author: Breaux, J. Fenner, J.

text:
    No. 10,837.
    City of New Orleans vs. O’Neil et als.

      1. The ordinance under wliicli the Oity claims a license tax from every individual carrying on the business of master builder is not contrary to Article 206 of the Constitution.
    2. The master builder or contractor who employs workmen in executing his contracts is not exempt from the payment of a license tax.
    3. To be exempt, the training of the mechanic and his skill must be applied by himself, with his own "hands, in executing his contract.
    APPEAL from the Second Oity Oourt of New Orleans. Lavillebeuvre, J.

      W. B. Sommerville, Assistant Oity Attorney, and Oarleton Hunt, City Attorney, for Plaintiff and Appellant.

      B. R. Forman for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The city sued to recover a license tax from the following named defehdants:

Charles Garvey, Muir & Fromberg, T. O’Neil, Albert Thiesou and J. R. Turk, claiming that they were each liable as “ master builders.”

The defendants answered that they were following a mechanical pursuit, as carpenters, during the year for which license is demanded.

They also alleged that they are exempt, under Article 206 of the Constitution, from the payment of a license. .

There is an agreement of record in accordance with which these cases were submitted in one transcript; the petition and answer in one case were to be copied and to be considered the same in all, with the change of the name and year.

In carrying out this agreement the petition in one case is considered the same against all the defendants, with the change of the name and year.

The facts in these cases are not similar to those in the case of Bagman & Son, just decided, and therefore they are separately decided. The record discloses that the defendants have been in business since a number of years.

That they are carpenters; they contracted for building houses and other structures; they employed other carpenters; they laid off the work; used the square, the spirit-level and the straight-edge, and as the building progressed in the construction, they used the plumb-line ; they superintended.

The following is part of the evidence in each case:

“ Q. You simply take contracts for building?
“A. Yes, sir.
“ Q. And superintend?
“A. Yes, sir.
“ Q. You have, probably, several of them at one time?
“A. Well, for five years I have had many; for the- last three years I have not had so much.”

The affirmative statements of the witnesses, with reference to their occupation as “master builders,” are followed by the answers summarized as above.

These witnesses are sincere in their defence and in their testimony.

Being mechanics, they candidly claim exemption.

The exempting clause of the Constitution and the jurisprudence on the subjeetmust prevail in determining whether they are exempt.

The.exemption does not include all mechanics without regard to their pursuits. A dividing line, we must observe, is drawn.

The Constitution exempts those engaged in mechanical pursuits.

In Tax Collector vs. Conner, 42 An. 788, the defendant was a contractor, or master builder. A bricklayer himself, he employed others to do the mechanical part of the work, and he superintended. As contractor, or master builder, he was not exempt.

The Constitution declares that persons pursuing a trade are liable to a license tax, except those engaged in mechanical pursuits.

In City of New Orleans vs. Timothy Bayley, 85 An. 345, the defendant was a plasterer, worked at his trade with his own hands, and when executing a contract and having more work than he could conveniently do, employed other plasterers to assist him. The court decided that he was engaged in a mechanical pursuit, and that the employment of assistance in his occupation did not alter the nature of his occupation. The theory of the decisions is to exempt, protect and encourage the mechanic who actually works at his trade.

The testimony in the pending cases does not disclose that the defendants “ worked at their trade with their own hands.”

If the article applies to them, it would, equally exempt the masters,, the contractors and even the architects, for they also have occasion frequently to use the plumb-line, the square and the spirit-level.

It was necessary, in complying with the Constitution, to interpret the exempting clause and draw a dividing line, otherwise all trades would be exempt, although the article authorizes and directs the General Assembly to impose a license on all trades except those especially enumerated.

There are no trades but what at times, in following them,' the pursuit is partly mechanical. The artist, the photographer, and others,, at times follow a mechanical pursuit.

They are not exempt'from the payment of a license.

The defendants argue that the exemption of the laborer covers every man who labors with his own hands, and that the law maker, after exemptingthe laborer, went further and included the mechanic, who followed mechanical pursuit.

Without the additional exempting phrase, specially including the mechanic, he would not have been exempted at all.

The word laborer” does not include the mechanic.

The possibility suggested by defendants’ counsel, and'illustrated by him for the purpose of showing that ■ carpenters, plasterers, plumbers, slaters, may have to pay “ two or three times over,” is exceedingly remote.

In the first place, those who work at their trades are exempt, and the illustration can not apply as to them.

In the second, objection to the method of' graduation is not made in the pleading, and in any event does not make it possible to decide as exempt trades and occupations not exempted under Article 206 of the Constitution.

The General Assembly graduates the of license tax. ’ It is not in the power of the courts to lay down rules for graduating license tax; 35 An. 76; 36 An. 94; 37 An. 42; 38 An. 397; 40 An. 463.

The master builder and contractor not being exempt, the city is authorized to enforce the ordinances imposing license tax.

The annual gross receipts ” of each defendant were more than $12,000, except those of J. R. Turk for 1890, which were more than $10,000 and less than $12,000.

It is, therefore, ordered, adjudged and deoreed that the judgment appealed from, in so far as relates to the defendants herein named,. be annulled, avoided and reversed, and it is now decreed that there is judgment for plaintiff against each of the following named defendants, viz.:

Charles Garvey, Muir & Fromberg, T. O’Neil and Albert' Thieson, for the sum of $285, with interest, as claimed, and against the defendant, J. R. Turk, for the sum of $270, with interest, as claimed.

Appellees to pay costs of both courts.

On Application por Rehearing.

Fenner, J.

In disposing of this application, which is made in behalf of the last defendants, O’Neil and others, we have to say:

1. The admissions of record conclusively establish the amount of the gross receipts on which our judgment is based.

2. In relieving Lagman & Son and in holding the others bound, we have simply applied the rule of stare decisis, as established in the cases heretofore decided, viz.: City vs. Bayley, 85 An. 545; Tax Collector vs. Conner, 42 An. 787.

They are cases which require a firm adherence to the rule, and we see no reason to disturb our former rulings.

8. If hardship results from grading licenses according to “gross receipts,” it is nevertheless the law, and relief must be sought from the Legislature.

4. Absolute justice is unattainable in tax laws. We are not responsible for any inequity which may result from exempting Lag-man & Son, while taxing the other defendants. The exemption is made by the Constitution.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J. Fenner, J. McEnery, J.

license: Public Domain

text:
    No. 10,856.
    The State ex rel. A. S. Coltharp vs. Henry B. Holmes et al.
    1. Unless it is made evident that jurisdiction lias been usurped, the court will not exercise its prohibitive authority.
    •2. The successful claimant lias a right to the emoluments and perquisites where-an incumbent illegally holds possession by means of judicial proceeding.
    3. An allegation predicated upon that right, accepted by the Court of Appeals as sufficient, in a matter of jurisdiction, will not be declared insufficient and the. proceeding treated as absolute nullity, by issuing a writ of prohibition.

      y^PPLICATION for Prohibition.

      F. P. Poohé, Thomas P. Clinton and Chas. J. Boatn.er for the Relator.

      W. H. Rogers, Attorney General, and J. G. Hawkes for the Respondents.
   The opinion of the court was delivered by

Breaux, J.

The State ex rel. H. B. Holmes brought suit in the Parish of Madison, before the Eighth Judicial District'Court, against A. S. Coltharp, under the intrusion into office act, contesting his right to hold the office of Commissioner, for that parish, on the Board of Commissioners, of the Fifth Louisiana Levee District.

He avers in his petition that he was commissioned on the 10th day of July, 1890.

That he duly qualified by taking the oath of office and fulfilling every requirement o f the law, and is now and has been since said appointment ready and willing to serve in said office, to which he has a de jure right.

That the defendant usurps, intrudes into and unlawfully holds, and exercises the duties thereof.

He also avers, that the perquisites and emoluments of said office, during the term of said appointment, expiring about the 1st May, 1892, are worth annually about $60.

The defendant in said suit, the relator in the application for a writ of prohibition, filed a peremptory exception of no cause of action. It was sustained by the District Court and the suit was dismissed.

The relator, Holmes, appealed to the Court of Appeals, Second Circuit.

The defendant, Coltharp, moved to dismiss the appeal on the ground that the Appellate Court was without jurisdiction, ratione material, for the reason that the amount in dispute was less than $100.

The motion was overruled in March last, and the judgment of the District Court reversed, and the case remanded for trial.

In May the trial was stayed, by a rule to show cause, issued in matter of the application under consideration.

For the purpose of the trial before the District Court, also on ap • peal, the plaintiff in exception admitted the verity of relator’s petition, not one of the allegations of which is traversed.

A question of law was presented.

The plaintiff, in exception, now contends that by referring to Section 3 of Act 44, of 1886, it will be found that no fixed salary, either per month or per annum, is attached to the office of commissioner on the board of said Levee District, the provision on the subject being as follows:

“The commissioners shall receive a salary of $4 per day each during the period they are in actual attendance upon the board, and 10 cents a mile, going and coming, to be paid out of the funds of the Levee District; * * * and a like salary shall be paid for each day the president and other commissioners shall serve in supervising the location, construction and repairs of levees, as now provided by said board.”

The presumption sought to be drawn, that if the commissioners be not called upon to supervise the location, construction and repairs of any levee, during any given year, the emoluments would be considerably less than §60 per annum, can not affect the jurisdiction and prevail against the admission made by the plaintiff in exception, for the purpose of the trial of his exception.

The issue resolves itself into a question of time.

If the emoluments and perquisites per annum should date, under the allegation of the petition from December, 1890, i. e., the date suit was brought, and not from July, 1890, i. e., the date Holmes was commissioned, the Oourt of Appeals was without jurisdiction; but if, from the latter date, it properly exercised its jurisdiction.

