wilbur & Co. The Louisiana National Bank v. T. L. Maxwell, Sheriff. (In concurso.)

    The sixth section of the act of 1868, p. 194, concerning the transfer of hills of lading and the effects of that transfer, is only a legislative sanction given to the commercial law of universal application, hy which it is held that a hill of lading, legally transferred, gives title to the property it represents. It does not clash with the statute of 1855 incorporated in the 3237th article of the Civil Code.
    The article 3237 does not give any privilege upon produce sold for cash. A sale for cash moans that, when the property is delivered, the money is to be paid, and where not paid after delivery, so long as the property remains in the possession and undor the control of the vendee, the vondor’s lien remains as between the parties, but the lien does not follow it when it passes into the hands of innocent third parties. Vendors can not complain if they sell for cash and still allow purchases to taire away the goods without paying for the' same. The fault being with them, the loss, if any, must be theirs also.
    Appeal from the Seventh District Court, parish of Orleans. Oollens; J.

      Bornor & Benedict, for appellees.

      Lea, Finney & Miller, for Louisiana National Bank, appellant.
    Justices concurring: Taliaferro, Morgan, Wyly.
   Morgan, J.

A. C. Wilbur & Co., commercial copartners, shipped’ per steamer Cortez seventy-nine barrels of molasses, for which they received a bill of lading duly executed and delivered.

Seventy-one barrels of this molasses was purchased by Wilbur & Co. from Delgado & Co.; fifty barrels on the seventh February, 1870, and twenty-one barrels on the eighth February, 1870; and eight barrels were purchased by them of S. B. Clark on the eighth February, 1870.

It is admitted that the different sales of this property were made for cash, and that they were delivered to the purchasers on the day of sale.

It is admitted that the shippers indorsed the bill of lading which they had received from the steamer Cortez, and transferred and delivered it to the Louisiana National Bank for a valuable consideration ; that is, the bill of lading was indorsed and delivered to the bank, to secure the payment of a bill of exchange for $1800 drawn by the' shippers upon Williams, Black & Co. of New York, payable ten days after sight, which was negotiated to the bank upon tbe faith of said bill, of lading, to which the bill of exchange was attached according to mercantile custom, and the bill of lading duly indorsed, passed to the-bank with the bill of exchange, for which bill of exchange the bank gave value at the time it was so negotiated to it; that the bill of' exchange was duly presented for acceptance and payment, which was-refused; that the bill was protested; that notice thereof was given to the drawer; and that the bank holds the bill of exchange and the-bill of lading.

It is admitted that the molasses in question was not paid for at the time of irarchase, and that it was unpaid for at the time of the institution of these proceedings.

On the tenth February, 1870, Delgado & Co. and S. B. Clark, by separate proceedings, instituted suit against Wilbur & Co., alleging the sale of the property in question and the non-payment of the price therefor, and sequestered the same, it being then on the wharf in front of the steamship Cortez, and after the steamer had given bills of lading therefor. After the legal delays had expired, Delgado & Co. and Clark bonded the property and took it into their possession.

On the nineteenth of February the Louisiana National Bank instituted suit against Thomas Maxwell, sheriff, claiming to be entitled to the molasses in question, as holder and owner of the bill of lading above referred to, and asked for a sequestration of the same, which was ordered. As between Delgado & Co. and Clark and Wilbur & Co. there was judgment in favor of the former by default, regularly confirmed with vendor’s lien and privilege on the property sequestered.

As between Delgado and Clark and the Louisiana National Bank, by agreement, the three cases were tried together as in a concivrso.

There was judgment in iavor of Delgado and Clark as against the bank, and the bank has appealed.

Who is entitled to this property — or the bonds which represent it— Delgado & Co. and Clark, the vendors? or the bank, the transferrees of the bill of lading given therefor by the steamer Cortez to Wilbur & Co., in whose possession the property was when it was shipped ?

