been established by the constitution of 1868; but his contention is that the -section is necessarily inconsistent with, and was therefore abrogated by, the *present constitution, under which justice's courts and the tribunal which was 'then their exclusive appellate court have both ceased to exist. That section reads as follows: ". 'All appeals from judgments of the justices of the peace returnable to the Third district court shall be made within ten days after the bond of appeal shall be filed in the office of said justice of the peace." As we are unable to discover any difference between a rule which requires the performance of an act within 10 days of a given time and a rule which requires the same thing to be done "before the expiration of the tenth day" of the same time, we cannot make the distinction which is the basis of the respond'ent judge's conclusions in his ruling complained of. If the appeal was filed within 10 days after the date of filing the appeal-bond in the city court, the act must, in the nature of things, have been done before the expiration of the tenth day, or otherwise it would have been after and not within 10 days. Under these views it becomes unnecessary for the purposes of this case, to judicially determine whether the section has been abrogated or not. It is substantially reproduced in the rule of court under consideration which was evidently predicated thereon, the only change made being in the use of different words conveying the same meaning. From the circumstance that the supervisory jurisdiction now vested in this court did not exist under any previous constitution of the state, it follows and it appears that the provisions of 'section 2093, Rev. St. 1870, have never been construed by this court; and the proper interpretation of the same provision, as now incorporated in rule 29 of the civil district court in this case, comes up for the first time since the adoption of the constitutional amendment, (1884,) which vests that court with appellate jurisdiction over city courts. But we are not without judicial precedents in our present investigation, as we find several decisions of this court which give an interpretation of the rule in article 318 of the Code of Practice as applicable to an analogous provision of law incorporated in article 575 of the same Code, which declares that execution of a final judgment is stayed if an "appeal has been taken within ten days" after said judgment. It has been held that in computing these 10 days the day on which the judgment was signed and the day on which the appeal was taken should not be included. Thus in the case of Garland v. Holmes, 12 Rob. (La.) 421, it appeared that the judgment had been signed on the 20th of December, 1845, and the appeal was taken only on the 2d of January following, making an actual interval of 13 days; but, after excluding two Sundays and ruling that the day on which the judginent had been signed and that on which the appeal had been taken should not be included, the court held that the appeal had been taken within 10 days after the judgment had been signed. That case was followed under similar circumstances in State v. Judge, 29 La. Ann. 224, and subsequently in Tupery v. Edmondson, 29 La. Ann. 850. Without expressing our opinion on the subject, if the question was res nova, we conclude that the decisions above referred to in the construction therein adopted of the application of article 318 of the Code to expressions precisely similar in article 575 have acquired the force of the rule stare decisis, and that they must control our ruling in the present controversy. To be efficient, rules of practice must be unequivocal, and hence they must be uniformly expounded. Thus concluding, we hold that relator's appeal had been seasonably brought up, and that there is error in the judgment of dismissal. It is therefore ordered that the alternative writ of mandamus herein granted be made peremptory, and that the respondent judge be commanded to entertain and to pass on the merits of the appeal taken in the case of Thos. Sully & Co. v. J. B. Solari, from the Fourth city court of the parish of Orleans, and that relator recover his costs in this proceeding.

GUNTHER et al. v. NEW ORLEANS COTTON EXCH. MUT. AID Ass'n.

(Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.)

L INSURANCE-MUTUAL BENEFIT ASSOCIATION-NOTICE OF ASSESSMENTS-ESTOPPEL. The fact that by the charter of a mutual benefit association a particular method of notice of assessments falling due is declared to be sufficient and binding on all members does not exempt the corporation from the operation of the principles of equitable estoppel, which apply to all other persons, natural or juridical.

2. SAME-NON-COMPLIANCE WITH CONTRACT-Forfeiture.

In matters affecting the execution of contracts, the doctrine of estoppel has no use or significance when the contract has been complied with. It is only in cases of non-compliance that the question arises whether the other party has, by his representations or course of conduct, estopped himself from setting up such non-compliance as a ground of forfeiture.