Only when it is made evident that jurisdiction has been illegally assumed, this court will interpose its prohibitive authority.

With reference to the question raised about the right to recover any fees or emoluments at all, and the consequent insufficiency of an allegation predicated on that right, to establish jurisdiction, we find an answer in two cases in which it has been decided that, during the contest, the contestant has no right to the fees and emoluments of the office, although no service has been rendered by the contestant, who was not permitted to discharge the functions of the office. 15 An. 239; 10 An. 297.

We do not find cause to set aside the decree of the Court of Appeals, or to treat it asa nullity, by granting the writ prayed for.

Relator’s application for a writ of prohibition is rejected, and his; petition is dismissed.

Concurring Opinion.

Fenner, J.

The case involves the question of the jurisdiction of the Court of Appeals, over an appeal taken to that court in a case involving the title to the office of member of the Board of Commissioners for the Fifth Louisiana District.

In such cases the jurisprudence is uniform, that the test of appellate jurisdiction is the pecuniary value of the office, which means the-amount of salary, fees or emoluments attaching thereto. State ex rel. Buckner vs. Jastremski, 38 An. 110; State ex rel. Newman vs.. Hayler, 32 An. 1135; Hubert vs. Auvray, 6 La. 598; 21 An. 18, 108, 743; 22 An. 49.

The petition in the suit alleged that Holmes, the plaintiff, “was on the 11th day of July, 1890, duly commissioned by the Governor * * * and has duly qualified under said commission by taking the oath and fulfilling every requirement of the law, * * * and is now, and ever since said appointment has been, ready and willing to serve in said office. Also, “ that said Ooltharp, without any legal right thereto, unlawfully possesses said office and refuses to deliver up the same, although amicable demand has been made for the same.”

The petition contained the further averment “ that the perquisites of said office during the term of said appointment, expiring about May 1, 1892, are worth annually about $60.”

This allegation is not contradicted in any manner. The case in the District Court was met by an exception of no cause of action, which admitted the allegations of the petition. From a judgment-sustaining that exception, the appeal was taken to the Circuit Court of Appeals, and the question before us is whether the court exceeded the bounds of its jurisdiction in taking cognizance of the appeal.

If the perquisites of the office during the term in contest exceeded $100, the Circuit Court had jurisdiction.

It is claimed, however, that the petition does not fix the date at-which Holmes qualified. The allegation is that he “ had duly qualified by taking the oath and fulfilling every requirement of law.”' The law required that he should qualify within thirty days after his appointment, under penalty of vacation of his office. Act 19 of 1878; State ex rel. Lemonnier vs. Beard, 84 An. 276.

If he fulfilled this requirement as alleged, he qualified before August 11, 1890, and the interval between this date and the expiring of the term would be more than twenty months, and the perquisites at $60 per annum would exceed $100.

As matter of fact, the pleadings and admissions in Goldman vs. Gillespie, decided by us at this term, and to which we are referred by relator, indicate that he had qualified before August 16, 1890, ■when that suit was filed.

It is urged, however, that the nature .of the perquisites allowed by the law, being only the per diem for actual attendance at meetings of the board, and for actual service in supervising levees, is such as to exclude Holmes from any interest therein when he has not actually rendered the services. This objection is disposed of by two cases, in which it was held that fees earned by the de facto incumbent of the offices of parish recorder and register of the land •office, being only fees for actual personal services performed, were recoverable by the successful contestant. Sigur vs. Crenshaw, 10 An. 297; Petit vs. Rousseau, 15 An. 240.

We do not now determine that Holmes, if successful, would have the right to recover these perquisites; but only that his asserted right thereto is serious and plausible, and that the jurisdictional allegations based thereon can not be regarded as so manifestly fictitious and unfounded that they can be disregarded.

Finally, it is urged, the Act 44 of 1886 provides that the commissioners shall hold “ during the term of the executive appointing them, and until their successors are appointed, qualified, and inducted into office;” whence it is claimed that Holmes’ title to the perquisites could not begin until he had been “inducted into office.” But this claim does not lie in the mouth of relator, who restrained Holmes from taking any steps to induct himself, by a judicial injunction. If, in the final decision of this contest, it should be held that Holmes’ title to the office was good (on which point we insinuate no opinion), the remarks of the court in Petit vs. Rousseau would apply: “ The defendant ought not to be permitted to derive any advantage from a contest which he provoked, and in which the .result proved he was in the wrong. Were a contrary doctrine to prevail, it would be the interest of the incumbent in every lucrative' office to contest the election of his successful opponent. We think that justice forbids that the contestant should derive this advantage from his position over his adversary. He ought to account to plaintiff for the emoluments which he has received pending the litigation.” Holmes’ failure to be inducted being not his fault, but owing to the act of relator, the latter could not be listened to in urging it.

We are bound to respect the discretion of the Circuit Court in determining questions affecting its own jurisdiction, and should not annul its judgments except on the clearest possible showing of manifest error. Such showing is not made in this case.

It is a satisfaction to know that this’, conclusion does 'not determine the contest, but only reinstates it for determination on the merits.

Dissenting Opinion.

McEnery, J.

The Court of Appeals has no jurisdiction ratione materise of this case.

- This court has enunciated the following principle, and until this case has, invariably, without turning a hair breadth [from it, affirmed it.

Jurisdiction must be tested by the pecuniary amount involved, as shown by the pleadings, and as appearing from the nature of the action, and not by the jurisdictional allegations or affidavit of the appellant.

The substantive allegations in the pleadings, not the alleged opinion of litigants, are to be considered in all questions of jurisdiction.

No allegation and no affidavit can create an appealable amount of interest in a litigation, which from its very nature and essence can not involve a pecuniary amount in dispute equal to the lower limit of the jurisdiction of the appellate tribunal. Buddig vs. Baldwin, 38 An. 394; Hite vs. Hinsel & Tallieu, 39 An. 113; Schwartz vs. Firemen’s Ins. Co., 41 An. 404.

In the last case cited we said: In construing jurisdictional allegations we must be guided by the real pecuniary interest affecting the parties to the litigation as disclosed by the pleadings taken as a whole, and not by strained allegations of pecuniary interest which could never be judicially ascertained and determined.”

This is not a suit for fees or salary of an office, and in this respect differs materially from Sigur vs. Crenshaw, 10 An. 297, and Petit vs. Rousseau, 15 An. 239.

This suit is under the intrusion into office act, in which the plaintiff, Holmes, seeks to recover an office, to which no fixed fees or salary are attached.

The law creating the Fifth Levee District allows a per diem to the commissioner when he attends to the session of the board. The present incumbent may not attend any session of the board, and may not earn his per diem. Holmes, therefore, if successful, could only recover, if permissible, money for the number of days for the personal attendance of the present incumbent.

This court can have, under the present proceedings, no means of ascertaining the number of days that the present incumbent may attend the session of the board, and the amount of money he may earn.

Holmes prays to be put in possession of the office, with the revenues thereof. What are the revenues? We do not know. Holmes did not know when he brought his suit, for he does not ask judgment for them, but for reservation for his right to sue for them — when? When he shall have secured possession of the office and ascertained the amount due the present incumbent for personal attendance.

Under the authority quoted, Holmes’ allegation that the office was. worth about $60 a year, could not give any jurisdiction in the face of the law under which he claims, showing that it is utterly impossible to fix any determinate sum. On what basis was the jurisdictional allegations made? Why for $60 per annum? It could have been for $1460 just as well, conjecturing and guessing that the board would sit every day in the year and the commissioners would be in attendance. If it is worth $60 per annum, from what date is to be calculated the commencement of Holmes’ service? Surely from the. date he filed his suit to gain possession of the office. This would bring the amount below the lower limit of the jurisdiction of the Court of Appeals.

It must be borne in mind that there are no fees or salary attached to the office, which the present incumbent would have to surrender to Holmes. It will not be maintained that the present incumbent would have to surrender to Holmes the amount he collected for personal attendance. Legislators are paid per diem. Who ever heard of a successful opponent receiving the per diem of the ousted member? The present incumbent is a de facto member of the board, and under no circumstances would be required to pay to Holmes his per diem for actual attendance on the sessions of the board.

There is a wide difference between a salary or fees, and pay per diem.

Suppose Holmes should eventually be successful, and sue for the amount received by the present incumbent for his personal services; could he obtain a judgment? No; the answer would be that the per diem is paid only for personal attendance. Holmes could not say that he attended the sessions of the board, and he could not assert, if he had been admitted to membership of the board, that his attendance would have been the same as that of the present incumbent. A salary goes on whether the officeholder is sick or well, present or absent; fees accumulate to the office and are a part of it, whether the incumbent is sick or well, present or absent.

The very nature and essence of the case shows that the Oourt of Appeals was without jurisdiction. Therefore the jurisdictional allegations of the plaintiff could not give the court jurisdiction.

Section 2 of Act 44, of 1888, is decisive of the whole question. This section recites that the commissioners appointed shall hold their offices until their successors are appointed, qualified, and inducted into office.

The present incumbent was inducted into office in August, 1888; he is entitled to hold the office until his successor is inducted into office. He is, therefore, under the act, not an usurper, and is entitled to the per diem, and perquisites, if there were any, until his successor is inducted into office, that is, until he is in full possession of the office.

Under the act creating the Fifth Levee District, Holmes could not claim any sum of money until he had been, inducted into office and given his pei’sonal attendance at the sessions of the board. That the Oourt of Appeals has no jurisdiction ratione materiee of the appeal, is to my mind too clear for argument.

