Holton & Winn v. John A. Hubbard & Co.

— 723 — The opinion of the court was delivered by Nicholls, C. J. The first question submitted to us for decision is as to the respective rights of the plaintiffs, Holton & Winn, and those of the defendant, the Hibernia National Bank, touching one thousand nine hundred and sixty-nine sacks of rice which were placed on storage in the Rio Warehouse in New Orleans by John A. Hubbard in his own name, and for which John Holmes & Co., the proprietors of the said warehouse, issued ten warehouse receipts. The plaintiffs allege that the idee in question belongs to them, that they shipped it to John A. Hubbard for sale; that their ownership has never been divested by sale; that Hubbard was without authority to pledge it; that belonging to them, they are entitled to have their ownership recognized and to have the rice delivered to them, and they so pray. The Hibernia National Bank contest plaintiffs’ claims and set up their right to hold the rice; to sell it and to apply the proceeds of sale to the extinguishment of an indebtedness of Hubbard to them. They aver that they are the holders and owners under the endorse - ment of Hubbard of the ten warehouse receipts which John Holmes & Co. issued for the same; the said receipts having been pledged to them by Hubbard to secure payment of the said indebtedness. They maintain that whatever rights plaintiffs had in the rice originally must yield to those which have become vested in themselves as holders and owners of the receipts. There is no question as to the fact that the rice belonged to the plaintiffs; that it was shipped by them to Hubbard as a factor for sale, and that it had not been sold. It had been pledged through the warehouse receipts given for the same to the Hibernia National Bank to secure Hubbard’s individual debt to them. Plaintiffs, in addition to denying generally that Hubbard was authorized to pledge the rice, aver that at the time it was pledged by him to the bank they owed him nothing. The bank contends that, independently of any question as to whether Holton & Winn were indebted to Hubbard at the time he pledged the receipts and cotton to them, they are protected as holders and owners of the receipts.in good faith under Hubbard’s endorsement from any adverse claims which could be urged. The bank’s claims are based upon the provisions of Act No. 156 of 1888. That act is entitled: “An act to define and regulate the business — 724 — of public warehouses and the issue of warehouse receipts; to define and punish-violations of this act, and to repeal conflicting laws.” We make from the act such extracts as bear upon this controversy. The third section declares that on application of the owner or depositor of the property stored in a public warehouse, the ware - houseman shall issue over his own signature and that of his duly authorized agent a public warehouse receipt therefor, to the order of the person entitled thereto, which receipt shall purport to be issued by a public warehouse, shall bear date of the day of its issue and shall state upon its face the name of the warehouse and its location; the description, quantity, number and marks of the property stored, and the date on which it was originally received in warehouse, and that it is deliverable upon the return of the receipt, properly endorsed by the person to whose order it was issued and upon payment of all charges for storage. All such receipts shall be numbered consecutively in the order of their issue, and no two receipts bearing the same number shall be issued from the same warehouse during the same year, nor shall any duplicate receipt be issued except in the case of a lost or destroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked on its face “Duplicate;” and provided that no such duplicate receipt shall be issued by any public warehouseman until adequate security be deposited with or to the order of said warehouseman to protect the party or parties who may formally hold the original receipt in good faith and for a valuable consideration. The seventh section declares that the receipts issued against property stored in public warehouses, as herein provided for, shall be negotiable and transferable by endorsement in blank or by special endorsement and delivery in the same manner and to the same extent as bills of exchange now are, without other formality, and the transferee or holder of such warehouse receipt shall be considered and held as the actual and exclusive owner to all intents and purposes of the property therein described, subject only to the lien and privilege of the public warehouseman for storage or other warehouse charges; provided, however, all such public warehouse receipts as shall have the words “not negotiable” plainly written or stamped on the face thereof shall be exempt from the provisions of this section, and provided further that- no public warehouseman shall issue — 725 — warehouse receipts against his own property in his own warehouse; but upon sale of such property in good faith, may issue to the pur - chaser his public warehouse receipt in form and manner as herein provided, which issue and delivery of the receipt shall be deemed to complete the sale and shall constitute the purchaser full owner as aforesaid of the property therein described. Nothing in this last clause shall be construed to exempt the issuer of said receipt for his own goods in his own public warehouse from complying with and being subject in all respects