2. SAME.

Forfeitures are not favored by the law; and in cases of insurance, where the company has pursued a course of conduct which leads the insured honestly to believe that by conforming thereto his rights will be protected, the company will be estopped from claiming a forfeiture, although incurred under the letter of the con

tract.

4. SAME-NOTICE OF ASSESSMENT-FAILURE TO RECEIVE-TENDER.

Hence, though the charter provides only for notice by posting, yet, if the company adopts the practice of always sending written notice by mail, to a particular class of members, of assessments due, and if on a particular occasion it failed to send such notice, and if the failure to pay was solely due to the want of notice, and if, as soon as informed, payment was tendered, the company is estopped from claiming the forfeiture.

5. SAME EVIDENCE.

Upon a review of the evidence, the facts of the uniform custom to send notice, and of the failure to send it in the particular case in which the default occurred, that this was the sole cause of non-payment, and that payment was offered as soon as knowledge was obtained, are found established, and therefore the judgment is affirmed.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; W. T. HOUSTON, Judge. Action on a life insurance policy by Mrs. Fannie Gunther et al. against the New Orleans Cotton Exchange Mutual Aid Association. Judgment in favor of plaintiffs, and defendant appeals.

Bayne, Denegre & Bayne, for appellant. W. F. & D. C. Mellen, for appellees.

FENNER, J. The defendant is a corporation, organized as a mutual benefit association, the members of which, or their designated beneficiaries, are entitled at death to receive an amount equivalent to the sum of certain assessments which are levied upon and payable by the surviving members. Plaintiffs exhibit a certificate of the association, reciting the membership of Julius Aroni, and that, in consideration of $20 by him paid as such, said Aroni has secured to his children, (the plaintiffs,) in the nature of insurance upon his life, all the benefits of said association, subject at the same time to the conditions, limitations, and penalties imposed by the charter of the association. Defendant admits the original membership of Aroni, and the right of plaintiffs to claim whatever is due in the certificate, but avers that, in accordance with the provisions of the charter, he had, prior to his death, been duly suspended for non-payment of assessments, and entirely forfeited his membership, and all claims against the association. The charter contains the following provisions: "Upon proof of the death of a member, each surviving member shall, within ten days, pay to the secretary the sum of ten dollars. A notice posted in the rooms of the Cotton Exchange shall be deemed a proper notification to all members. Any member not having paid within ten days shall be suspended, and shall be treated as not being on the rolls of membership; and, in case of his death during the period of such suspension, he shall forfeit all claim upon the association: provided, however, that within thirty days v.5so.no.6-5

