
    No. 989
    Joseph Lallande v. George Ingram—The Same v. R. M. Davis.
    In all oases of pledge, the pledgee must be put in possession of the thing pledged, and, if it be a claim, the evidence of the obligation must be transferred and delivered.
    Shares of stock cannot be pledged, unless they be evidenced by certificates, which must be transferred and delivered to the pledgee.
    A transfer or sale of stocks cannot be inferred, wlieii the relation of debfcof «tad Ci'editoi* exist on the face of the act of pledge.
    A FPEAL from the Fifth District Court of New Orleans, LeaUmont, J.
    
      Geo. L. Bright, for plaintiff and appellant.
    
      T. A. Bartleiie, for defendants and appellees.
    
      
      'Brief of Q. L. Bright, for plaintiff and appellant.
    
    * * The act of pledge which plaintiff sets up as having been passed before Hugh Madden, Notary Public, on 9th April, 1863, is fatally defective, and is entirely null and void ; that no stock had ever been issued to B. M. Davis at the time of the pretended pledge ; that the formalities and requisites of law were not observed in the alleged act of pledge.
    During the pendency of this injunction suit, Lallande, who had obtained a judgment against Davis, seized and sold the 1,000 shares, and the proceeds being in the hands of the sheriff, he took a rule on Ingram and the sheriff, to show cause why the sheriff should not pay him the full amount of his judgment, with interest and costs.
    By consent of all parties, this rule which involves the questions presented in the in j unction suit, is consolidated with it.
    We return to the injunction suit.
    By authentic act, J. E. Livaudais, agent of B. M. Davis, transferred and pledged to Lallande the 1,000 shares of stock.
    The authority of Livaudais is sufficient.
    The transfer and pledge was made on the 9th April, 1863, and it is admitted that on the same day the President of the Mechanics’ and Agricultural Pair Association was notified of the transfer and pledge, and a copy of the act was served upon him. The Association had never issued any certificate for these shares.
    
      The7?«)’ifacias, issued by Ingram, purported to have been issued by the Fourth District Court of New Orleans, except that it was signed by T. W. Hall, who was clerk of the Fifth District Court. An unaltered blank of the Fourth District Court was used in making out the fieri facias.
    
    Shall the proceeds of the sale go to Lallande or Ingram ?
    The transfer and pledge to Lallande is valid. C. C. 3100. The pledge is a contract by which a debtor gives something to his creditor as a security for his debt.
    The share of an association is something, for it is the subject of a right.
    But the counsel for Ingram refers us to Act 1855, No. 287, and to Arts. C. C. 3123, 3129; and to 17 La. 430; 1 An. 341.
    The Act of 1855, Section 1, provides that when a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations or claims on other persons, he shall deliver to the creditors, 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. Sec. 2. All pledges of movable property may be made by private writing accompanied by actual delivery, O. C. 3123. When a debtor wishes to pawn a claim ob another person, he must make a transfer of it in the act of pledge, and deliver to the creditor to whom it is transferred, the note or obligation which proves its existence, if it be under private signature, and must endorse it, if it be negotiable.
    C. O. 3129. In no case does this privilege subsist on the pledge, except when the thing pledged, if it be a corporeal movable, or the evidence of the debt, if it be a note or other obligation Under private signature, has been actually put and remained in the possession of the creditor, or of a’ third person agreed on by the parties. * * *
    The act of 1855, and the above-mentioned articles of the Civil Code, contemplate the existence of a negotiable instrument or a claim in writing. They speak of the delivery of promissory notes, bills of exchange, stocks, obligations or claims upon other persons, or other evidences of the claims or rights pawned.
    It is the delivery the law requires, and when a thing can be actually delivered, the delivery must be made; the law we have considered contemplates the pledging of the things of which it speaks how the delivery shall be made. But it does not mean that what cannot be actually delivered cannot be pledged. Art. 3120 says, this delivery is only necessary with respect to corporeal’ things; as to incorporeal rights, such as debts, which are given in pledge, the delivery is merely fictitious and symbolical. Art. 2453 says, the tradition or delivery of movable effects takes place by their real tradition, or by the delivery of the keys of the buildings in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale, etc. C. C. 2457. The tradition of the 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. C. O. 3127. When the thing given in pledge consists of a credit not negotiable, to enable the creditors to enjoy the privilege above mentioned it is necessary, not only that the proof of the pledge be made by an authentic act, or by act under private signature, duly recorded as stated in the preceding article, but that a copy of this act shall have been duly served on the debtor of the credit given in pledge.
    