I dissent.

Justice Watkins concurs in dissenting opinion.


author: Breaux, J.

text:
    No. 10,858.
    The State ex rel. F. L. Maxwell vs. Jas. R. McDowell et al.
    1. The court will not interpose its prohibitive authority, and issue a writ of prohibition, in a case in which relator fails to establish that jurisdiction has been usurped.
    2. The correctness of a statement'of facts respecting the amount which gives jurisdiction will be accepted, unless it be [made clearly evident that an error has been committed.
    y^PPLICATION for Prohibition.

      F. F. Foche, Thos. P. Clinton and Chas. J. Boatner for the Re* lator.

      W. H. Rogers, Attorney General, and J. G. Hawkes for the Respondent.
   The opinion of the court was delivered by

Breaux, J.

The defendant, in the suit of the State ex rel. James R. McDowell vs. F. S. Maxwell, brought before the District Court, parish of Madison, under the intrusion into office law, questioning his right to hold the office of commissioner for the parish of Madison •on the board of the Fifth Louisiana Levee District, filed a peremptory exception of no cause of action, which was sustained by the District Court and the suit dismissed.

From that judgment plaintiff appealed to the Court of Appeals, Second Circuit.

The defendant and appellee moved the court to dismiss the appeal on the ground that the Appellate Court had no. jurisdiction ratione materise, for the reason that on the face of the pleadings the amount in dispute was less than $100.

His motion was overruled, judgment was rendered reversing the judgment appealed from and remanding the case for trial.

After the judgment had been rendered the relator, Maxwell, applied to this court for a writ of prohibition directed to James R. McDowell, relator, in the original action, and to the District Judge, to restrain them from proceeding in the execution of the judgment of the Court of Appeals.

The Court of Appeals has jurisdiction when the matter in disputo or the funds to be distributed exceed $100, exclusive of interest.

In the statement of the case, the Court of Appeal's found that the-amount involved is more than $100. That the case is within its. jurisdiction.

After a careful examination of the evidence upon which the statement is predicated, we discover no reason to question its correctness..

On the further grounds stated, in the case State ex rel. Coltharp. vs. Holmes ex rel., just decided, we decline to issue the writ.

Relator’s application is rejected and his petition is dismissed.

Justices Watkins and McEnery dissenting.


author: Watkins, J.

text:
    No. 10,725.
    D. R. Carroll vs. George W. Bancker et al.

    1. Act 64 of 1876, amending Article 163 of the Code of Practice, confers jurisdiction on the courts of this State to enforce a lien or privilege on property-within, their jurisdiction, notwithstanding the domicile of the debtor, or owner, be elsewhere, but the effect of the decree must be restricted to the property that is proceeded against, or its proceeds.
    2. It is no consequence that the property, itself, has not been seized. It is sufficient if it appears to be an action quasi in rm,-and has for object to define the status of designated property, or to determine a lien, or privilege, on it.
    3. It is permissible, under the law and jurisprudence, for a citizen of a parish different from the one in which hois cited, to appear and answer to the merits, and by thus voluntarily submitting himself to the jurisdiction of the court, the judgment therein rendered is not coram ■nonjudice.

    4. Whatever may have been the course of judicial opinion under C. P. 288, and E. C. C. 2705 and 2509, it is clear that, under the provisions of Act 66 of 1874, and Act 44 of 1882, amending same, the lien and right of pledge of a factor who makes advances of supplies to a planter is subordinate to the lien of the lessor who. rents the land, on the crops produced thereon; and the right of sale which is conferred upon the factor, coupled with the right to appropriate the proceeds thereof to the satisfaction of his claim, can not be sc construed as to defeat, or lessen, the privilege of the landlord for rent.
    5. When the.“ effects” of a lessee consist of agricultural products,,like sugar and molasses, and same have been pledged under the act of 1874, to a factor for advances of plantation supplies, and afterward consigned to him for sale, his ■ right to appropriate the proceeds is thereby restrained and subjected to the lessor’s claim for rent, and same are subject thereto in the factor’s hands.

      PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      This opinion was omitted by error in the report of the case, and is now published to supply the omission. — Tub Repoeiek.

   Watkins, J.

The object of this suit is the enforcement of a lessor’s lien upon the proceeds of sugar and molasses produced and manufactured on the leased premises of plaintiff, and alleged to be in the possession of the defendant, Hernandez.

The claim of the plaintiff is that he leased to the defendant, Bancker, for the year 1886, his certain sugar plantation in the parish of St. Martin, for the price of $2500, which became due on the 10th of November of that year. That to secure the payment of the rent, he had a lien and privilege on the crops produced on the leased premises, and as a part of the crops on which his lien rests, he specifies fifty-two hogsheads of sugar and forty-nine barrels of molasses, worth the sum of $2500, that his lessee shipped to Hernandez ; and he avers that same, or the proceeds thereof, are in his possession.

A writ of sequestration was obtained, a seizure thereunder demanded by the sheriff, and a denial made on the part of Hernandez of his possession of either the products specified or the proceeds thereof. A rule was taken to traverse the truthfulness of his statement, and some testimony was reduced to writing, but the rule was voluntarily discontinued by plaintiff, and on the same date he filed a supplemental petition, in keeping with the averments of the original petition, making Hernandez a party, and praying a judgment against him for the crops produced or their proceeds.

On the same date counsel for Hernandez filed an exception and answer — both being incorporated in the same paper.

1. No cause of action; no lawful ground for sequestration; petition too vague and indefinite, and the like.

2. That, at the time of demand being made on him he had not, nor has he since had, any sugar or molasses belonging to the defendant nor any proceeds thereof. But he avers that he furnished Bancker with supplies for the cultivation of his crop in 1886, as will be shown by his duly recorded act of pledge, which is annexed and made a part of his answer; and that when said crops were sold he applied the proceeds of sale to his account, as he had a right to do.

He subsequently excepted,further, that he cannot be thus proceeded against, on 11 3 ground that there is no suit pending on the original petition against Bancker; and he being a resident citizen of the parish of St. Martin, and “not having voluntarily appeared” therein, and there having been no seizure of his property, the Civil District Court is without jurisdiction of the matter.

These exceptions were sustained, to the extent of requiring plaintiff to amend the second time, and this was accordingly done. To this amendment Hernandez filed an answer, pleading a general denial; and shortly afterwards, Bancker appeared and filed a similar answer and denial.

This analytical statement of the pleadings was necessary, in order to clear the case of some confusion into which the statement of counsel had involved it.

This case comes clearly within the principle of Act 64 of 1876, which amends the 163d article of the Code of Practice, and confers jurisdiction upon the courts of this State to enforce a lien or privilege on property within its jurisdiction, notwithstanding the domicile of the debtor be elsewhere — the operation and effect of the judgment being limited to the value of the property that is proceeded against. '

It matters not that the property itself has not been actually seized.

Such a suit is substantially an action in rem, and has for object to define the status of the property, and to determine an apparent lien upon it. See Young vs. Upshur, 42 An. 362, and authorities cited.

In this class of cases we have frequently held, that our courts have jurisdiction to bind the citizens of other States, and to hold them by their judgments, to the extent that their property domiciled here maybe affected thereby. Young vs. Upshur, 42 An. 362; Duruty vs. Musacchia, 42 An. 357.

Independently of these considerations, the suit is chiefly directed against Hernandez, who is a resident citizen of the parish of Orleans, and is to be affected by the decree; and it is not doubted that Bancker has parted with possession of the crops that are sought to be reached thereby in the hands of Hernandez.

Plaintiff does not pretend that Hernandez is bound, in any way, for the payment of the rent, and no personal judgment is asked by him against Bancker.

But it is a complete answer to Hernandez’s objections to the jurisdiction of the court, to state that Bancker has submitted himself thereto. That is conclusive against Hernandez. Phipps vs. Snodgrass, 31 An. 88; Gomilla vs. Milliken, 41 An. 117; C. P. 93.

In so far as the other exceptions of Hernandez are concerned, we need only mention the fact that their being incorporated in his answer is necessarily fatal to them. Robbins vs. Martin, ante, p. 488, and cases therein cited.

On the merits, we find the following to be a fair statement of facts, viz.:

That the plaintiff leased his plantation to the defendant, Bancker, as stated, and he has paid no part of the price of the lease, and nothing has been paid him from the proceeds of the sale of the crops produced on the leased premises, and which his lessee had shipped to Hernandez, as his factor, residing in the city of New Orleans— these shipments having been made, for the most part, after plaintiff’s rent had become due.

On the 9th of June, 1886, the plaintiff’s lessee executed in notarial form an act of pledge in favor of Hernandez, for the sum of $2000, due and payable on the 15th of December, following. In this act it is stipulated that this sum is to cover the amount and value of necessary supplies which were thereafter to be furnished for the cultivation and raising (of) a crop of sugar and molasses during the present year on * * * a certain sugar plantation situated in the parish of St. Martin * * * belonging to Mr. D. R. Carroll * * * which said plantation is leased by the said Bancker.”

It further stipulates that Bancker grants in favor of Hernandez “ the lien and privilege recognized by law in favor of furnishers of supplies, and, moreover, pledges and pawns * * * all the crops of sugar and molasses that will be raised on said plantation during the season of 1886-7.”

In addition to these stipulations, Bancker specially covenanted and agreed that he would ship to Hernandez, as soon as ready for market, all the sugar and molasses that he shall grow on said plantation,” and that Hernandez was to sell the same for his account and apply the proceeds thereto.

This act was duly registered in the clerk’s office of the parish of St. Martin on the date of its execution.