to all the other sections and provisions of this act. Section 8 declares that a public warehouseman who violates any of the provisions of this act shall be deemed guilty of a criminal offence and upon indictment and conviction thereof shall be fined at the discretion of the court in any sum not exceeding five thousand dollars or imprisoned in the State penitentiary not exceeding five years, or •both. Section 9 declares that nothing in this act shall be construed to apply to private warehouses or to the issue of receipts of their owners or managers under existing laws, or to prohibit public ware-housemen from issuing such receipts as are now issued by private warehousemen under existing laws, provided that such private receipts issued by public warehousemen shall never be written on a form or blank indicating that it issued from a public warehouse, but shall, on the contrary, bear on its face, in large characters, the words “ Not a public warehouse receipt,” in addition to any form of words imposed by laws heretofore in force. The tenth section declares that all laws or parts of laws in conflict with this act were thereby repealed in so far as they conflicted. At the time this act was passed there stood upon the statute books a statute bearing upon the subject of cotton press receipts and warehouse receipts, which was approved March 11, 1876, and known as Act No. 72 of that year. The title of the act was: “ An act governing the manner in which cotton press receipts, warehouse receipts, •or the receipts of other custodians of any property whatever, shall be issued in all cases where such receipts shall or may be used or pledged as collateral security for moneyjadvaneed or borrowed on faith of the property therein specified, and governing the delivery and disposal of the property for which such receipts may be issued.” The fourth, fifth and eighth sections of that act are as follows: — 726 — “ Sec. 4. Parties who may borrow money on the faith of warehouse receipts, representing property in store, shall file their affidavit with the pledgee that such property is theirs, the pledgor’s personal property, or that it is the property of some party for whom the pledgor is acting as agent, factor, commission merchant, or in any other fiduciary capacity, and that said party is justly and truly indebted to the pledgor in an amount equal to the value of the property pledged as specified in the warehouse receipt for moneys paid to him or paid by his order and for his account by the party or consignee making the pledge. The cashier of a bank or the secretary of an insurance company, incorporated or working under any law in the United States, or of this State, is hereby authorized to administer the oath contemplated under the provision of this act. Any deviation therefrom shall render the party so deviating liable for the value of the property or any excess in value over and above the amount for which it may be pledged in any manner specified in Sec. 1 of this act, and to prosecution for perjury and also for obtaining money under false pretences. “ Sec. 5. The vendor’s lien of five days privilege now allowed in commercial transactions for the payment of the purchase price shall not be affected by the provisions of this act except in case in which a warehouse receipt has been pledged as collateral for money borrowed. The holder of the warehouse receipt shall be considered and held as the actual owner of the property described in the receipt, and no clause of this act shall operate to the detriment or injury of a warehouse receipt to the extent of the value of the property specified, made and issued in accordance with and under the provisions of this act; provided, that where the factor, agent or pledgor may have wrongfully pledged in violation of this act any property, the lien of the owner shall be valid even against the third holder of the warehouse receipt. “ Sec. 8. All warehouse receipts, as by this act provided, shall be negotiable by endorsement in blank or by special endorsement in ■the same manner and to the same extent as bills of exchange and promissory notes now are.” This act (Act 72 of 1876) had been preceded by Act, No. 150 of 1868, entitled an “Act to prevent the issue of false receipts or bills of lading and to punish fraudulent transfers of property by cotton press, wharfingers and others,” from which we copy. — 727 — “ See. 2. No cotton press, wharfinger or other person shall sell or-encumber, ship, transfer or in any manner remove or permit to be-shipped, transferred or removed beyond his control any goods, wares, merchandise, grain, flour or other produce or commodity for-which a receipt shall have been given by him as aforesaid, whether-received for storage, shipping, grinding, manufacturing or other purpose, without the written assent of the person or persons holding such receipt. “ See. 6. 