Delgado & Co. and Clark rest their rights upon the statute of 1855, incorporated in the 3227th article of the Civil Code, which declares that “ any person who may sell the agricultural products of the United States in the city of New Orleans shall be entitled to a special lien and privilege thereon, to secure the payment of the purchase money, for and during the space of five days only after the day of delivery; within which time the vendor shall be entitled to seize the same, in whatsoever hands or place they may be found, and his .claim for the purchase money shall have preference over all others.”

The bank relies upon the sixth section of the act of 1868, p. 194, which enacts : “ That cotton press receipts given for any goods, wares, merchandise, grain, flour or other produce or commodity stored or deposited with any cotton press, wharfinger or other person, or any bill of lading given by any forwarder, boat, vessel, railroad, transportation or transfer company, may be transferred by indorsement thereon, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares, merchandise, grain, flour or other produce or commodity therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person or persons,” etc.

In our opinion the law is with the bank. The statute quoted is only the legislative sanction given to the commercial law, of universal application, we believe, that a bill of lading, legally transferred, gives title to the property it represents. 1 An. 80; 11 R. 140; 3 Kent’s Commentaries 282; 1 Peters 386. But the conclusion to which we have come, does not, in our opinion, clash with the privilege granted by the 3227th article of the Civil Code.

We do not think that the article in question gives any privilege upon produce which is sold for cash. A sale for cash means that when the property is delivered the money is to be paid; no term of payment is agreed upon; it is the giving of money and the taking of the article sold, and the two acts are simultaneous. In this case it is admitted that the sale Was for cash, and that the property was delivered to the purchaser on the day of sale. So long as the property remained in the possession and under the control of the vendees, as between the parties, the vendor’s lien remained, but the lien does not follow it when it passes into the hands of innocent third parties. Nor can the vendors complain. If they sold for cash, and still allowed the purchaser to take off the goods without paying for them, the fault was with them; the fault beiug with them, the loss, if any, must be theirs. It is admitted, it is true, that the price was not paid at the time of sale; but it is not shown that this fact was known to the bank at the time it took the transfer of the bill of lading aud advanced its money thereon. In law, and in fact, Wilbur & Co. were the owners, in possession, of the property when it was shipped; they were the holders and owners, of the bill of lading which represented it; there was no impediment in the way of their transferring it; they did transfer it, for value, and their transfer vested the property in the bank, to be held by it until the bill of exchange for $1800, with interest, be paid.

It was agreed between the parties that if the bank's title be maintained, judgment is to be rendered in its favor against Delgado & Co. and S. B. Clark for the amount of the bank’s debt, according to the agreed valuation of the property which they respectively received, viz., $2023 80, the value of the seventy-one barrels released to Delgado & Co., and $231 31, the value of the eight barrels released to S. B. Clark.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the Louisiana National Bank and against Delgado .& Co. condemning them to deliver to the said bank the seventy-one barrels of molasses released to them in the suit of Delgado & Co. v. Wilbur & Co., No. 2667 of the docket of the Seventh District Court, or in default thereof that there he judgment in favor of said hank and against Isaac Delgado and Samuel Delgado in solido, condemning them, to pay to tlie said Louisiana National Bank eighteen hundred dollars, with interest at the rate of five per cent, from the eighth February,. 1870, until paid, and costs.

And it is further ordered, adjudged and decreed that there be judgment in favoT of the Louisiana National Bank and against S. B. Clark, condemning him to deliver to the bank the eight barrels of molasses released to him in the suit of S. B. Clark v. A. C. Wilbur & Co., No. 2668 of the docket of the Seventh District Court, or in default thereof that there be judgment in favor of the Louisiana National Bank and against the said S. B. Clark, condemning him to pay to said bank two hundred and thirty-one dollars and thirty-one cents; the judgments as to each to be satisfied on payment of the debt, interests and costs due the said bank, appellees to pay the costs of appeal.

Ludei.ing, C. J.

I concur in the decree made in this cause solely on the ground that a third party can not be prejudiced by a privilege not recorded. Constitution of 1868, 123.

Howell, J.

I concur for the reason given by the Chief Justice.

Rehearing refused.