      Brief of T. A. Bartlelle, for defendants and appellees.
    
    * The evidence shows that the stock was seized and advertised for sale under Ingram’s judgment, when the sale was enjoined, and that it so remained under seizure until sold. None of the documents or records in the sheriff’s office, show any indications of the irregularities urged by plaintiff ; and a bill of exceptions was taken to the introduction of parol testimony, to contradict those records. The writ bore the seal, and was signed by the clerk of the Fifth District Court, and all the proceedings of the sheriff were in the name of that Court. But if the error existed, it did not affect the interests of the plaintiff, and afforded him no ground for injunction. Skill-man v. Purnell et als., 3 L. 494. Oakey v. Aiken, 12 An. 11. Harper v. Com. and B. B. Bank of Vicksbnrg, 15 An. 136. It would not have justified even the defendant in enjoining. Hudson v. Dangerfieldet als,.2 L. 66 ; Morgan v. Whitesides'1 Curator, 14 L. 280.
    Lallande had no right to enjoin the sale, even if die had a valid pledge on the property seized. He had merely a right of preference, and his remedy is pointed out in the Code of Practice, Art. 401; Williams et al v. Schooner Si. Stephens, 1 N. S. 417; Herbert's Heirs v. Babin el al, 6 N. S. 614; B. Antognini v. Bailey, 11 An. 275; Vanhille v. Her Husband, 5 R. 496; Gilv. Her Husband, 10 R. 28.
    But Lallande had no pledge. Nothing was delivered to him. The certificates of stock had not been issued : there was no tangible evidence of its existence, and, therefore, nothing susceptible of being pledged.
    The “ evidences of the claims ” were not, in the language of the law, delivered to the creditor. Revised Statutes 105. Civil Code, Arts. 3123, 3129. Winchester v. Ovy,s Syndic, 17L. 130. Succession of Hillisberg, 1 Au. 311. Pothier’s Cont. de Nantissement, vol. 2, p. 1179.
    Besides, the judgment Lallande is now attempting to execute, is not the one attempted to be secured by the contract of pledge, which referred to a judgment then rendered and ready to be executed ; whereas, the judgment now sought to be enforced was rendered in a suit brought long-after the execution of the contract of pledge, and could not have been the subject of it.
    Ingram became invested with a privilege on the stock by virtue of his ■seizure, and is entitled to the proceeds, unless a better right -be shown affirmatively. C. P. 722. Loze v. Dimitry et als, 7 L. 185. Payne v. Pandan, 10 An. 319, id. 728, 129. Campbell v. His Creditors, 3 R. 106. Stafford v. Dumooodie, 3 R. 276. Daflewr et als v. Girard, 11R. 193.
    The judgment, therefore, in the case of Lallande v. Davis, ordering the j>roceeds of the stock to be paid to Ingram is correct, and should be affirmed. But the judgment, in the case of Lallande v. Ingram et als, should be amended so as to allow twenty per cent, damages on the amount of Ingram’s judgment enjoined. Acts of 1833. Betts v. Mongin, 15 An. 52. Corning v. Elliott, 10 An. 753.
   Labauve, J.

On the 9th April, 1863, R. M. Davis, being indebted unto .Joseph Lallande, in the sum of $3,750 97, with interest, and cost of protest, executed through his agent, Livaudais, an act of transfer and pledge unto the said Joseph Lallande,-of the following described shares of stock, to wit:

“All and irregular, one thousand shares of twenty-five dollars each, in the capital stock of the Mechanics’ and Agricultural Fair Association of Louisiana, a duly incorporated association of this State, which have been subscribed and paid for by said R. M. Davis. ”

It is stated in the act by the agent, that to his knowledge no certificate of said one thousand shares of stock has been issued to said Davis.

George Ingram, having obtained a judgment in the Fifth District Court of New Orleans for $15,680, against said R. M. Davis, caused a deri facias to be issued, which was put in the hands of the sheriff on the 21st September, 1863, and it seems that he executed this writ, and on the 20th October, 1863, returned it by order of plaintiff, and another ;fieri facias issued on the same day. The stock had been seized under the first fieri facias, and remained under that seizure until sold under the writ-, in the case of Lallande v. Davis.

