the pledge having been effected by the delivery of three bills of lading respectively attached to three drafts representing together the total amount of the loan intended to be thereby secured. The loan was made and the pledge executed on December 26, 1887. It appears that on the next day, December 27th, the Planters' Sugar Refining Company sued out a writ of sequestration against Haynes & Rogers, and seized the same sugar, covered as stated by the carrier's bill of lading, over which they claimed the vendor's lien and privilege, for the unpaid purchase price. On December 29th following, the insolvents made a voluntary surrender of their property, obtaining the customary order of stay of proceedings. The rule of the bank is resisted by the syndic and by the Planters' Sugar Refining Company, the former by exception, the latter by an intervention, in which they set up their superior privilege and the legality of their sequestration; and in which they aver that in view of such privilege the bank could not and did not acquire a legal pledge accompanied by possession, constructive or otherwise, of the sugar in question; ending with a prayer to be allowed to bond the sugar as seizing creditors. There was judgment in favor of the bank, ordering the sugar to be returned to it on its furnishing for the coming bond in a sum of $3,000, and reserving the right of the syndic in proper proceedings to attack in the interest of the creditors the validity of the pledge claimed by the bank. This appeal is taken by the syndic and by the refining company, who join together in the following constitution: (1) That the sugar having been sold to the insolvents on December 24, 1887, less than five days previous to the date of the pretended pledge to the bank, and the price being unpaid, the vendor's privilege, recognized by article 3227 of the Civil Code, was an effectual bar to the creation of a pledge in favor of the holder of a bill, or, of his right to claim possession of the property thus affected by the vendor's lien. (2) That the debtors having made a cession of their property within five days of their purchase of the sugar, the syndic is entitled to the possession of the same, to be by him sold subject to all privileges resting on it. Before discussing the two points which are presented in this appeal we must dispose of the misapprehension of appellants touching the nature of the relief which the bank is seeking to obtain. They seemingly and positively construe the proceeding as an application for leave to bond the sugar. This is an error, which is made manifest by a mere reference to the prayer of the rule, which reads as follows: "It is ordered that John A. Wogan, provisional syndic, show cause on Friday, January 13, 1888, why said barrels of sugar should not be returned to said bank." And the prayer was predicated on averments that the bank was in possession of the sugar under its pledge, when it was seized by the sheriff in the sequestration proceedings instituted by the sugar refining company. It is true that in his judgments the district judge required a forthcoming bond of the bank as a condition of its being given possession of the sugar The judge may have deemed that condition as a wise precaution; and the bank, urging no complaint thereto, must be held as acquiescing therein; but evidently the question of bond as a relief asked by the bank is no factor in the issues which are submitted to us on this appeal.

1. The facts alleged by appellants in their first ground are supported by the record, but the legal inference which they draw therefrom finds no sanction in law or jurisprudence. No feature of the vendor's privilege suggests the right of the vendor to retain possession of the property sold. On the contrary, every element, and the essence itself of the contract herein between intervenors and the insolvents, necessarily require a parting with possession of the merchandise sold by the vendor. Article 3227 of the Civil Code, on which they rest exclusively their alleged vendor's lien, presupposes a delivery of the property by the vendor. It reads: "Any person who may sell the agricultural products of the United States in this city of New Orleans shall be entitled to a special lien and privilege thereon to secure the payment of the pur

