Kilgour vs. The New Orleans Gas Light Company.

not yet served, but that is no defect of the bill. Non constat but he may enter his appearance, or may be found in the district and served with process.

That he is a necessary party is perfectly clear. The controversy raised by the bill is a controversy between him and the complainant over the ownership of the fifteen hundred shares of stock in the Crescent City Gas Light Company, or a proportionate number of shares in the New Orleans Gas Light Company. The latter company is a mere stakeholder, entirely indifferent where the stock goes.

It follows that the case can make no progress until Attrill is brought in by service of some kind, or by his entering his voluntary appearance; but as he may be brought in by service or may enter a voluntary appearance, it would be premature to sustain a demurrer to the bill, because he is not already served. I am of opinion, therefore, that none of the grounds of demurrer are well taken, and that the demurrer must be overruled.

The complainant claims that Attrill may be brought in under section 738 of the Revised Statutes.

This section declares: "When any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought is not an inhabitant of, nor found within the said district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer or demur to the complainant's bill at a certain day therein to be designated, and the said order shall be served on such absent defendant, if practicable, wherever found, or when such personal service is not practicable, shall be published in such manner as the court may direct. If such absent defendant does not appear, etc., it shall be lawful for the court, upon proof of the service or publication of said order, etc., to entertain jurisdiction and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district. But the adjudication shall, as regards such absent defendant without appearance, affect his property within such district only."

It may be premature before motion is made for an order for

Kilgour vs, The New Orleans Gas Light Company.

constructive service as provided for in this section, to pass upon the question whether the present is a case to which this section applies, but as counsel have argued the question, I shall proceed to dispose of it.

Constructive service can only be made in "a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district." The case presented by the bill, if it falls within the section at all, is the case of a claim against personal property.

If the property against which claim is set up is the 1500 shares in the Crescent City Gas Light Company, that stock is in the possession of Attrill who holds the legal title thereto according to the averments of the bill, and Attrill is in New York. Can these shares be said to be property within this district? From the fact that the property of the gas company is in this district, it does not follow that the shares of stock are in this district. The property of the company is mainly real estate; the shares of stock are personal property.

"The possession of capital stock does not give a person a particle of legal interest in the corporation property. Though he possesses one-half the entire stock, he is not therefore the owner of one-half the corporate property.

"The corporation still owns it all. There is no divided ownership in the case. Possession of the stock merely entitles the holder to a right to vote, a right of dividend, a right to the faithful appropriation of the funds. These rights are very different from the right of property." Per BRADLEY, J., in Morgan v. The Railroad Co., 1 Woods, 18.

When, therefore, Attrill became the holder of the shares. claimed by complainant in the Crescent City Gas Light Company, and went to New York, he carried the property in the shares with him, for shares of stock in an incorporated company such as a canal, waterworks or gas company are, unless otherwise provided by the charter, personal property. Edwards v. Hall, 6 DeG., M. & G., 74; S. C., 35 Eng. Law & Eq., 433; Tippetts v. Walker, 4 Mass., 595; Bradley v. Holdsworth, 3 M. & W., 422; The King v. Capper, 5 Price, 217; Johns v. Johns, 1 Ohio St., 350. And personal property follows the person.

Reid vs. Rochereau & Co.

Morgan v. Parham, 16 Wall., 471. These shares considered as part of the stock of the Crescent City Gas Light Company cannot therefore be said to be property within this district.

If these 1500 shares in the Crescent City Gas Light Company are to be considered as merged in the stock of the New Orleans Gas Light Company, the shares in the latter company are still the property of Attrill who holds the title to them, and follow his person to New York where he is.

In the event that the consolidation of the two companies is confirmed, there is another obstacle to an order for constructive service. The claim of the complainant is not for any particular shares of stock that can be designated by number or identified as possessed by a particular person, but it is for 650 shares out of 12,500 shares. Clearly a claim to a given number of shares of stock, not yet designated or ascertained, cannot be said to be property within the meaning of sec. 738, Rev. Stat. The case provided for by the statute is a legal or equitable lien or claim on real or personal property. The right asserted by the complainant to undesignated shares of stock is a chose in action, but is neither real nor personal property, within the meaning of the statute. I am therefore of opinion that Attrill cannot be made a defendant to this suit by constructive service.

ELLEN C. REID VS. A. ROCHEREAU & Co. et al.