It appears from the transcript that Hernandez rendered to Bancker accounts of sale of certain sugars and molasses which were sold on the 22d, 23d, 26th, 27th and 29th of November and the 1st of Decernber, 1886, respectively, though none of ^said accounts were rendered until subsequent to the filing of this sunt on December 3, 1886.

It is admitted that the sugar and molasses Hernandez received from Bancker was so received on the days it was shown to have been sold, and that such dates were the dates of shipments from the plantation.

It appears that Bancker cultivated another plantation, which belonged to his wife and adjoined the Carroll plantation, and to which Hernandez likewise furnished supplies — though this plantation, nor the supplies to be thereto furnished, are made mention of in the act of pledge.

Bancker, as a witness, states that the first shipment of sugar and molasses from his wife’s plantation was made on the 29th of November, 1886 — not more than four barrels prior to that date. That all previous shipments had been made from the Carroll place.

The account current filed in evidence by Hernandez shows that subsequent to the 29th of November, the total sales aggregated only $866.42, and, as this sum must be attributed to his account for supplies that were furnished the plantation of Bancker’s wife — and with which Carroll has no concern. — it must be deducted from the total proceeds of crops received; and making this deduction will give us the following statement, viz.:

The total proceeds of crop........................................................................... $2,711 56
Deducted for account of Baneker’s plantation............................................. 866 42
Balance for account of Carroll’s plantation.......................................... $1,845 14

But inasmuch as Baucker’s account shows a total debit of $3606.32, the sum of $866.42 must be subtracted therefrom; and as Hernandez holds other collaterals of Bancker, which are worth approximately $1000, that value must be likewise subtracted therefrom.

Making these alcerations, we have this statement, viz.:

Amount to Bancker, debit................................................................................. $3,606 32
Bess Bancker’s plantation crop......................................................... $866 42
Other collaterals................................................................................. 1,000 00 1,866 42
Balance due Hernandez............................................................................... $1,739 90

On this showing Hernandez is in possession of values to the extent of $105.34 over and above his claim, whereas Carroll, the lessor of Bancker, has received nothing at all.

It further appears that all credits appearing on Hernandez’s ac'count against Bancker, as appertaining to the Carroll plantation, as of dates antecedent to the 22d of November, 1886, only aggregate ‘$817.18, and deducting this sum from the total amount of credits attributable thereto, viz., $1845.14, and we find that $1028.01 is the# net amount realized from crops which were shipped from the Carroll plantation within fifteen days previous to the institution of this suit, and the notification of plaintiff’s writ of sequestration to Hernandez, and the sheriff’s demand on him for the crops or their proceeds.

All of the transactions here detailed took place subsequent to the maturity of plaintiff’s claim, and prior to that of Hernandez; and Hernandez, as a witness, admits that the sums shown on his account to have been applied to Bancker’s credit, were thus applied after he had received notice of plaintiff’s sequestration, and that Bancker was ■subsequently notified thereof.

On this state of facts, the question for solution is, whether Hernandez, holding possession of the crops of Bancker, that were produced 'by the latter on a plantation under lease from Carroll, and which were consigned to the former as his factor, under bills'of lading, had the right, after sale thereof, to apply the proceeds to Bancker’s account for supplies furnished, to the prejudice of Carroll’s claim for rent. This question appertains, under the foregoing statement, to the proceeds of products which were raised by Hernandez prior to the 22d of November, 1886, viz., $817.18, as the remainder were received and sold within the fifteen-day limit.

While it is fully admitted and conceded by counsel for Hernandez, that under the provisions of Act 66 of 1874, he acquired, by virtue of his act of pledge, a right subordinate to the lessor’s lien, on the ■crop produced on the plantation Bancker leased from Carroll, yet, because of the latter’s failure to assert his right against the crops affected thereby while they are yet upon the leased premises, or within fifteen days after their removal therefrom, same has lapsed; and that in no event does the landlord’s lien extend to proceeds derived from the sale of property removed from the premises leased.

It is provided in the Code of Practice, Article 288, that the lessor may seize even in the hands of a third person objects which are subject to his lien, if same have been removed by the lessee within fifteen days previous to his suit being brought,” and in R. C. C. 2709 it is provided that in the exercise of this right, the lessor may seize the ■objects which are subject to it before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified.”

But our attention has been attracted to an alteration in the textual provisions of the Codes, by Act 66 of 1874 (as amended by Act 44 of 1882), in the following particulars, viz.: That while, under the provisions of Section 1 of the former act, the planter may pledge his growing crop for advances of necessary supplies in favor of a merchant advancing same, yet the effect of such pledge is subordinate to the claim of the landlord for rent of land. That, while under the provisions of Section 2 thereof, the advancing merchant, to whom such agricultural products have been consigned by bill of lading, shall have a right of pledge thereon “ from the time the bill of lading-thereof shall be put in the mail,” and shall confer upon such pledgee the right to sell said products and “ to appropriate the proceeds of sale to the payment of the amount due for such advances as may have been made thereon,” yet, it is also specially provided that nothing (therein) shall be so construed as to defeat or lessen the privileges of * * * landlords in this State * * * for rent,” etc.

That while under the provisions of Section 3 of that act, merchants or factors who have a balance of account due them by the planters who consign’’ to them any agricultural products for sale, have a pledge upon the same from the time the bill of lading therefor “ is deposited in the mail,” and is authorized “ to appropriate the proceeds of sale to the payment of the amount due ” him, yet it further provides 1 ‘ that nothing herein shall be so construed as to defeat or lessen the privilege of * * * landlords in this State * * * for rent,” etc.

The latter act makes no alteration of the former, except to extend the provisos contained in Sections 2 and 3 thereof to “ other valid existing privileges or liens.”

Whatever may have been the course of decision under the cited articles of the Codes, it is clear that under the terms of these statutory enactments, the lien of the factor who makes advances of supplies to a planter is subordinate to that of the lessor who rents the land, on the crops that are thereon produced; and that the right of sale which is conferred upon the factor, coupled with the right to appropriate the proceeds thereof to the satisfaction of his claim, is. not to be so construed as to defeat or lessen the privilege of the landlord for rent.

While, tinder the provisions of B. C. O. 2705, “the lessor has, for the payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased; ” and which pledge may, under the provisions of B. C. O. 2709, be exercised against the objects which are subject to it, before they are removed by the lessee from the leased premises, or within fifteen days after they are taken away, — yet, when such “effects” consist of agricultural products, like sugar and molasses, and same have been pledged, under the act of 1874, to a factor for advances of plantation supplies, and are afterward consigned to him •for sale, his right to appropriate the proceeds is thereby restrained, and subjected to the lessor’s claim for rent, and same are subject thereto in the factor’s hands.

In the instant case, the act of pledge in favor of Hernandez expressly mentions the plantation to which he contracted to furnish supplies as one Bancker had leased from Oarroll, and he can not be permitted to disavow’or gainsay the information he thus admitted was in his possession. He is conclusively bound by this admission, made in a quasi judicial act. As he was Bancker’s factor, and had received his consignment of sugar and molasses, and claims the right to apply the proceeds to his own account, he must have known that Carroll bad been paid nothing therefrom, and he was necessarily put upon inquiry as to his rights.

Plaintiff acted promptly and filed his suit, and gave Hernandez notice before his debt against Bancker became due; and, thereafter, pressed his* claim vigorously. We are of opinion that plaintiff’s right to recover of Hernandez is clear, to the extent of the amount of the proceeds of the sugar and molasses that were produced and manufactured on the land he rented to Bancker, viz., the sum of $1845.14, and legal interest from judicial demand.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed, in so far as it rejects plaintiff’s demands against Hernandez, and it is now ordered and decreed that same be so amended as to adjudge and decree that the plaintiff do have and recover from the defendant, Hernandez, the sum of $1845.14, with legal interest from judicial demand; and that, as-amended, same be affirmed, at the cost of defendant in both courts.


author: Fenner, J.

text:
    No. 10,880.
    Succession of Frank Borge.
    1. A mandatary wlio has acted as such continuously for a long period of years without being called upon for an account, and who then renders an account showing a balance in his favor, does not subject his demand to a charge of staleness, because the credits giving rise to the balance arose in the first years of the mandate.

      2. Presumptions of fact are not, like presumptions of law, governed by fixed rules. They are mere inferences, drawn by the judicial mind from the facts and circumstances of each particular case, dependent on tlieir own natural efficacy in generating belief or conviction. Slight variations in the facts of any particular case alter the force of such presumptions, and all the facts must be considered together in determining their application.

      3. The facts of this case are anomalous and peculiar, and considering them all together, the presumptions invoked do not suffice to destroy the positive evidence to the contrary, or to justify the reversal of the judgment appealed from; which, however, is amended by reduction of amount.