chase 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 bear preference over all others." Hence it follows that nothing in the nature of the vendor's rights in the premises, of which other persons had no notice or knowledge, can preclude any other creditor from acquiring a right of pledge over the property sold by him. In such case the pledgee takes the property subject to such other incumbrances as may affect the thing pledged. Id. art. 3142. This reasoning concedes the existence of the privilege set up by the intervenor; but, as suggested by appellee's counsel, the merits of that claim, which is denied by the bank, cannot be discussed in the present proceeding. The only question at issue is the alleged incompatibility of the coexistence of a vendor's privilege in favor of one creditor, and a right of pledge in favor of another, over the same property, as contended for by appellants. The relative merits of both the vendor's lien and the pledge have been properly relegated by the district judge to further proceedings in the settlement of the estate of the insolvents. For the purposes of the present contention it is sufficient to determine whether the bank presents a pledge prima facie regular, and that question must be decided in its favor. The record shows that the bills of lading were delivered to and received by the bank on the 26th of December, 1887, and the right of pledge legally flowed from the transaction, subject, as we have already seen, to prior liens or incumbrances. Chopin v. Clark, 31 La. Ann. 846; Allen v. Nettles, 39 La. Ann. 791, 2 South. Rep. 602. The conclusion is therefore warranted that the possession of the sugar by the railroad company under bills of lading held by the bank was the possession of the bank, and the question now recurs to ascertain by what legal means has the bank been effectually divested of its possession.

2. That brings us to the discussion of appellants' second point of contention, that by reason of the surrender of insolvents withing five days of the sale of the sugar, the legal possession of the same must be vested in the syndic. Conceding that intervenors' writ of sequestration was properly issued, that a legal seizure of the sugar was made thereunder, and that the bank was thereby divested of its possession as pledgee, it is elementary that under the effect of the judicial acceptance of the surrender the writ of sequestration was effectually paralyzed, and the effect of the seizure entirely avoided. In an ordinary case the syndic would have gone into the possession of the sequestered property. But in the instant case he is met by a pledge in due form, and in full vigor; the legal effect of which, as to its possession only, had been temporarily suspended by operation of the writ of sequestration. At the moment that the latter fell the possession under the pledge revived, and reverted in favor of the bank; and our jurisprudence has settled the status of such even in the face of the surrender of the debtor. Jacquet v. Creditors, 38 La. Ann. 864; Renshaw v. Creditors, 40 La. Ann. 3 South. Rep. 403. In the latter case the court said emphatically: "The right of retaining possession of the thing pledged until payment of his debt, conferred by article 3164, Civil Code, is an essential constituent of the jus pignori, and not effected by the cession of the pledgeor. That right cannot be affected by the existence or nature of any prior or ranking lien or privilege which may incumber the thing. Hence we find no error in the ruling of our brother of the district bench. Judgment affirmed.

FENNER, J., recuses himself.

ELDER v. FARRELL.1

(Supreme Court of Louisiana. May 26, 1888. 40 La. Ann.)

1. JUDGMENT-RES ADJUDICATA-SUIT BETWEEN VENDOR AND VENDEE-FORMER VEN

DOR.

In a former suit between a vendor and purchaser, involving the validity of title, the former vendor and warrantor, having notice thereof, and participating in the case through counsel, though not a party, is not bound by the judgment therein adverse to the title as technical res adjudicata; but in a subsequent suit against him as warrantor of the same title the former adjudication will be followed unless manifestly erroneous, or unless the issue is changed by new and additional evidence.

2. DEED-MISDESCRIPTION-CORRECTION.

The law and facts considered, and no reason found to disturb the judgment appealed from, which conformed to the prior adjudications.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; A. L. TISSOT, Judge. Action by R. W. Elder against M. J. Farrell to recover price of sale, with damages. Judgment for plaintiff, and defendant appeals.