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 forwarding boat, vessel, railroad, transportation or transfer company, may be transferred by transfer-thereon, and any person to whom the same be transferred by delivery 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 accepted by such person, but no property shall be delivered except on surrender and cancellation of said original receipt or bill of lading on the endorsement of such delivery thereon; in case of partial delivery all cotton press receipts or bills of lading, however,, shall have the word% “ not negotiable ” plainly written or stamped on the face thereof and shall be exempt from the provisions of this-act. “ Sec. 8. All the provisions of this act shall apply and be applicable to bills of lading and to all persons or corporations, their agents or servants, that shall or may issue bills of lading of any kind or description, the same as if the words ‘ forwarded and bills of lading were mentioned in every section of this act. “Sec. 9. All receipts, bills of lading, vouchers or other documents Issued by any cotton press, wharfinger, forwarder, or other person, boat, vessel, railroad, transportation or transfer company, as by this act provided, shall be negotiable by endorsement in blank or-by special endorsement, in the same manner and to the same extent as bills of exchange or promissory notes now are. “Sec. 12. If any commission merchant, agent or other person storing or shipping any goods, wares, merchandise, grain, flour or other produce or commodity in his own name, being in the possession thereof, for or on account of another person, and negotiating, — 728 — pledging or hypothecating the cotton press receipt or bill of lading received therefor and not accounting or paying over to his principal or owner of the property the amount so received on such negotiation, pledge or hypothecation, shall be adjudged guilty of fraud, and upon indictment and conviction thereof shall be fined in a sum not exceeding five thousand dollars, or imprisoned in the penitentiary in this State for a term not exceeding five years, or both.” By the second section of an act entitled “ An act relative to pledges,” approved March 15, 1855, pledges of movable property could be made by private writing accompanied by actual delivery, and “the delivery of property ” on deposit in a warehouse passed by the private assignment of the warehouse receipt so as to authorize the owner to pledge such property. The pledge so made, withoutf urther formalities, was valid, as well against third persons as against the pledgors, if made in good faith. In addition to the statutes which we have quoted having reference to “cotton press and warehouse receipts,” there are others bearing upon the special subject of “Bills of Lading” and the effect thereof, which we should read in connection with Arts. 3145, 3146, 3152 and 3158 of the Revised Civil Code, and with Art. 3214 of the Oode of 1825, as amended by the act of 1841; in other words, with Art. 3247 of the present Oode. , Article 3214 of the Oode of 1825 • gave to eyery consignee or commission merchant, who had made advances on goods consigned to him or placed in his hands to be sold for account of the consignor, a privilege for the amount of these advances, with interest and charges on the value of the goods, if they are at his disposal in his stores or in a public wai'ehouse, or if before their arrival, he could show by a bill of lading or letter of advice that they had been dispatched to him, the privilege extending to the unpaid price of the goods which the consignee or agent shall have thus received and sold. In 1841 the article was amended so that every consignee, commission merchant or factor should have a privilege preferred to any attaching creditor on the goods consigned to him for any balance due him, whether specially advanced on said goods or not, provided they have been received by him, or an invoice or bill of lading had been received by him previous to the attachment. In 1874 an act was passed by the General Assembly entitled “An — 729 — act to enable planters, farmers, merchants, traders and others to pledge and pawn sugar and other agricultural products to merchants, factors and others, and.to confer a pledge by the transmission of the bill of lading or carrier’s receipt by mail or by the carrier.” By the first section it was enacted that in addition to the privilege now conferred by law any planter or farmer might pledge or pawn his growing crop of cotton, sugar or other agricultural products for advances in money, goods and necessary supplies that he might require for the production of the same, by entering into a written agreement to pledge the same and having the agreement recorded in the office of the recorder of mortgages of the parish where said cotton, sugar or other agricultural product is produced, which recorded contract should give and confer on the merchant or other person advancing money, goods and necessary supplies for the production of the said agricultural product, a right of pledge upon said crop the same as if the said crop had been in the possession •of the pledgee, provided that the right of pledge, thus conferred, shall be subordinate to’that of the claim of the laborers for wages and for the rent of the land on which the crop was produced. Sec. 2. When any merchant, factor, or other person has advanced money, property or supplies on cotton, sugar or other agricultural products, and the same has been consigned to him by ship, steamboat, vessel, railroad or other carrier, the said agricultural products •shall be pledged to the consignee thereof from the time the bill of lading thereof shall be putin the mail, or put into the possession of the carrier for transmission to the consignee, and the right of pledge shall be perfect, with the right of sale of said property, which shall be fully vested in said consignee with the right to appropriate the proceeds of sale to the payment of the amount due for such advances as may have been made thereon; provided, that nothing shall be so construed as to defeat or lessen the