text:
    No. 6800.
    A. Pitot, Sequestrator, etc., vs. Chas. F. Johnson et al. Bartlette & Rayne, Intervenors.
    The shares of the capital* stock of corporations are not “ credits ” within the meaning of the Code, and the pledge of such stock is perfect by the simple delivery of the Certificate of stock, without notice to the corporation
    The principle is binding upon the Corporation itself, whatever its by-laws may provide to the contrary.
    The maxim of stw'e decisis should apply in this case.
    A PPEAL from the Fifth -District Court for the parish of Orleans. ¿X Sogers, J.

      Alfred Grima for Plaintiff and Appellee.

      Singleton & Browne for Intervenors, Appellants.
   The opinion of the Court was delivered by

Fenner, J.

This case presents a contest over the value of forty shares of stock of the New Orleans Mutual Insurance Association, which stood in the name of Chas. F. Johnson & Co., between the following parties:

1st. Bartlette & Rayne, who claim by virtue of a pledge of the stock to them made by Johnson & Co. on October 31st, 1873, accompanied by delivery of the stock certificates.

2d. The plaintiff, Pitot, sequestrator, who claims by virtue of a seizure under fl. fa. of the stock in the hands of the corporation made in December, 1874.

3d. The New Orleans Mutual Insurance Association, which claims that, under a provision of its charter, its stock cannot be transferred " while any matured indebtedness to the association exists on the part of the holders,” and that Chas. F. Johnson & Co. owes “ matured indebtedness ” to the amount of sixteen hundred dollars, evidenced by two notes in its favor, dated, one October 36, 1873, the other November 21, 1873.

It is conceded that the claims Nos. 2 and 3 above recited, both now enure to the benefit of the Insurance Association, and form double grounds upon which it claims the proceeds.

The judge a quo, in a learned opinion, held that, under article 3158, Rev. C. C., the certificates of stock being “credits not negotiable,” the pledge thereof was not complete, as to third persons, by the mere delivery of the certificates, but required also the giving of notice to the “ debtor,” or corporation; and that no such notice of the pledge to Bartlette & Rayne having been given prior to plaintiff’s seizure, the said seizure-must hold the stock or its proceeds.

If the question were an open one, we should be disposed to affirm the judgment of the court a qua. considering it to be based on a sound construction of article 31ES taken as a whole, and particularly of the last clause thereof. But since the date of that judgment, two decisions have been rendered by this Court holding that shares of stock were not credits, within the meaning of Art. 3158, and that a sale or pledge of the stock of an incorporated company, is, under article 3158, complete, even as to third persons, by the delivery to the vendee or pledgee of the certificates of stock, and that notice to the corporation is not necessary to the perfection of the sale or pledge or to protect the stock from seizure by the vendor’s creditors, or from other rights of third persons arising subsequently to the sale or pledge. Smith vs. Slaughterhouse Co., 30 An. 1378; F. & T. Ins. Co. vs. Dry Dock Co., 31 An. 149.

These decisions confront us with a question of stare decisis, which must control our action in the present case. In the system of modern commerce, the sale and pledge of stocks form such important factors in financial operations, that it is of the utmost consequence that the legal mode of effecting such sales and pledges should be definitely ascertained and free from doubt. Since the rendition of these decisions, doubtless, a multitude of such transactions have been consummated in full reliance upon them, as a final settlement by the highest judicial arbiter of the law upon this subject. In such matters, a vacillating jurisprudence is more disastrous in its effects than even an erroneous one. We feel constrained, therefore, to accept and follow the decisions referred to. It results, necessarily, that the seizure under plaintiff’s judgment could not prejudice or affect the rights of Bartlette & Rayne as pledgees. The same principle equally disposes of the claim of the Insurance Association based upon the provision of its charter above referred. Admitting the validity and binding effect of the provisions, it yet appears that, at the date of the pledge, the holder of the stock owed nothing to the corporation. If notice had been necessary to the validity of the pledge, and had been given, it would not be pretended that, after such notice, indebtedness of the stockholder, arising subsequently, could, in any manner, operate to the prejudice of the rights of the pledgee. But since it is held that, without notice, and by the mere delivery of 'the certificates, the pledge is binding as to the corporation and all third persons, it logically follows that the pledge fastens on the rights of the pledgor as they stood at the moment of the pledge and cannot be affected by subsequent, transactions between him and the corporation.