      APPEAL from the Civil District Court for the Parish of Orleans». King, J. _

      F. Michinard and J. P. Blair for Plaintiff and Appellant:
    1. “A stale claim long withhold from prosecution or presentation until he against whom it is preferred has died, must be established with more than reasonable certainty. An unfavorable presumption is created by delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony.” Wood vs. Egan, 39 An. 684. See also Succession of Henderson, 41 An. 489; Bodenheimer vs. Executors of Bodenheimer, 35 An? 1005; and authorities cited in the foregoing eases.
    This presumption operates, not merely against the fact that the debt ever existed, but rather against its continued existence at the time of the tardy demand for its payment.
    2. “ The testimony of plaintiff, in his own favor, to establish a large claim against a succession, should be received with greatest caution. It is, in itself, of tho weakest character, and unless strongly corroborated can not serve as a basis of recovery.” (Syl.) Cutler vs. Collins, 37 An. 95.
    “There maybe such inherent probability in the statement of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony.” Quock Ting vs. United States, 140 U. S., p. 420.
    3. “Extra-judicial admissions of a dead man are the weakest of all evidence, since they can not be contradicted, and no fear 'of detection in false swearing impends over the witness.” Bodenheimer vs. Executors of Bodenheimer, 35* An. 1005.
    4. The stale and suspicious claim sued on is one of the worst of its kind:
    (a) It is most stale, a part of it arising fifteen, and the most recent five, years prior to Borge’s death. It was never mentioned during his lifetime.
    (&) No sufficient or even plausible explanation of the claimant’s failure to collect, and of the long delay in presenting, his claim has been given.
    (c) Borge, the alleged debtor, was solvent and able to pay, and in the habit of promptly paying his employes. The claimant had no other means of support than his salary, and could not have supported himselfjand his family upon the amounts he says he received each year.
    (d) Claimant’s conduct after Borge’s death strengthens the presumption against him. He did not mention his claim when the account of the succession’s creditors was filed. He negatived its existence when questioned atthe family meeting.
    (e) The statement of claimant’s account in book “A D,” prepared by himself, increases, rather than removes, the suspicion and doubt and uncertainty surrounding his claim.
    5. In any event, Faust had no right to appropriate to the payment of his claim* the succession funds, which he had received in a fiduciary capacity. Hancock vs. Citizens Bank, 32 An. 592.
    Eaust was not a partner and neither possessed nor claimed the right of a liquidating partner. Halliday vs. Bridewell, 36 An. 238.
    6. The claim of Faust was barred by the prescription of three years. Colley vs. Latourette, 7 An. 222.

      Harry H. Hall for Defendant and Appellee:
    1. The issue herein is chiefly one of fact. Plaintiff’s ancestor, to evade his creditors, placed his entire business property in the name and control of defendant, who administered it continuously for seventeen years, as its apparent owner. The real owner forbade the keeping of books or of accounts, lest they might disclose his ownership. Upon his death, defendant promptly surrendered all this property to decedent’s heirs and presented a detailed account, made from memoranda and check books kept by him, and which account showed abalance due to him for services under an agreed rate of compensation.
    2. In such a claim there can be no question of staleness, so long as the owner did not call upon his mandatary for an account. No obligation rested upon the mandatary to demand a settlement, especially when he held property of his principal largely exceeding his claim. Civil Code, Arts. 3004, 3023.
    3. The defendant does not rest alone upon his own testimony to support his claim. It is proven by many witnesses, and corroborated by many circumstances.
    4. No prescription runs where the creditor holds the debtor’s property.
    The possession by its creditor of property for the purpose of being paid from the income of it is a standing acknowledgment, by the debtor, of his indebtedness. It prevents prescription from running in the same manner as in the case of a pledge; prescription does not run so long as the thing pledged remains in the possession of the pledgee.
    livery successive payment, moreover, made out of the income of defendant’s property operates as an interruption of prescription. Vide Montgomery vs. Uevistone, 8 Rob., p. 147; 1 Rob. 356; C. C. 3461; 21 An. 130; 22 An. 107.
    o. Defendant was, assuming his claim to be just, authorized by consent of plaintiff’s legal adviser to pay himself; he was also authorized to do so by reason of his position as liquidating partner and mandatary making consent liquidation. He did not use succession funds, but paid himself from the funds arising from the liquidation of the business, and in which the succession only had a residuary interest. And this question is not vital, since the funds are deposited subject to the order of the court.
    6. The facts of the instant cause are not similar to those of Halliday vs. Brideway, 36 An. 238, but bring it within the decision of Radovich vs. Erigerio, 27 An. 69, and create a partnership.
    But whether there was or was not a partnership is immaterial, since the money is held subject to the order of court.
   The opinion of the court was delivered by

Fenner, J.

The controversy in this case arises out of the following facts:

William C. Faust was the son-in-law of the decedent, Frank Borge.

In 1872 and 1874 Borge became the purchaser of a certain business, known as the New Orleans Transfer Company, and of the property engaged therein, consisting of coaches, wagons, horses, harness, office furniture, fixtures, etc. The purchases, however, were made by Borge through and in the name of William O. Faust, who alone appears as actor in the transaction, who paid the cash portion of the price and who gave his individual notes for the deferred payments, all of which appears from the notarial acts of sale extant on the record.

Borge was not known in the transaction, and was obviously solicitous of concealing his interest therein. His reason, as indicated by the testimony, was the embarrassed condition of his personal financial affairs. He took no counter-letter. The business was conducted entirely in the name, and for the apparent account, of Faust. Regular books were kept of the transfer business, which was a very lucrative one. At the end of each month these books were balanced, the net earnings were ascertained, and the amount thereof was paid over to. Faust, who passed them to his individual credit in bank. These funds were disbursed by Faust either to Borge, personally, or by his orders, or for his account. From 1875 to 1885 Faust worked for a salary. After the 1st of January, 1885, Borge allowed him an interest of one-fourth the net earnings. As Faust figured in the transfer business as sole owner and received the whole earnings, of course, the account of his salary and interest makes no appearance on the books of the transfer. And as Borge did not appear in the business at all, the books are equally silent as to him. All the accounts of Faust’s salary and interest, as well as of all payments between him and Borge, are outside of the books of the transfer, and are involved in the settlement of the account between the two touching the funds realized as net profits of the business and paid over to Faust, as apparent owner. Faust drew on account of the salary and share of profits due him as he saw fit, and he made payments to Borge, or for his account, as directed. Borge lorbade him to keep any regular accounts of the dealings between them, assigning, as a reason, that their production might show his ownership of the business, which he desired to conceal. Therefore, Faust’s accounts were kept solely in the shape of checks and private memoranda.

This account remained entirely open and unsettled during the whole lifetime of Borge, who died in March, 1889. It does not appear that Borge, at any time, ever demanded any account or settlement whatever. We have rarely encountered an instance of such unlimited confidence reposed by one person in another. Borge placed the legal title to his business and property in the name of Faust without a counter-letter. He placed the large revenues of the business in the possession and absolute control of Faust, entrusting him with their custody and disbursement, never exacting an account from him and even forbidding him from keeping any regular books of the account.

As late as March, 1888, Borge placed in the name of Faust two pieces of real estate which he owned and used in the transfer business, without requiring a counter-letter.

In the meantime Borge’s daughter, the wife of Faust, had died; and in September, 1888, Faust was about to contract a second marriage. At that time, and in view of that fact, two counter-letters ■were executed on September 26, 1888, one acknowledging 'Borge’s ownership of the real estate just referred to, and the other acknowledging his ownership of the transfer business and property. The last was executed in duplicate, and one was left in the possession of Borge and the other in that of Faust. Even after this, Borge rer turned to Faust his copy and told him to destroy it; but Faust, after consulting with Borge’s confidential attorney, on his advice, determined not to destroy it.

In the latter part of 1888, Borge’s state of health portended a speedy dissolution, and rumors reached Faust’s ears that the widow and heirs would require of him a strict accounting.

Then for the first time, Faust undertook the task of compiling from his check books and memoranda a statement of his receipts and expenditures of moneys for account of Borge during the long period of time covered by their peculiar relations. This statement was not concluded until shortly after the death of Borge. The statement is contained in a book and includes many separate accounts. We find in it an itemized statement of the monthly profits of the transfer business which were passed to his individual credit, and which, in absence of any suggestion to the contrary, we assume is correct and corresponds with the transfer books.

We find a long itemized statement of all moneys paid to or for the personal account of Frank Borge, covering many pages and aggregating a sum of Also a like itemized statement of Faust’s personal account, showing all moneys drawn by him against his salary and interest in profits from the beginning to the end of his employment, and crediting him with salary for the first ten years at the rate of §1500 per annum and with interest of one-fourth of the profits after 1884. The account is closed by a balance struck in his favor of §5000 as due to him at the date of Borge’s death.

The succession of Borge was opened, and the above book containing Faust’s account and showing the balance due was handed to the attorney of the widow and heirs shortly after Borge’s death.

An arrangement was effected between Faust and the widow and heirs by which the transfer business was continued for account of the widow and heirs, with Faust as manager at a salary of $250 per month. In that capacity he not only conducted the new business, in which he was employed only at a salary, but liquidated the old, in which he had an interest of one-fourth in the earnings.

At the instance of the administering tutor of minor heirs, an expert was employed to investigate the books of the transfer business. This expert swears that he was expressly charged to examine into the accounts of Faust, but this is denied. At all events, he received not only the transfer books, but also the book containing Faust’s statement of the account between himself and Borge, and seems to have acted under the belief that it was his duty to examine and report upon the whole. Accordingly, he formulated and presented to the attorney of the widow and heirs a report which, besides other matters, included and approved Faust’s account and the balance due him. The widow and heirs claim that, in this respect, the expert exceeded his authority, and the report was never filed. When offered in evidence in this case, it was objected f o and excluded by the court, to which ruling a bill of exceptions was reserved and the report is brought up as part thereof. We think it should have been admitted, to prove rem ipsam that such a report was made; but the matter is of trifling consequence, as the testimony of the expert attesting that fact is in the record.

After this examination and report by an expert selected by the widow and heirs, Faust considered that he had the right to pay himself out of the collections made under his management of the transfer business. He consulted his attorney, who advised him that if the money was due to him, he had the right to pay himself, but not to act without informing opposite counsel. He then mentioned the subject to the attorney of the widow and heirs, who seem to have stated generally that if the money was due to him, he should be paid. Faust drew out the money. This the widow and heirs ¡strenuously objected to. Upon notice of this objection, Faust’s counsel met the attorney of the widow and heirs and an agreement was reached by which Faust made a special deposit of the |5000 in •bank, to be held subject to the joint order of the two attorneys.