On the 17th October, 1863, Joseph Lallande enjoined the writ which the sheriff had executed, by seizing and advertising for sale the said one thousand shares of stock. The plaintiff, in his petition for an injunction, states that the sheriff, in the case of Ingram v. Davis, has seized and advertised for sale the said one thousand shares of stock in the Mechanics’ Agricultural Fair Association. That said shares are pledged to him to secure the sum of $3,750 97, and that the same cannot be seized and sold before the amount due him is satisfied, and that the said seizure is illegal; that the said seizure and advertisement are illegal, because the suit of George Ingram v. R. M. Davis was instituted before, and the judgment thereon was rendered by the Fifth District Court of New Orleans, and the writ of alias fieri facias, by which the seizure was made, and the proceedings conducted by the sheriff, was issued by the Fourth District Court of New Orleans.

The defendant, in the injunction, George Ingram, in his answer, claimed the dissolution of the injunction, with interest and damages. In the meantime Lallande obtained a judgment on his note against Davis, and under an execution issued thereon, seized and sold the said one thousand shares of stock, and took a rule upon the sheriff and Ingram, to show cause why the proceeds of said stock should not be appropriated to the satisfaction of his judgment. Ingram, in his answer, claimed the said proceeds by virtue of his prior seizure, and denying Lallande’s pledge. The rule and injunction were tried together.

The District Court dissolved the injunction, with interest, and allowed the said proceeds to George Ingram.

Joseph Lallande took this appeal.

This case involves none but questions of law.

The first presented is, whether or not Joseph Lallande has a privilege as pledgee, upon the proceeds of sale of said stock.

In all cases of pledges, the pledgee must be put in possession of the thing pledged, and if it be a claim, the evidence of the obligation must be transferred and delivered. C. C. Arts. 3100, 3119, 3120, 3122, 3123, 3129. Acts of 1855, No. 287, Winchester v. Ovy’s Syndic, 17 L. 428. Shares in stock cannot be pledged, unless they be evidenced by certificates, which must be transferred and delivered to the pledgee. In this case, there were no such certificates of stock, therefore nothing was or could be delivered to Lallande. But the appellant contends that the said stock was transferred to him and the President of the Association, was duly notified thereof, and that this transfer was good against third persons.

This position is not tenable; it was not a sale or a transfer made in that form, nor a dation en payment; the thing remained the property of the pledgor, and at his risks; the debt was not paid, nor novated; the relations of creditor and debtor still existed on the face of the act of pledge.

We are of opinion that Lallande acquired no right to said stock, either as pledgee or as transferree. The appellant further contends, that the seizure by Ingram was null, because the execution issued from the Fourth District Court, when the judgment had been rendered in the Fifth District Court of New Orleans. On that point, it appears that the execution was headed Fourth District Court, (it being a printed form of that Court) but the writ bore the seal of the Fifth District Court, and was signed by the clerk of that Court, and all the proceedings of the sheriff thereon were carried in the name of that Court. We look upon this as a clerical error, which was corrected on the face of the writ by his seal, and the signature of the clerk of that Court; but be that as it may, such informality did not regard or interest the appellant, it was a matter for the seized debtor to urge. 12 A. 11. 15 A. 136.

The appellant further contends, that having seized the said stock, he acquired a privilege on the proceeds thereof.

Subsequent to the granting of the injunction obtained by Lallande, arresting the sale of the stock seized by Ingram, he (Lallande) obtained a judgment, and on the 8th March, 1866, caused to be seized the same stock, which was sold accordingly. We are satisfied, that when Lallande seized the said stock, the same was still under seizure for Ingram who had been enjoined by Lallande from selling; besides, the appellant having, without right, prevented Ingram from proceeding on his judgment, cannot take advantage of his own wrong; for Ingram was fairly on the way to make his money, when enjoined by Lallande, who obtained a judgment, but long thereafter.

But we are of the opinion that the judgment appealed from is erroneous in allowing five per cent, interest, when the judgment enjoined bears eight per cent., and we do not think it a ease where damages should be granted.

It is therefore ordered and decreed, that the judgment rendered below bo so amended as to strike out the five per cent, interest, and that ag amended it be affirmed, the appellee to pay the costs of appeal.  