A different question might present itself if the indebtedness to the company had existed at the date of the pledge.

Practically, it lies within the power of either party to protect himself. The corporation when about to permit a debt to be contracted by a holder of its stock for which it desires the protection of the clause in its charter, may secure the same by requiring the holder to produce his certificates of stock. The pledgee, when about to advance on the pledge and delivery of the certificates, may apply to the corporation for information as to the indebtedness of the pledgor 'to it.

For these reasons, it is ordered that the judgment appealed from be annulled, avoided and reversed, except that portion thereof which gives a personal judgment in favor of the intervenors and against Chas. F. Johnson & Co.-and the members of said firm, which portion is hereby affirmed; and it is now further ordered, adjudged and decreed that Bartlette & Rayne have the right to sell the stock involved herein at public or private sale at their option, as stipulated in their act of pledge, and to be paid the,amount of their judgment against defendants out of the proceeds of sale, by preference over all other parties; and that the New Orleans Mutual Insurance Association be condemned to allow them to transfer the said stock and make complete title to the purchaser; the costs of the lower court and of this appeal to be paid by the New Orleans Insurance Association.


source: Caselaw Access Project

author: Levy, J. Fenner, J.

license: Public Domain

text:
    No. 66.
    The State of Louisiana vs. J. H. Flint.
    The accused having pleaded nofc guilty upon a first arraignment and, upon trial, tlie jury not agreeing and being discharged, a second arraignment took place, when the accused pleaded guilty and was sentenced by the Court: held that the proceeding was legal and that no formal withdrawal of the first plea of not guilty was necessary.
    It is no more an open question in Louisiana that, in an Indictment under a statute providing a punishment for the commission of a common law offense, it is insufficient to charge the offense in the statutory terms alone, hut all essential averments in an Indictment at common law for the same offense are necessary. Therefore, forgery being a common law offense, not defined in our statutes, and a felony at common lawt the omission of the word feloniously in the Indictment vitiates the proceeding.
    APPEAL from the First Judicial District Court, parish of Caddo. ' Taylor, J.
    (This case was originally decided at the October Term, in Shreveport, and transferred to New Orleans, where the Decision on the Rehearing was rendered.)

      M. S. Crain, District Attorney, for the State, Appellee:
    First — Felonies and misdemeanors, forming part of the same transaction, may be joined, as in larceny and conspiracy to steal. Whart. Crim. Pleadings, 8th ed. pp. 291, 285.
    Second — It is not duplicity to couple successive statutory phrases in one count óf an indictment. Whart. Crim. Pleading, 8th ed. § 251.
    Third — Judgment will not be arrested on the ground that the offenses are distinct. Ib. § 251.
    Fourth — A motion in arrest for duplicity cannot ho sustained, duplicity is fatal on motion to quash or demurrer. Ib. $ 760; 1 Bish. Crim. Pro., § 443 and note.

      Fifth — By a plea of guilty, defendant confesses himself guilty in manner and form, as charged • in the indictment; formal defects in indictment are cured by this plea. Ib. § 413, 416; 1 Bisli. Crim. Pro., 3d ed. § 794. 5, 8.