from the date of such notice, upon payment of past dues, and any that would have accumulated had he remained a member of this association, his suspension shall cease. Should any member remain in default after the said term of thirty days, he can only be reinstated by a vote of the board of directors, and upon payment of all arrears." To become a member it was essential that the applicant should be either a member of the Cotton Exchange, or holder of a power of attorney of a member or a visiting member, or an employe of said exchange; but the charter provided that "any member may withdraw from the Cotton Exchange without severing his connection with this association." The rule with regard to notice was evidently adopted with reference to the original conditions of membership, under which every member having access to the floor of the Cotton Exchange would have the opportunity to observe the posted notices. But, as time went on, under the operation of the provision last quoted, there arose a class of members of the association who had ceased to be members of the exchange, and had lost the privilege of access to its rooms. As to them the posting of notices in a room which they were forbidden to enter became obviously unavailing. We do not say that this change of condition operated the creation of any new right, or imposed any duty, upon the association, to give a different notice from that required by the charter. It might have stood upon its rights, and have held the excluded members to the hard lines of their contract. But it did not choose to do so. On the contrary, it adopted the just and reasonable custom of sending by mail written notices of all assessments due, to all such members, and even to others who requested it. It is true that the president says that he told such members as spoke to him on the subject that this was a matter of courtesy, and not of right; but he does not pretend that he made such statement to Aroni. Aroni had ceased to be a member of the Cotton Exchange. Under the custom above indicated, notices were always mailed to his address when assessments became due, and he always paid. The custom was to send notices, as soon as an assessment was posted, to all members who, like Mr. Aroni, were not admitted to the exchange. In November, 1885, Mr. Aroni was stricken with cerebral apoplexy and softening of the brain, from which date until his death, in the latter part of 1886, he remained in a state of mental incompetency. Mr. Aroni had an office on Carondelet street, and resided in rooms on Canal street, both of which were known to the officers of the association charged with giving notices. In February, 1886, two deaths occurred, of which notices were received at his office, and his son, Mr. Ernest Aroni, promptly paid the assessments. On March 27, 1886, another member, Mr. Friedlander, died. No notice was ever received of this death, either at the office or residence of Mr. Aroni. Mr. Mellen, his friend and associate in much legal business, testifies that he regularly examined his mail, and that no such notice came. If it had, he would have attended to it. Mr. Ernest Aroni states he was with his father day and night at his residence, and that no such notice came there. The officers of the association testify that notices were sent out as usual, and that they presume one was sent to Mr. Aroni, but they do not profess to remember it as a fact, or to have any record of any kind to confirm their impression based simply on their ordinary course of proceeding. The liability to accidental omission in sending a large list of notices is too great to justify us in giving to this testimony sufficient weight to overthrow the presumption resulting from the fact that all other notices sent reached their destination, and that this one certainly did not.

Another fact still more strongly weighs against the defendant. On the 31st of March, 1886, Mr. R. N. Lewis, another member, died. This was several days before the expiration of 10 days from the death of Friedlander, at a time when Mr. Aroni was in no manner in default, when the custom clearly entitled him to immediate notice of the assessment, and when there was no excuse for not sending it. If the former notice had simply miscarried in the

mail, it is not likely that a similar accident would have happened a second time. If the latter had been received, all the consequences of the former accident would have been averted. Yet it is admitted that in the second case no notice was sent. The admitted failure to give notice in this case, being without excuse, supports the probability of failure in the former, and places the association in fault. There is not the slightest ground for attributing the failure to pay these assessments to any other cause than want of notice. As soon as the default came to the knowledge of the beneficiaries, and long before the death of Mr. Aroni, the parties immediately tendered payment of all assessments due, and demanded the reinstatement of Mr. Aroni, which was refused. We therefore accept and treat it as a fact in the case that Mr. Aroni was not notified of any assessment which he failed to pay, unless the simple posting in the exchange operated as a sufficient notice. The learned counsel for defendant vigorously maintain that Mr. Aroni was entitled to no other notice than the posting; that the charter is a contract to which he was a party, and by the terms of which he is bound; and that he had not, and no action of the officers of the company could confer on him, a right to any other notice than that which the charter declared should be sufficient. We can discover no possible reason why the defendant should be exempt from the application of the principles of equitable estoppel which operate upon all other persons, natural and juridical, nor why the mere fact that there was a contract should bar their application. In matters affecting the execution of contracts, there would never be any occasion for invoking the doctrine of estoppel if the party had complied with the terms of his contract, because such compliance would be of itself a sufficient basis for his legal right. It is only when the terms have admittedly not been complied with that the question arises whether the other party has, by his representations or conduct, estopped himself from setting up such non-compliance as a ground of forfeiture. Says Mr. Bigelow: "Where a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things; and induces him to act upon that belief so as to change his previous position, he will be estopped to aver against the latter a different state of things." Bigelow, Estop. Introduction, p. 64. There can be no doubt that the long-continued practice of the defendant company to send to Mr. Aroni prompt notice of every assessment as soon as made, justified him in believing that he would receive such notices, and in acting on the belief that, by paying when so notified, his rights would be protected. The case is very much stronger than that of ordinary insurance, where a fixed premium is due at a date certain, and where the insured, independently of any notice, is fully advised of his duty in the premises. Here notice of some kind was absolutely essential in order to inform the insured that anything was due. But, even in the former class of cases, it has been universally held that, however positive the terms of the contract in requiring payment, unconditionally, of the premiums when due, yet, if the company pursues the practice of notifying its policy-holder before the maturity of his premiums, the latter would have the right to expect and to rely on receiving such notices; and that, if the company failed to send it in a particular case, it would be estopped from claiming a forfeiture for non-payment at the exact time. This has been held by the United States supreme court, using the following language: "Forfeitures are not favored in the law, and courts are always prompt to seize hold of any circumstances that indicate an election to waive a foríeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting on the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from en