privileges of the laborers and landlords in this State for wages and rent as now existing by law. Sec. 8. All merchants, factors and others who may have a general balance of account, or any sum of money due them by any consignee (consignor?) or other person sending them cotton, sugar or other agricultural products for sale at the port of New Orleans, or any other town or city in the State, shall have a pledge upon all such property consigned or sent to them by ship, vessel, railroad or other — 730 — carrier from the time the bill of lading or receipt therefor by the carrier is deposited in the mail or given to the carrier for tramsmission, which pledge shall be perfect with the right of sale of said property, which shall be fully vested in said consignee with the right to appropriate the proceeds of sale to the payment of the amount due such consignee; provided, that nothing herein shall be so construed as to defeat or lessen the privilege of the laborers and landlords in this State for wages and rent as now existing by law. A comparison of the provisions of this statute with the law then in force shows that it was intended to modify, in favor of the parties in whose interest it was enacted, the existing laws upon the subject of pawn, and to some extent the laws upon the subject of sale. It will be seen that the right of pawn granted was made to cover a growing crop, and that under the law the contract of pawn became perfect and complete and the rights of a pledgee fully vested under circumstances and conditions different from those which would have been necessary prior to the passage of the act. The consignee, commis - sion merchant or factor, who under Art. 3247, up to that time was secured as to payment only by a “ privilege,” became secured additionally by a “ statutory pledge ” dispensing with actual delivery, and the bill of lading referred to in that article had its functions widened and extended beyoud those which were announced in the article of the Gode cited. Merchants and factors occupying the position provided for in the statute, acquired, in addition to a right of pledge, a “right of sale ” with “ the right of appropriating the proceeds thereof.” The rights and obligations of different parties as holders of “ bills of lading ” have been made the subject of special legislation at different times, as the statutes which we have cited of 1874, 1876 and 1888 will show. These rights and obligations, and those resulting from warehouse or cotton press receipts, though alike in some respects, differ materially in others. In Lallande vs. His Creditors, 42 An. 705, we were called on to pass upon the conflicting rights of the owner of certain cotton which he had shipped to his factor under a “ bill of lading,” and the Whitney Bank, which had made a loan to the factor, secured by a pledge of the “ bills of lading,” which had been forwarded to the merchant with the consignment of cotton. — 731 — For the reasons assigned, we were of the opinion in that case that the rights of the original owner were not affected by the pledge. He owed his factor nothing at the time of the pledge, and we were of the opinion that the authority of the factor extended no further-than selling the cotton, and that the pledge made by him was without effect. The rights of the parties, in that case, were determined! upon statutes prior to Act No. 156 of 1888. We think the claims of the Whitney Bank, rejected as claimants under a “bill of lading,” were much stronger than they would have been had the bank claimed under a “ warehouse receipt ” originating with Lallande as a storer of the cotton. The owner who ships under a bill of lading and hands the bill to his factor may be said to have-more or less connection with that instrument when it is subsequently-advanced by a third party as a basis of rights predicated by him upon-possession of the bill by the factor, particularly if the delivery of the property is directed to be made to the factor or his order. If after the cotton has been received and the bill of lading therefor has fully carried out its purpose of delivery, the factor stores the cotton,, takes a receipt for the same in his own name from the warehouse- and makes use of the receipt as a basis for credit, the warehouse receipt evidences a transaction with which the owner is disconnected. It is an original transaction between the factor in his own name and the proprietors of the warehouse to which the owner is not “a party ” though he have an interest in the subject matter. “ No' one (says Art. 1889 of the Civil Code) can, by a contract in his own name, bind any one but himself or his representatives, and it is clear-that any contract by which one person attempts to divest another of his property without the owner’s consent, express or implied, or-through due process of law is without force. In France, under Art. 2279 of the Code Napoleon, the possession and title of movable-property go together (“ Possession vaut titre”). That doctrine has never prevailed here in the past and it certainly was not the intention of the lawmaker in enacting Act No. 156 of 1888 to introduce it now. Counsel’s argument leads up directly to that result if the general public be authorized to contract with respect to property covered by warehouse receipts with holders of such receipts, and to be thoroughly protected (if not in bad faith) in their contracts upon a presumption juris et de jure that the holders of the receipts are owners of the property, or