      Hicks & Hicks for Defendant and Appellant:
    First — A jnvy in a case of felony cannot be discharged without a verdict, unless it is clearly apparent, after sufficient trial, that they cannot agree.
    Second — An arraignment and plea of guilty cannot be allowed when defendant has been arraigned and pleaded not guilty, when there was no withdrawal of. the first plea, and, therefore, the sentence in this case is illegal. 1 Chitty’s Crim. Law,.434, 437; 1 Bishop’s Crim. Pro. Sees. 748, 750; 2d. Xerger’s B. 248; 1 Bishop’s Crim. Pro. 124, 801, 798.
    Third — A jury in a case of felony cannot be discharged without a verdict, in the absence of the defendant, who is in jail. 30 An. 368; 1 Chitty’s Crim. Law, 663; 1 Bishop’s Crim. Pro. 271.
    Fourth — Forgery and uttering a forged order cannot be joined in one count of the indictment. They are distinct, and different offences and require different punishments. 3 G-. E. Sec. 104; Arch. Crim. PI. 287, 288, 294; 2 Bishop’s Crim. Law, Sec. 604-5-7, 548, B. S. 976; 3 Chitty’s Crim. Law, 1033; 2 Bishop’s Crim. Law, Sec. 609; B. S. Sec. 833, 835; and is fatal in arrest of judgment. 30 An. 571; 32 An. 573; 30 An. 313; 32 An. 574; 11 An. 648. Plea of guilty does not cure the defect. 1 Bishop’s Crim. Pro. Sec. 795; 6 Texas', 334; 1 Bishop’s Crim. Pro. Sec. 798. An indictment for forgery and uttering a forged order which were felonies when the punishment was affixed in B. S. 833 and 635, must contain the word “feloniously.” 1 Chitty’s Crim. Law, 242; 20 An. 145, 409; 8 B. 547, 601-2; 30 An. 846; 8 An. 114; 6 An. 405; 12 An. 383.
   The opinion of the Court was delivered by

Levy, J.

Defendant was indicted by the grand jury of the parish of Caddo for the crime and offence of forgery. He pleaded guilty and was sentenced by the Court to imprisonment at hard labor, in the State penitentiary, for the term of two years,, commencing from date of incarceration therein. When first arraigned, the prisoner pleaded not guilty and put himself on trial by a jury, and owing to the inability of the jury to agree, there was a mistrial. Two days afterwards, the prisoner was again arraigned and pleaded guilty, under which plea he was sentenced as aforesaid.

There were motions for a new trial and in arrest of judgment, both of which were overruled for the reasons given by the judge a quo, which are found in the record. We also find an assignment of errors filed in this Court.

The motion for a new trial is based upon the averment that the verdict of the jury is contrary to the law and the evidence; that in arrest of judgment, 1st. “that the indictment charges distinct and separate crimes and offenses against the defendant in the same and only count, which crimes and offenses require different punishments, provided by different statutes.” 2d. “The indictment charges that defendant did counterfeit and forge a certain order, which crime is punished, under'the Revised Statutes, Sec. 883, by imprisonment, at hard labor, for not less than two years nor more than fourteen years; and, in the same count, it is charged that he did utter, put-off and publish as true the same order, which crime is punished, under the Revised Statutes, Sec. 835, by imprisonment, at hard labor, not more than ten years, and not less than two years; and the indictment is lor two distinct and separate offences and is bad for duplicity;” 3d. "Neither of the offenses are charged to have been committed feloniously, though they are common law offenses;” 4th, “ If they are statutory offences, the indictment does not charge either offense in the words of the statute or in equivalent words; 5th.- “ The court cannot, under the verdict and the charges in the indictment, apply any punishment applicable to the charges.”

We do not think the first ground urged in this motion is tenable, inasmuch as two distinct offenses, i. e., the offense denounced in section 833, R. S., and that in 835, are not charged in the indictment. Sec. 833 reads: " Whoever shall forge or counterfeit, or falsely make or order, or shall procure to be falsely made, altered, forged or counterfeited any ( . * * * * ) order, acquittance or discharge for or upon the payment of money or delivery of goods, ( * * * * ) or shall alter or publish as true any such false, altered, forged or counterfeited ( * * * * ) order ( * * * * ) with intent to injure or defraud any person, ( * * * * ) on conviction, shall be punished by imprisonment, at hard labor, for not less than two nor more than fourteen years.” Sec. 835 reads: “Whoever shall utter or tender in payment, as true, any false, altered, forged or counterfeited note, certificate, check or bill of any debt of this State, bank bill, check or promissory note, payable to the bearer by any bank, knowing the same to be false, altered, forged or counterfeited, with the intent to injure or defraud this State, any body politic or corporate, or any person, shall, on conviction, be imprisoned at hard labor, not exceeding three years, and fined not exceeding two thousand dollars.”