Thereupon the administering tutor took a rule upon Faust to ¡show cause why the said fund should not be forthwith paid over to the succession of Borge, on two grounds, viz.: 1. That even if the ■debt claimed by Faust were due, it formed no justification in law for the retention of the funds which had been collected by him in a fiduciary capacity, and which he was bound to pay over to the ¡succession. 2. That the debt claimed was not due.

No objection was made to the form of proceeding, and Faust filed an answer squarely joining issue on both grounds of the rule.

I

It is evident there were two distinct businesses requiring separate .settlements, viz.: 1. The business of the Transfer Company down to the death of Borge, in which Faust had an interest of one-fourth in the profits; 2. The business after the death, which, by agreement, was conducted for the exclusive benefit of the widow and heirs, .Faust managing the same only as a salaried employee.

We have critically examined the agreement between Faust and the widow and heirs, and it certainly seems to us to relate exclusively to the future business. Whether Faust was a technical partner or not in the old business, he was its manager, entitled to one-fourth of the profits, and had the right to have it liquidated in order that his interest might be ascertained and settled. He charged himself with its liquidation, collected its credits and paid its debts, with the full knowledge and approval of the widow and heirs, and, conceding the debt claimed by him to be due, we think he had the •same right to pay it from the collections of that business as to pay any other debt. This matter, however, is of slight consequence. The succession is abundantly solvent; the fund in controversy is intact and secure; the question of debt vel non is fairly at issue and has been the subject of exhaustive evidence; and it is the interest of all that it should be now disposed of.

II

The facts of this ease as we have detailed them are anomalous and peculiar. Faust can not be charged with laches in suffering the accounts between him and Borge to remain unsettled down to the day of the latter’s death. Borge never demanded any account and the evidence shows that he never desired one, and even objected to such an account being kept.

The suggestion that he waited until Borge’s death and then rendered an account which nobody but Borge could contradict, thus loses all force. If Borge chose that matters should be left in this shape, it does not lie in the mouths of his widow and heirs to complain or claim any advantage from it.

If Borge’s confidence in Faust was such that he intrusted him with uncontrolled powers, dispensed with all checks and safeguards, exacted no accounting, and left him at the end to make up his accounts according to his own conscience, the widow and heirs must abide by the result, unless they can prove unfaithfulness or fraud.

Faust has rendered an elaborate and itemized statement of his dealings, presenting a full statement of all sums received by him and how they were disbursed.

These accounts, together with the books of the Transfer Company and Faust’s check books, etc., have been in the possession, or under the control, of adverse parties, and they have had ample opportunity to examine and investigate them. In all the evidence in the case, we do not discover a suggestion that Faust ever received a dollar more than is shown in his statement, or that the disbursements reported by him do not cover the whole amount received. Neither do we discover any question made as to the correctness of any single item of the disbursements reported.

Indeed, the only item in the whole of Faust’s accounts upon which any attack is made is the entry crediting himself with $15,000, as the amount of his salary during the first ten years of his agency.

Now, it is evident that in making up his individual account, covering the whole period of his employment, and purporting to charge himself with all that he received for himself, and crediting himself with all that was due to him, an entry of the amount due for his salary during the first ten years was a necessary and proper entry. The only question that could possibly arise is whether the amount so entered is the true and correct amount. The evidence, not only of Faust himself, but of several other disinterested witnesses, who learned the fact from Borge, establishes incontestably that his saiary was $1500 per annum, and this is corroborated by every fact in the case.

The correctness of this entry being thus fixed, the' resulting-balance in his favor can not be disputed, unless other entries in the account are falsified. This has not been done by any evidence, but plaintiffs invoke certain legal presumptions to throw discredit on the account.

It appears that the balance claimed as due results entirely from Faust’s having drawn less than his salary during the first ten years of his employment. From this fact, the charge is made that the claim is a stale demand. Under the facts of this case, such a charge has no basis. The whole fund out of which Faust was entitled to be paid was in his own hands. What he did not draw he held in his own name and under his own'control. It passed into the general account between him and Borge, which he was not required to render until it was demanded; and in now rendering his account, his assertion of his claim, as a resulting balance of the whole, is timely and free from any taint of staleness. The same considerations destroy the plea of prescription. Much stress is laid upon the improbability that Faust should have drawn so small a part of his salary during these years. We admit that, prima facie, it is improbable; but it is explained, and while the explanation is not absolutely satisfactory, it is plausible, and leaves the presumption too weak to support judicial action.

The ingenious counsel for plaintiffs refer to other circumstances, giving rise to adverse presumptions and discrediting Faust’s claim. We have considered them very carefully, and, while not unimpressed, we can find in them nothing of sufficient strength to justify us in reversing the conclusions of the District Judge and in stamping, as a thief and a cheat, a man whose character is .not otherwise impeached, who enjoyed the unlimited confidence of Borge, and who is further accredited by the trust which the parties assailing him have continued to repose in him.

In the language of Mr. Greenleaf, presumptions of this kind are, in truth, but mere arguments, of which the major premise is not a rule of law; they belong equally to each and every subject-matter, and are to be judged by the common and received tests of the 'truth of propositions and the validity of arguments. They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind without the aid or control of any rules of law whatever.” 1 Greenleaf Ev., Sec. 44; Best on Ev., Sec. 316, et seq.

Cases do unquestionably arise in which such presumptions control the mind with such power of conviction as to undermine and destroy the effect of positive evidence to the contrary. Instances are presented in the cases quoted by appellants. Quock Ting vs. United States, 140 U. S. 420; Wood vs. Egan, 39 An. 684; Cutter vs. Collins, 37 An. 95.

Slight variations in the facts of any particular case alter the force of such presumptions, and inflexible rules can not be prescribed for their application.

Considering all the facts of this peculiar case together, we find no sufficient reason to disturb the conclusion reached by the District Judge except in one respect. Faust’s own testimony leaves us unsatisfied as to whether his salary of $125 per month began on the 1st of January or 1st of July, 1875. Up to the 1st of July, 1875, he was engaged in the warehouse business on his own account, and only kept the books of the Transfer Company. He himself says:

‘ ‘ I continued the warehouse business for my own account until July, 1875. From January, 1875, to July, 1875, I kept the Transfer Company’s books. Then, as Borge said it did not look well for me to be in the warehouse business, as I had the transfer business in my name, I went to work in the transfer business for $125 a month.”

He was doubtless entitled to something for prior services, but his 'salary of $125 a month is only shown to have begun in July. A reduction of $500 in the amount allowed him will do justice.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed in favor of Faust from $5000 to $4500, and by ordering the difference to be paid over to plaintiffs in rule, and that, as thus amended, the judgment be now affirmed, appellees to pay costs of appeal.


text:
    No. 10,839.
    Charles K. Burdeau vs. His Creditors.
    X. When the charge of fraud preferred against an insolvent is, that in certain . transactions with certain of his creditors, he made unfair dations enpaiement to them of his property, whereby he gave such creditors an undue advantage over the complaining creditor, and the effect of which was to injure such complainant, the gravamen of such charge is (1) intention on the part of the insolvent to defraud, and (2) injury to the complainant resulting therefrom.
    *2. The proof disclosing that the dispositions made of his property, by the insolvent, resulted in his having received therefrom a cash surplus above the amount of the claims of the creditors, who were paid sufficient to satisfy the complainant’s demand. Held: that whatever may be the inference therefrom of fraudulent intent on the part of the insolvent, there was no resulting injury to the complainant. There may have been a consilhtm fraudis, but no eventus damni.

    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.~ _

      George L. Bright for Plaintiff and Appellee.

      Gurley & Mellen for Opponents and Appellants:
    Fraudulent intent can never be absolutely proved; it can only be inferred.
    Therefore, the law presumes from certain acts a fraudulent intent on the part of him who commits them. This presumption is sometimes inconclusive, and may be rebutted (Sec. 1804, R. S.), and sometimes conclusive (Arts. 3359 and 3360, O. 0.).
    The legal presumption of a fraudulent intent is conclusive where the act complained of is a dation en paiement made by an insolvent within three months preceding liis surrender, whereby the donee obtains an unjust advantage and preference over other creditors, especially when property purchased from another creditor and not paid for is given to the favored creditor, and the insolvent was hopelessly insolvent at the time of making the dation enpaiement.

   The opinion of the Court was delivered, by

Watkins, J.

Seeking the benefit of the insolvent laws of the State, Charles K. Burdeau made a cession of his property to his creditors, filed a schedule of his assets, accompanied with a list of his creditors, and obtained an order of the judge accepting same for the benefit of his creditors.

At a meeting of the creditors of the insolvent, duly convoked, a majority in number and amount voted for his discharge — there being only four who voted against his discharge — their debts aggregating $5490.66, or about one-fifth of the aggregate of the claims of those voting for a discharge.

Of those voting against a discharge, was the firm of Marx Levy & Bro., whose claim amounts to $3526.61, who filed an opposition to the discharge of the insolvent based on three specific charges of fraud; and whereupon said opponents pray that there be a judgment of court “ depriving said Burdeau forever of the laws in favor of insolvents in this State, and sentencing him to imprisonment for a term not exceeding three years, as provided by Section No. 1807 of the Revised Statutes,” and for a trial by jury.

The answer or replication of the defendant was a general and special denial, and a plea in reconvention which cuts no figure in this case.

On the trial the jury rendered a verdict acquitting the insolvent of the charge of fraud; and, having unsuccessfully sought a new trial, opponents have prosecuted this appeal from the final judgment rendered in favor of the insolvent.