forcing the contract. In the present case it appeared that the company had discontinued its agency at the place of residence of the insured soon after the policy was issued, and had given him notice by mail, from time to time, where and to whom to pay the premium. Such notice, it would seem, had never been omitted prior to the maturity of the last installment. The effect of the judge's charge was that, if this was the fact, and if no notice had been given on that occasion, and the failure to pay the premium was solely due to the want of such notice, it being ready and being tendered as soon as notice was given, no forfeiture was incurred. We think the charge was correct, under the circumstances of this case. The insured had good reason to expect and to rely on receiving notice to whom and where he should pay that installment. It had always been given before," etc. Insurance Co. v. Eggleston, 96 U. S. 572. The same doctrine was reiterated in a later case, and was extended to a case where the insurance company was in the habit of receiving the premium, though tendered a few days after maturity, and was thereby held to be estopped from claiming a forfeiture when the premium was tendered within a reasonable time of the maturity. Insurance Co. v. Doster, 106 U. S. 30, 1 Sup. Ct. Rep. 18. See, also, Insurance Co. v. Pierce, 75 Ill. 426; Attorney General v. Insurance Co., 33 Hun, 138; Thompson v. Insurance Co., 52 Mo. 469; Fitzpatrick v. Insurance Co., 25 La. Ann. 444. The last case quoted fully recognizes the authority of a mutual benefit association, like the defendant, to change the method of notice provided in the charter, and held the company estopped from setting up a forfeiture under the charter notice, where the new notice adopted had not been given. We consider the present case as

fully covered by the principle above set forth. Judgment affirmed.

HAYNES et al. v. THEIR CREDITORS.1

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

PLEDGE-RIGHTS OF PLEDGEOR-PRIOR LIENS.

The right of retention of the thing pledged by the pledgee is not affected by the cession of his property by the debtor, reaffirming Jacquet v. Creditors, 38 La. Ann. 864, and Renshaw v. Creditors, 40 La. Ann., 3 South. Rep. 403. The fact that the thing pledged is subject to a lien for the purchase money under article 3227 of the Civil Code, does not preclude another creditor from acquiring possession as holder of bills of lading of the same property. In such case he takes the pledge subject to prior liens. Civil Code, art. 3142. The pledgee, whose possession of property by bills of lading is disturbed by sequestration of another creditor, is entitled to resume possession of the thing pledged as soon as the same is released from seizure by the surrender in insolvency of the debtor.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; A. L. TISSOT, Judge. The firm of Haynes & Rogers pledged a quantity of sugar to secure a loan from the Union National Bank of New Orleans. The Planters' Sugar Refining Company seized the property, claiming a vendor's lien thereon. Soon after Haynes & Rogers, as insolvents, made a voluntary surrender of the firm property. In an action for the possession of the sugar the district court sustained the pledge to the bank. From this judgment the syndic and the Planters' Sugar Refining Company appeal.

Harleton Hunt, for syndic. Harry H. Hall and T. Gilmore & Sons, for

bank.

POCHÉ, J. The object of the Union National Bank in this proceeding is to be restored to the possession of a certain lot of sugar in barrels, which had been pledged to it by the insolvents a few days before their surrender, to secure three loans of money aggregating $2,228.88, made to them by the bank;

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