W. S. Benedict, for appellant. J. Ward Gurley, Jr., for appellee.

FENNER, J. Plaintiff sues his vendor and warrantor to recover the price of sale, with damages, on the ground of nullity of title. After his purchase plaintiff sold a part of the property at public auction, and it was adjudicated to Reid. The latter refused to comply with his bid, and plaintiff brought suit to compel him to do so. He set up in defense the identical defect of title which is urged in the present case. Plaintiff called Farrell in warranty, but, on exception, the call was dismissed. Farrell's attorney, however, aided in the prosecution of the suit in the district court and on appeal to the court of appeals. The trial resulted in a judgment of both courts maintaining the defense of Reid, and rejecting Elder's demand. Hence the present suit. While the judgment in the suit against Reid may not operate as technical res adjudicata against Farrell, who was not a party thereto, it is obvious that the case presented the identical issue here involved,-that Farrell had notice thereof, and through his attorney participated therein; that he had full opportunity to urge everthing in favor of his title which he has urged here, and has thus enjoyed all the practical benefits of his day in court. Under such circumstances it would require either the presentation of important new matter changing the nature of the case submitted, or very evident error in the former judgment, to justify us in holding that the title, which is judicially determined to be bad against Elder, is good in favor of Farrell. There is no suggestion of any new or additional evidence in support of the title, and we discover no manifest error in the former determination of the question, which is once more repeated in the judgment appealed from. Briefly, Farrell conveyed to Elder a square of ground bounded by Walnut, Wall, and Oliver streets and the Foucher property, and designated as “Square No. 39” on the plan made by Buisson, surveyor, under date of April 15, 1836. This property, so described, was bought by John Green in 1849, and has never been sold by him. In 1858 he sold to Brown a square of ground described as bearing the same number on the same plan, but "bounded by Walnut, Ferdinand, and Oliver streets and Foucher property," which is a square adjoining the one bounded by Wall street. The latter description was contained in Farrell's own title, and in all the mesne conveyances through which it was acquired. The Buisson plan is not produced in evidence. There is no proof that Green did not own both squares; and nothing to show that the error may not have been in the number, rather than in the boundaries of the squares. Both squares were and remain vacant. In 1882, after Farrell discovered the al

'Publication delayed awaiting expiration of time for filing application for rehearing.

leged error of description, he attempted to correct the same by an act between himself and sundry of his antecedent vendors; but this was manifestly ineffectual, because Green, whose outstanding title is the obstacle, was not a party, or represented therein. On the whole, defendant has made out no case which would justify us in disturbing the judgment appealed from, which conforms to the prior adjudications on the identical issue between other parties. Judgment affirmed.

WEEKS v. NEW ORLEANS, S. F. & L. R. Co.1

(Supreme Court of Louisiana. May 25, 1888. 40 La. Ann.)

1. RAILROAD COMPANIES-INJURY TO PASSENGERS-CROSSING TRACK.

Passengers crossing a railroad track at a station, in order to leave or board a train halted for that purpose, are not held to the exercise of the same care and diligence which are ordinarily exacted from persons crossing tracks, but are authorized to assume that the railroad corporation will so order its trains that he will be safe from harm on the track, which he is thus invited and required to cross in order to secure his passage.

2. SAME-BOARDING MOVING TRAIN.

But where a person attempts to board the train while moving, and after it has left the station, he no longer acts on the invitation, or stands under the protection, of the company, and, while crossing or occupying the track, is bound to use proper care for his own protection.

Evidence discussed, and conclusion reached that the injured party here was subject to the last-mentioned rule.

Having thus negligently stood upon the track in full view of a nearly approaching train, which rang its bell and sounded its whistle, and having failed to use his senses in his eager absorption in the attempt to board a moving train, in itself an improper and indiscreet act, he must be held guilty of contributory negligence, which debars recovery.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; N. H. RIGHTOR, Judge. Action by Mrs. Julia Weeks, tutrix, against the New Orleans, Spanish Fort & Lake Railroad Company for injuries to the minor son of plaintiff. Judgment for plaintiff, and defendant appeals.

Robert Mott and Harry H. Hall, for appellant. George Denegre, for appellee.