if not, that they have all the absolute powers732 of owners over it. If a factor, authorized in point of fact to sell or to pledge the property of his principal, makes use of a warehouse receipt in order to vest rights in the pledgee or purchaser with -whom he contracts, it may well be that the receipt may carry the property or the possession of the property as against the attaching creditors of the owner, or as against parties claiming rights under other contracts made by the factor in regard to the same property (C. C. 1922, 1923) ; but it was never contemplated, we think, by the lawmaker that the mere fact that a factor should be the holder of a warehouse receipt taken out by himself in his own name, should confer upon parties the right to deal with a factor, and to absolutely ignore, under full protection, the relations which he bears to the •property and to its owner. We can not for an instant believe that the General Assembly would enact a law which would enable parties to perpetrate fraud. The "rule has always been, and it is now, that one person can not pledge the property of another, unless it be with the express or implied consent of the owner (C. C. 3145), and that when tacit consent is depended on it must be inferred from circumstances so strong as to leave no doubt of the owner’s intention (C. C. 3146). The law cites as illustrations of cases wherefrom consent may be inferred, the presence of the owner when the contract was made or the delivery -of the object pledged by the owner himself to the pledgee. The articles of the Oivil Code upon that subject have not been repealed. The mere fact of a transmittal of movable property by its owner to a factor for sale furnishes no reason to the public to suppose that the owner authorized the factor to pledge it, and particularly to pledge }t for his own debt. Defendants say that the plaintiff knew that the rice when received would be placed on storage. That may be true, but it by no means follows from that they knew it would be placed in a “ public warehouse,” or if placed in a public warehouse that the factor would take out “ negotiable” warehouse receipts for the same. The receipts upon which defendants declare read as follows: “ Negotiable warehouse receipts issued by John Holmes & Co., Public Warehouse Proprietors under Act 156 of 1888. “ Office 128 Tchoufitoulas St. • “ No. 6931. New Orleans, Dec. 18, 1893. “ Received on storage from John A. Hubbard in the Rio Warehouse, .deliverable only on return of this receipt properly endorsed. — 733 — “Mark. articles. “ Car 18,144. Two hundred and eight sacks rough rice. “ (Signed) John Holmes & Co., “ (Endorsed) John A. Hubbard.” The receipts in this case do not read “ deliverable to John A. Hubbard or order,” but read “ deliverable only on return of this receipt properly endorsed.” In Lallande vs. His Creditors, 42 An. 711, the court alluded to the fact that the “ bill of lading ” declared on in that ease called for a delivery to “ Lallande ” and not to “ Lallande or order.” The third section of Act No. 156 of 1888 directs that the receipt under thatact should be “to the order of the person entitled thereto,” and that it should state that the property covered by it was deliverable upon the return of the receipt properly endorsed by the party “ to whose order” it was signed, and the seventh section declares that receipts issued against property “ as herein provided for,” shall be negotiable, etc. While we notice this phraseology of the receipts, the views we have-expressed do away with the necessity of our commenting upon it. Defendants contend, however, that granting that their first proposition was not true, yet the rights which they advance in this case are none the less fully sustained, because at the time that Hubbard pledged the rice to them, Holton & Winn were .indebted to him, and therefore, as a factor holding in his possession property of the principal consigned to him for sale, and to whom the principal was indebted, Hubbard had the legal authority and right to make the pledge he did. We Deed not examine into this question, nor determine what the rights and obligations of parties would be, if, in point of fact, plaintiffs were indebted to Hubbard at the time the pledge was made, for the reason we do not find, as a fact, that they were so indebted, but, on the contrary, that Hubbard was at that time indebted to them. Defendants finally claim that the plaintiffs have ratified Hubbard’s pledge of the property, by accepting from him, in satisfaction of their claims against him, a transfer of certain stock of the Ivens Manufacturing Company. The record does not bear out that contention. The transfer mentioned was a desperate effort by the plaintiffs to obtain from Hubbard (then on the point of making a surrender of his property) some security for the payment to them of the balance then due them by him on account. The stock — 734 — was worthless, and it was never contemplated by any of the parties that plaintiffs should surrender any of their rights. As said by this court in Crossley & Sons vs. Louisiana Savings Bank, 38 An. 87: “ Such a transaction would have implied insanity.” (See also Zeigler vs. His Creditors, ante, p. 144. We now come to the reconventional demand set up by defendants. They sue as the holders and owners of a note dated 1st March, 1893. This note was discounted by the Hibernia National Bank under Hubbard’s endorsement. It was shown to have been, in fact, a firm note, though not so appearing