1. A married woman cannot convey or incumber her real estate except in the manner prescribed by law.

2. She is not bound by a false declaration made in a mortgage executed by her, to the effect that the mortgaged property was community property, even if the mortgage is executed with all the forms prescribed by law.

3. Where a married woman had a separate paraphernal fund amounting to $6,429, and invested it in property which cost $10,370, the excess being paid out of the community funds, and took the deed in her own name: Held, that the property belonged to the community, and the married woman became the creditor of the community for the amount so invested by her.

IN EQUITY.

Heard on pleadings and evidence for final decree.

Reid vs. Rochereau & Co.

This was a bill filed by Mrs. Ellen C. Reid, her husband, Andrew J. Reid, appearing as her next friend, to set aside a sale of certain real estate in the city of New Orleans, made by the assignee in bankruptcy of the said husband, Andrew J. Reid, the property having been sold as part of the bankrupt estate.

The facts, as disclosed by the evidence, were as follows: The complainant and Andrew J. Reid were married in 1862. At the time of her marriage, the complainant received from her father, as a marriage gift, the sum of $2,100 in gold and silver coin, which she managed and administered until the year 1867, at which time it had increased to the sum of $3,100 in United States currency. In August, 1867, the mother of complainant gave her the sum of $3,329; so that, at that time, the complainant had in her possession, as her separate paraphernal property, the sum of $6,429.

The complainant, in May or June, 1867, made a bargain with one Harrell for the purchase of two lots, the same being the property in controversy in this case. The price agreed on was $2,200, of which $1,000 were paid in August or September by complainant out of her paraphernal funds. On the 30th of December, 1867, Harrell, by notarial act, conveyed the premises of Mrs. Ried, and on the 10th of March, 1868, she paid to him out of the same fund, as she claimed, the residue of the purchase money of the lots, to wit: $1,200. Although the conveyance was made to Mrs. Reid, it did not recite that the purchase money was paid out of her separate paraphernal estate, nor that the property conveyed was to be held as her separate property. Soon after making the bargain with Harrell for the purchase of the lots, the complainant made a contract for the erection on them of a dwelling, for the price of $7,500. The dwelling was completed in the autumn of 1867, and the price agreed on was also paid out of the paraphernal funds of complainant, as she claims.

On the 26th of March, 1873, Andrew J. Reid, the husband of complainant, and complainant herself joined in an authentic act before James Fahey, notary public, whereby, to secure the sum of four thousand four hundred and fifty-six dollars, then loaned by T. M. Hyde to Andrew J. Reid, they conveyed the said premises to said Hyde.

Reid vs. Rochereau & Co.

This act of mortgage contained the following declaration: "And here the said Andrew J. Reid and Mrs. Ellen C. Reid mutually declare that although the herein above described and mortgaged property was acquired in the name of Mrs. Reid, as aforesaid, nevertheless the same was purchased with funds belonging to the community then existing and which now exists between them, and really belongs to said community."

Reid, the husband, had represented to the notary who drew up the act, that the property was community property, and it was upon the strength of his announcement that the above clause was inserted in the act.

The act was not signed by Mrs. Reid in the presence of the notary, but of one Jones, the clerk of the notary, who afterwards, on the same day, subscribed the act as a witness. Mrs. Reid knew that the act was a mortgage for $4,400 on the property therein described, and that the money was to be paid her husband, to enable him to commence business; but the mortgage was not read to her in full; the written parts, including the clause above quoted, were explained to her by Jones, who offered to read the entire act; but Mrs. Reid said it was unnecessary, as she understood what it was.

The notary himself never explained to Mrs. Reid the nature and character of the act separate and apart from her husband before she signed the same. In fact he never saw complainant until long after the execution of the mortgage.

The money raised on the mortgage, to-wit, $4,400, was paid by Hyde, the mortgagee, to complainant's husband, and was used by him in his business.

The bill claimed that the property so mortgaged was the separate paraphernal property of complainant, and that the mortgage, made to secure the said sum of money for her husband was void; and the bill prayed that it might be so declared, and that the sale of said property, by virtue of the proceedings in bankruptcy against complainant's said husband, might be set aside and declared void, and that the purchasers at said sale might be perpetually enjoined from interfering with complainant's possession.

Mr. John McEnery, for complainant.