Walter Denegre and

FENNER, J. At the point with which we are concerned the defendant's double-track railroad runs along Bienville street. At the intersection of Bienville and Napoleon streets lies, on one side of Napoleon street, a square known as "Loeper's Park," and on the other, or city, side, a vacant square known and used as a “Base-Ball Green." Loeper's park contains a garden, buildings, places of refreshment, dancing platform, etc., and is used for picnics and as a place of resort on Sundays. Its entrance gate on Bienville street is about 35 feet from Napoleon street. On Sunday, August 8, 1886, defendant's train, coming from the lake to the city along the track furthest from the park and base-ball green, stopped at Loeper's park gate, and took on a number of passengers. It then moved on, and, while moving, 25 or 30 boys, who had been engaged in base-ball on the green, came running towards the train, crossing the intervening track, or, being upon it, began catching on the moving train. All succeeded in catching on except the son of plaintiff, an intelligent boy of 15 years, who waited for the rear coach, and was standing on or near the intervening track when the outgoing train going on said track came along, and struck him, inflicting severe injuries. The point at which he was struck was about 100 feet from Loeper's park gate, which

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point had been reached by the rear coach of the ingoing train. The present action is for damages for the injury then inflicted. The substantial allegations of the petition are, as to the grounds of liability, that the injury was caused by the gross negligence, carelessness, and want of skill of the defendant's agents and employes; that the boy was lawfully in the position occupied by him when run over, about boarding the incoming train at the spot where he was run over; and said trains usually stopped for Loeper's park; and that the said minor was in no way negligent or at fault. We quote the language of the supreme court of the United States, as follows: "The question in such cases is: First, whether the damage is occasioned entirely by the negligence and improper conduct of the defendant; or, secondly, whether the plaintiff himself so far contributes to the misfortune by his negligence or want of personal care and caution that, but for said neglect or want of care and caution on his part, the misfortune would not have happened. In the former case the plaintiff is entitled to recovery, and in the latter he is not." Railroad Co. v. Jones, 95 U.S. 441. The same doctrine is fully sustained by our own jurisprudence, and was announced by us in the following terms: "Where the injury results from the negligence of plaintiff and negligence of defendant in such a manner that the negligence of each may be considered as a juridical cause of the injury, the law will not undertake to apportion either the blame or the damage." Summers v. Railroad Co., 34 La. Ann. 144; Childs v. Railroad Co., 33 La. Ann. 156.

1. The main ground upon which negligence is imputed to defendant is that the outgoing train was violating the following general order issued for the government of its conductors and engineers: "Under no circumstances will you allow your trains to pass each other while taking on or discharging passengers at street crossings. In cases where trains meet at streets crossing, the rear coach of the train having the crossing must have passed the pilot of the waiting engine before such engine is permitted to pass." We think it very clear that this order only means that one train shall not run by another when the latter is stopped at a street crossing or other stopping place, taking on or discharging passengers, but in such case must halt, and stand until the latter train started, and has entirely passed the waiting engine. The rule is an eminently proper one, and, if the accident had resulted from its violation, and the boy had been run over while properly and lawfully boarding a balted train at its stopping place, the fault of defendant would have been so gross that only the clearest proof of contributory negligence equally gross could have saved defendant. Even independently of the violation of its own express rule, the case would then have fallen under the domination of a wellconsidered line of authorities which hold, in substance, that a passenger crossing a track at a station to leave or get on a train halted for that purpose is not held to the exercise of the care and vigilance which are ordinarily exacted from persons crossing railroad tracks, but is authorized to assume that the railroad corporation will so regulate its trains that he will be safe from harm on the track which he is thus invited and required to cross in order to secure his passage. Terry v. Jewett, 78 N. Y. 338; Brassell v. Railroad Co., 84 N. Y. 241; Klein v. Jewett, 26 N. J. Eq. 474; Jewett v. Klein, 27 N. J. Eq. 551. But in the instant case the evidence makes it clear that the ingoing train had completed its stop, and was actually moving on before the outgoing train was near, and that the latter was therefore not required to halt, under the letter or spirit of the rule, but had the right to assume that the operation of receiving and discharging passengers had been completed, and that it might safely pass. In point of fact, the engine of the outgoing train passed the last car of the incoming train at a point considerably beyond Napoleon street, both trains being entirely clear of the crossing; and at this point the boy was injured. So far as appears from the evidence, the operation of receiving and discharging passengers was completed, and the track was clear,