We have therefore for solution, the single and distinct issue, fraud vel non, as denounced in the eighteen hundred and seventh (1807) section of the Revised Statutes; and, finding that the insolvent “ has been guilty of fraud,” as therein denounced, we have for decision the quantum of punishment that shall be inflicted on him.

I

The charges and specifications made by the opponent are substantially as follows, to-wit:

1. (a) That on or about the 25th of January, 1889, the insolvent transferred and delivered to Martin Thompson & Co., horse and mule traders of the city of New Orleans, twenty (20) mules, at an agreed valuation of $145 per head, “ all or some of said mules being-given by said Burdeau to said Martin Thompson & Co., in payment of the indebtedness then due by him to said firm.”

(6) That on or about the 16th of February, 1889,' said insolvent transferred and delivered to Wm. B. Leonard, of said city, or to the firm of Leonard, Gentry & Co., of which said Leonard was the senior member, ten (10) mules, at an agreed valuation of $160 per head. That said Burdeau was then largely indebted to said Leonard, or to his firm, say $1600, “ and said mules were given to said Leonard or his firm in payment of said indebtedness.”

(c) That on or about the 28th of February, 1889, said insolvent being indebted to said Leonard or his firm, “ transferred and delivered to him or to his firm, ten (10) mules, at an agreed valuation of $160 per head in payment of said debt.”

(d) That on the 18th day of March, 1889, said insolvent transferred _ and delivered to said Leonard or to his firm, ten (10) mules, at an agreed valuation of $147.50 per head, “ and said mules were given .said Leonard or his said firm in payment of said indebtedness.”

(e) That on or about the 3d day of April, 1889, said insolvent, being then indebted to said firm of [Martin Thompson & Co., “transferred and delivered to said firm seven (7) mules, at an agreed valuation of $160 per head, as a giving in payment of said indebtedness.”

Predicated upon these five preceding specifications, the opponents make the following specific charges, to-wit:

“ That said Burdeau made each and every one of said dations en paiement within three months prior to his surrender, was insolvent when he made them, and made them with intent to defraud his creditors, and particularly opponents, and to give an unfair preference to said Martin Thompson & Co., and to said W. B. Leonard or his said firm of Leonard, Gentry & Co.”

The opponents, varying the character of the charge previously made, declare and affirm as follows, to-wit:

2. (cc) “But if said Burdeau should claim that said transfers were not dations en paiement, but real sales, and such be the truth, then the amount received by him for said fifty-seven (57) mules was $8695 or thereabouts, and he has surrendered no cash; although said sales were made within three months prior to his surrender, he has paid out in cash, between the date of the first sale and the day of his surrender, only the sum of $492.28, so far as opponents are informed and know.

“ And if said transfers were sales and not dations en paiement, then opponents charge said Burdeau with converting his property into cash with intent to place it beyond the reach of these opponents and ■other creditors, and so to defraud them. That said Burdeau has not surrendered said cash, nor any part thereof, but has fraudulently concealed the same.”

3. That the insolvent has failed and refused to surrender to his creditors his interest in the firm of Jos. A. Aiken & Co., wharf lessees in this city, he being a member of that firm.

The charges and specifications are well and accurately drawn, and are of easy comprehension, but before considering them and applying the evidence thereto, we must examine and dispose of an exception that was urged in the court below and is pressed by the insolvent’s counsel here.

II.

His exception is that “the three charges are (1) fraudulent sales, (2) dations en paiement, and (3) non-surrender of the prices received for the sales predicated on the same transfer.

“The first two can not exist at the same time. If he gave the mules in payment, he can not have sold them and concealed the price received, for none was received. If he paid the price, he can not have given the mules in payment.”

Counsel’s contention is that the plain requirement of the insolvent law is that an opposing creditor must state specifically the several acts or facts of fraud he wants to urge against the insolvent, and that the opponent has not done so.

He cites and relies upon the following authorities, viz.: Beste vs. His Creditors, 14 An. 518; Burdon vs. His Creditors, 20 An. 366; Campbell vs. His Creditors, 16 La. 351.

Giving these decisions due weight and conceding their applicability to the state of facts therein respectively presented, yet we can not concede their pertinency to the case at bar.

The particular transactions of the insolvent which are denounced as fraudulent are detailed and fully described. It was a matter of utter impossibility for the opponents to have known when the opposition was filed, whether they were sales in good faith for cash, the proceeds whereof were concealed from the insolvent’s creditors, or reprobated dations en paiement, consequently the acts were particularized and the charges of fraud were specified alternatively. It was a strike in the dark, and the best that could have been done-under the circumstances.

Counsel complains that the opposition failed to state that the insolvent “knowingly omitted to declare some of his property,” in the words of the statute. R. S., Sec. 1803.

We think the phrase employed, “fraudulently concealed,” is-sufficient.

The exception was correctly overruled

III.

As appertaining to the merits of the controversy, the facts may be fairly summarized as follows, viz.:

Charles K. Burdeau and W. O. Ahern were the individual members who composed the firm of Burdeau & Ahern, and were engaged in the draying business, hauling cotton for the cotton compresses, in the season of 1888-89.

As was the custom of the trade, they bought mules in the fall season to operate their business with, and made sales of some of them during the latter part of the winter and spring, when business became dull and unremunerative.

Burdeau purchased mules of the various parties named, and for which he owed, on January 25, 1889, to Martin Thompson & Oo. $2602.25, on open account; he owed Leonard, Gentry & Oo. $1782.43, represented by his promissory note, due on that date; and he owed the opponent’s firm of Marx Levy & Bros. $3526.61, evidenced by two promissory notes, bearing date January 11, 1889; one for $2005.28, due at ninety (90) days, and another for $1992.28, due at sixty days, but which was, on the date it went to maturity, diminished by the partial payment of $500, and the payment thereof was extended.

At the date of the maturity of their debt, Burdeau disposed of twenty of his mules to Martin Thompson & Co., at $145 per head, realizing thei'efor the aggregate sum of $2900, with which his entire account was discharged — they paying him the difference of $297.75.

On the 3d of April, 1889, Burdeau sold to said firm seven (7) mules, at $160 per head, aggregating in amount $1100, for which he received a check.

On the 13th of January, 1889, Burdeau made a sale of ten (10) mules to the firm of Leonard, Gentry & Oo., at $160 per head, aggregating the sum of $1600, on which he was given a check for only $800, the remainder not being at that time paid.

On the 17th of February Burdeau delivered to said firm ten (10) mules in addition, at $160 per head, aggregating $1600.

On the following day he was furnished a check for $1782.43 — the exact amount of his note, that day maturing — and he used it in paying his note in the Canal Bank.

On the 2d of March, 1889, he received a check of $617.57, thus evening up ” those two transactions.

On th 18tli of March, following, Burdeau sold'to said firm ten (10) mules, in addition, at $147.50 per head, aggregating $1475 in amount, and he received a check of $250 on the 19th of March, and one for $1225 on the 23d of March, 1889.

. The result of the transactions with Martin Thompson & Oo-. was that Burdeau satisfied their account of $2602.25 and received, in cash, the surplus of $1397.75; and the result of his transactions with Leonard, Gentry & Oo. was that he satisfied their demand of $1782.43, and received in cash the surplus or $2892.57, the cash items reaching a total of $4290.32.

The manner in which said mules were disposed of was -this: The time having arrived when, in the opinion of the partners, it was necessary that their stock of mules should be reduced, Mr. Ahern selected the mules that were to be sold and put them in suitable lots; and different dealers were notified and examined these lots, and made bids therefor at so much per head. In this case the two firms mentioned were competitors, and-secured the mules specified above, and at the prices and on the terms stated.

In the latter part of December, 1888, opponent’s firm was notified of it being the intention of the insolvent’s firm to sell off some of their mules, and the -former were questioned as to whether they would like to buy, and their reply was in the negative. Thereafter no further notice was given them of the said sales being made.

On this state of facts the question is whether those transactions were fraudulent dations en paienient, which were, on the part of the insolvent, intendedto confer on Martin Thompson & Oo., and Leonard, Gentry & Oo., an unfair preference over opponents, and the effect of which was to injure them — in the sense of the provisions of the insolvent law, upon which opponents rely for a conviction.

The transcript fails to disclose any specific proof of fraud or fraudulent intent; and the insolvent emphatically and circumstantially denies and disavows any such intention or act. The only inference there is of any such fraudulent purpose or design must be drawn from the foregoing statement of facts.

It is a fact that should be noted, that all of the parties named dealt with Burdeau alone, in selling mules to him and in purchasing mules from him — notwithstanding the fact that the latter at once covered same, into his partnership, and the sales were made as of partnership property.

The precept of the insolvent law that is sought to be enforced against the insolvent, Burdeau, is that—

“ If the jury summoned for the purpose of deciding on the accusation of fraud against the insolvent debtor declare in their verdict that he has been guilty of fraud, the insolvent debtor shall forever be deprived of the laws passed in favor of insolvent debtors in this State, and shall be sentenced to imprisonment for a term not exceeding three years,” etc. R. S., Sec. 1807.

In the sections of the Revised Statutes immediately preceding the one quoted, we find the term “fraud” defined, and the character of proof necessary to convict supplemented by illustrations and examples, in the way of fraudulent acts, which come within the provisions of the statute under consideration. For instance, Section 1802 declares that “ all persons shall be guilty of fraud who shall have concealed their body, or any of their property, with an intention, to keep it from their creditors,” etc. Section 1808 says that “ every insolvent debtor shall also be considered as guilty of fraud who shall have passed simulated deeds for the purpose of conveying the whole or any part of the property, ' and depriving his creditors thereof, or shall have knowingly omitted to declare any of his property, right or claims in his schedule, * * * always ivith an intent to defraud his creditors,” etc.