on its face. (Reynolds vs. Swain, 13 La. 194.) Hubbard, who was to make advances in 1893 to the plaintiffs, informed them that he could utilize their note for that purpose — in himself obtaining money by its discount. It was to assist him in so doing that the note was executed and delivered. It was negotiable in form and discounted by the bank, free from all equities between the original parties. When it was about to mature, Hubbard (the endorser) took it up by his check, drawn on the bank itself. Immediately thereafter, in conformity to a prior understanding between himself and the bank that this should be done, the note was left with the bank as collateral security to secure the payment of a new note executed by Holton & Winn, bearing date December 16,1893, for the sum of five thousand dollars, payable sixty days after date to the order of John A. Hubbard, which the bank discounted. It is claimed by the plaintiffs that when Hubbard drew his cheek on the bank for the first note, and that cheek was by them paid, the note itself was paid and extinguished. That Hubbard being at that time their debtor, and not their creditor, his leaving the note with the bank as a collateral was simply leaving with them a useless piece of waste paper, as it represented no indebtedness due by them to Hubbard. The trouble with that contention is that Hubbard, when he drew his check on the bank, was an endorser upon the note, and that when after the check was drawn the note was replaced with the bank as collateral, the first note was not yet overdue; that is to say, the days of grace had not yet expired. When Hubbard offered it de novo (this time as collateral instead of for discount) the bank was justified in accepting it as such, and took it free from the equities in the absence of special circumstances which would have cut them off. None such are shown. The effect of the payment by Hubbard, through his check, was to replace in him the title to the note, which — 735 — had passed to the bank by its discount, under his endorsement, and enabled him to reissue it, so far as third persons were concerned, as if it had been transferred by him to them for the first time. Lanata vs. Bayhi, 31 An. 232; Millaudon vs. Colla, 15 La. 213; Saul vs. Nicolet’s Executors, 15 La. 246; Wiggins vs. Flower, 5 Rob. 406. It is true that the fact that a transfer had been made at that late date might have been advanced asa circumstance calculated to throw doubt as to the good faith of a party accepting it, then either as owner or by way of security, had such an issue been made and supported, but per se it does not establish bad faith. In Woods’ Byle on Notes and Bills (8th edition)., page 170,"' it is stated as a rule of the commercial law that a bill or note assigned in due time on the day of payment is to be considered as assigned before it is due, and Goodpastor vs. Voris, 8 Clarke (Pa.), 334, is cited in support of the position that a note is not overdue until the days of grace have expired. In Pike vs. Smith, 11 Mass. 38, it was held that a note endorsed on the last day of grace was taken dishonored, the court citing Staples vs. Franklin Bank, 1 Met. 43; Whitwell vs. Bringham, 19 Pick. 117; Ayer vs. Hutchins, 4 Mass. 370; Sargent vs. Southgate, 5 Pick. 312; Portland vs. Maine Bank, 11 Mass. 204. The defence set up in Pike vs. Smith was usury. We think the rule announced in Goodpastor vs. Yoris is that generally accepted. Hubbard having both notes in his possession, the bank had the right to accept the second note as the original obligation, with the first note as collateral, or the first note as the principal obligation and the second as collateral (Ingram vs. Richardson, 2 An. 842). We think plaintiffs entitled to protection against the second note. For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the Civil District Court be annulled, avoided and reversed in so far as it rejects plaintiffs’ demand and prayer to be decreed the owners of the nineteen hundred and sixty-nine sacks of rice referred to in plaintiffs’petition, or subordinates their rights of ownership to the same to any claims or demand upon the same; and It is now ordered and decreed that the plaintiffs, Holton & Winn, be and they are hereby declared and recognized as the owners of the nineteen hundred and sixty-nine sacks of rice referred to in their petition, stored by John A. Hubbard in the Rio Warehouse, — 736 — in New Orleans, and that they be delivered to them free from any claim upon them by the Hibernia Bank, and that the claims, pre - tensions and demands of the Hibernia Bank in, to or upon said rice be and the same are hereby rejected. It is further ordered, adjudged and decreed that the Hibernia Bank do have judgment against, and recover from the plaintiffs, William L. Holton and Thomas H. Winn, in solido, the sum of five thousand dollars, with interest at eight per cent, per annum from 16th December, 1893, until paid, but that no execution issue upon the judgment herein in their favor until the note executed by Holton &Winn, the 16th day of December, 1893, for the sum of five thousand dollars, with interest thereon at eight per cent, from maturity, payable sixty days after date to the order of Johu A. Hubbard and endorsed by him, which is referred to herein and was discounted by the Hibernia Bank under the endorsement of said Hubbard, be produced and surrendered, or until the plaintiffs are fully protected and held harmless against the future appearance of the same.