For the perpetration of any one of the acts enumerated, or others of like import, the insolvent is deemed, and considered to be, a fraudulent debtor, per se.

Section 1804 declares that “ if a debtor who has voluntarily surrendered his property to his creditors * * * shall have given within the year an unjust advantage or preference to any one or more of his creditors, by payment or otherwise, * * * the effect whereof shall be to injure the complaining creditor, or shall purchase property for cash, the delivery whereof shall be made to him, and then shall sell or dispose of the same without paying his vendor, * * * or shall have made a conveyance, transfer, mortgage, or pledge of his property, to the prejudice of the complaining creditor, any such act shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved. ’ ’

Whether the insolvent be guilty of fraud or not, under this section, is, in the first place, dependent on a question of fact as to the insolvent’s commission of the reprobated act; and, in the second place, on the fact of his having successfully rebutted the legal presumption of guilty intent raised on the proof of the act.

Coupled with the foregoing sections are the supplemental provisions of Section 1808, which are to the effect that: “Any debtor-who shall, within three months next preceding his failure, have sold, engaged, or mortgaged any of his goods and effects, or shall otherwise have disposed of the same, in order to give an unjust preference to one- or more of his creditors, shall be debarred from the benefit of the insolvent laws,” etc.

It thus appears to have been the manifest purpose of the Legislature in this section (1808) to declare that the acts which, in Section 1804, are denounced as “presumptive evidence of fraud ” if done “ within the year ” previous to the surrender of an insolvent,, shall be deemed a conclusive presumption of fraud, if done “within three months next preceding his failure;” and as a legal consequence thereof the insolvent “ shall be debarred from the benefit of the insolvent laws.”

But, in order to determine the main question, the insolvent’s guilt of fraud, under and in contemplation of the sections of the Re vised Statutes we have quoted, we are to first ascertain whether, as matter of fact, Burdeau did give, within the year, “ an unjust advantage or preference to any one or more of his creditors, by payment or otherwise, * * * the effect of which (was) to injure the complaining creditor.” Or did he make “ a conveyance, transfer, mortgage or pledge of his property to the prejudice of the complaining creditor,” — within the meaning of Section 1804?

If such we find to have been a fact, then the next question to be determined is, whether the act or acts complained occurred within three months preceding the failure or surrender in contemplation of Section 1808.

We have already found and stated that there is in the record no specific proof of fraud on the part of the insolvent. Is there to be-legitimately drawn from the facts stated any inference of any unjust advantage or preference having been given by him to Martin Thompson & Co. or Leonard, Gentry & Co. over the opponents, the effect whereof was to injure the opponents?

These precepts of the insolvent law have often been examined and interpreted, and-in so doing our predecessors have said that they are highly penal in character, and in their consequences on conviction of fraud, ‘ ‘ and must be strictly pursued. The acts charged must not only be such as' the law declares fraudulent, but done isith fraudulent intent.” Campbell vs. Creditors, 16 La. 348.

In other cases they have said:

“To constitute fraud there must be an intention of defrauding, consilium fraudis, and an actual loss, eventus damni” Montilly vs. Creditors, 18 La. 383; Slocumb vs. Real Estate Bank, 2 R. 92.

Those decisions conform strictly to the precise wording of the statute; for it declares not only that the act complained of must have conferred, or have been intended to confer, on some of the creditors of the insolvent an “ unjust preference or advantage ” over the creditor who charges fraud, but it also declares that “the effect whereof shall be to injure ” him.

The transactions of which the opponents complain are specifically enumerated in the opposition, and same have been reproduced in this opinion with care. They are charged, collectively, as badges of fraud and unfair dations en paiement.

Upon examination and careful comparison, we find that, by one of Burdeau’s transactions with certain of his creditors, he not only paid their account of $2602.25, but received from them a cash surplus' of $1397.75.

That by another of his transactions with others of his creditors, he not only paid a debt due them of $1782.43, but received from them a cash surplus of $2892.57 — i. e., a cash surplus of $4290.32 in excess of their demands against him altogether.

As all of those transactions occurred during the months of January, February, March and April, and antecedent to the maturity of Burdeau’s indebtedness to the opponents, and as the amount of cash realized therefrom exceeded the amount of opponents’ demands against him, it seems to be manifest that “the effect” of same was not to injure them.

Indeed, it is a fact, exhibited by the record, that, contemporaneously with said transactions, Burdeau paid opponents $500, which was put to his credit on their first maturing note, and it was extended for the remainder, and that said sum was not part of the cash so received. On the 17th of April, 1889, opponents levied an attachment on Burdeau’s property, and the sheriff found and seized ten (1Ó) mules — one-half as many as opponents sold him originally —those having remained on hand and unsold at date of seizure; also eleven (11) sets of harness, and fifteen (15) cotton floats, and some other property, not needing mention.

Hence, on this branch of the ease, our conclusion is that opponents’ appeal can not prevail.

IY.

But, coupled with the foregoing charge, is a further specification of fraud on the part of the insolvent, and it is this: That on the 25th of January, 1889, Burdeau had, in all, sixty-seven (67) mules, fifty-seven (57) of which he had bought in 1888. That of those, he had purchased twenty (20) of opponents, seventeen of which he had disposed of, as above stated, to other parties, to the prejudice of opponents’ vendor’s lien.

The provisions of Section 1804 of the Revised Statutes, above quoted, on this subject are, that if an insolvent “shall purchase property for cash, the delivery whereof shall be made to him, and then shall sell or dispose of the same without paying his vendor, * * * such act shall be held presumptive evidence of fraud.”

Certainly that provision of the law was not intended to apply to sales of property, or goods and effects, on terms of credit, as the sales of mules were made to Burdeau. For it is a precept of our Civil Code that the vendor’s lien on movable property is lost by a sale and delivery thereof to another.

It declares “ that he who has sold to another any movable property which is not paid for, has a preference on the price of his proper!;y over other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the pur chaser. ” R. C. C. 3227; Brent vs. Shouse, 16 An. 158; 20 An. 548, 557.

Evidently there is no prohibition against a sale being made by a vendee of goods which are purchased on a credit; and no fraudulent intent can attach to the act, though his contract be thereby violated.

As a matter of fact, had it been the intention of Burdeau to defraud opponents by selling mules on which opponents hada vendor’s lien, it is inexplicable that he should have retained three and sold seventeen; for after Burdeau’s surrender opponents appeared in the insolvency proceedings, and made claim for the proceeds of three mules on which they had a vendor’s lien, and it was allowed. This charge is not sustained.

Y.

The remaining question for consideration is, that Burdeau was guilty of fraud in “ concealing his cash with intent to defraud his creditors.” Page 8 of opponent’s supplemental brief. Their counsel disavow any intention on their part to charge that the insolvent “knowingly omitted to declare (some) of his property rights and claims in his schedule.”

The charge is made under Section 1802, and not under Section 1803 of the Revised Statutes. This charge is the alternation that is made mention of in the treatment of the insolvent’s exception.

(a) And just here we may as well dispose of the insolvent’s bill of exception taken to the ruling of the judge a quo rejecting a memorandum made up by him, of various and sundry expenditures, indicating the manner in which he had disposed of the cash he had received in the transactions detailed, and in the course of his business.

The unbending rule of law is that “the book of a merchantman not be given in evidence in his favor.” R. 0 . O. 2248; 1 Greenleaf, Sec. 115.

It proceeds on this principle, that the entries therein are his own memoranda, and he can not be allowed to manufacture evidence in his own favor.

As an aid to the memory of a witness testifying, this memorandum was objectionable on the ground that it did not purport to be contemporaneous in date with the transaction therein detailed.

It was properly excluded.

(b) On the question of the insolvent having concealed his cash to defraud his creditors, there is no evidence that is at all satisfactory or conclusive. The general tendency of it is to show that Burdeau had spent all of his money, and at date of his surrender had none. He denies the possession or concealment of any cash, and avers that at that time he did not have a cent, and that under the advice of counsel he sold a pony and a wagon for $125, to meet the expenses of his cession, and surrendered that to his creditors. Such an item prefaces his schedule. In his testimony he accounts for all his cash except a few hundred dollars, which he claims to have expended in the payment of small dues and the like. We do not consider this charge as supported by the evidence.

(c) This is not in any sense a revocatory action or one en declara - Hone de simulation, and, hence, the precepts of the codes do riot apply. R. C. C. 1988, 1984, 2658, 3630.

(d) In so far as the charge that Burdeau had failed to surrender his interest in the firm of Joseph A. Aiken & Co., wharf lessees, is concerned, it has been only recently decided by this court, in a suit in which his syndic was a party, that the interest therein represented by Burdeau was not his own, but that of his minor children. And to that suit opponents were, at least, privies, if not parties, as it was in their interest and at their instance that it was brought. Burdeau, Tutor, vs. Davy, Syndic, ante 585.

Certain it is chat, under the circumstances detailed, we do not feel justified in reversing the finding of the jury, acquitting the insolvent of the charge of fraud, in view of the District Judge’s declination to grant opponents a new trial.

Our predecessors once held that the insolvent law furnished a remedy of such a highly penal character that we would never feel authorized to convict the debtor of the fraud and punish him with an imprisonment, which might extend to three years, without the verdict ■of a jury.” Thompson vs. Chapman, 7 An. 258.

While not adhering to this doctrine, save for the illustration it affords, we will affirm this not to be such a case as will justify this court in reversing a verdict and sentencing the insolvent to the penalty of the law.

Judgment affirmed.