It is true these two sections define entirely different offenses, but the indictment does not charge them. It is charged in this indictment, that the prisoner “ wilfully, falsely, and fraudulenty, did counterfeit, forge, utter, put-off and publish as genuine, one certain order for goods and supplies, (****) with intent to defraud said Weiler, to the great damage of said Weiler,” &c. Thus, the indictment does not charge the offense contained in Sec. 835, which describes an offense different from that in Sec. 833, and prescribes a different punishment.

The offense of forging, counterfeiting, and falsely making, &c., an order for the delivery of goods, and that for publishing as true any such false, altered, forged or counterfeited order, are embodied in the same section by means of the conjunction or, and are conjunctively set forth in the only count of the indictment.

The questions to be decided are, then : Does this constitute duplicity and is it a fatal defect and, if so, is it cured by verdict ?

Counsel for defense cites the case of State vs. Palmer, 32 An. 565, and relies upon it in support of his motion. The doctrine therein enunciated was based upon entirely different facts and is by no means applicable to the ease at bar. In the Palmer case we held that “ the indictment should have been confined to the provisions of Sec. 907 R. S., instead of which it has been extended to those of section 905, which applies to other and distinct cases of embezzlement and breach of trust. Thus, in this indictment, in this (Palmer’s) case, there are grouped in each count the offenses described in these two different sections, which define different and distinct classes of offenses. For that reason, the indictment in both its counts, is bad for duplicity and defective for uncertainty.” In State vs. Adam et al., 31 An. 719, the Court held: “Several offenses, distinct in kind and degree, cannot be included in the same count, but this rule does not apply to cumulative offenses denounced in the same clause or section of a criminal statute. Such clause or section may, and often does, enumerate several offenses linked to the same act, or enumerate disjunctively the intent necessary to constitute each of the offenses, and in such cases, they may be charged conjunctively in one count.” Also, “ This prosecution is under Rev. Stats., section 794, and reads : Whoever shall with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, etc. The crime thus denounced was charged conjunctively and cumulatively and the indictment is not amenable to the objection urged by the prisoner, which applies to a different class of cases.” In State vs. Markham, 15 An. 498, the same rule is clearly stated. See, also, 2 An. 837, 838; 4 An. 32; 14 An. 668; 40 Maine, 592; 36 N. H. 359; Wharton, Crim. Law, pp. 81, 98; Starkie, Crim. Pl. 271; Wharton, Crim. L. (3d ed.) 172, 173, 188, 203-4; Lewis, Am. Cr. Law, p. 303.

We adopt the ruling and reasons of the District Judge on defendant’s objections that the offenses are not charged to have been committed feloniously, and the offense is not charged in the words of the statute, or in equivalent words, in which he is fully sustained by the authorities cited by him. 9 An. 106; Voorhies’ Crim. Jurisp. p. 391, No. 78; 13 An. 243; 1 Bish. Cr. Pr. and Pl. § 535, 536; 30 An. 814. See, also, Wharton, Am. Cr. Law (3d. ed.), 194, 189, 190. His ruling, also, on the fifth objection in the motion, that “the court cannot, under the verdict and the charges in the indictment, apply any punishment applicable to the charges,” is also in full accordance with our views as hereinbefore expressed.

The assignment of errors has been considered by us and we find nothing which would justify the reversal of the judgment. The District Judge exercised the discretion vested in him when he discharged the j ury on the first trial, on its failing to agree upon a verdict. 7 An. 518. The prisoner had the indisputable right to plead guilty on his second arraignment and this plea was ipso facto a withdrawal of his former one. The mere absence of the formality of a written or even verbal withdrawal ipsissimis verbis cannot vitiate the proceedings.

We think that the objections urged as to the proceedings had on the first trial, are not such as we should or can properly inquire into or discuss. The second trial is all with which we have anything to do. The accused stands upon his plea of guilty and the proceedings under and growing out of that plea and the validity of the indictment, which charged the 'offense, are the only subjects and questions for our consideration.

The judgment of the lower Court is affirmed with costs.

•On Rehearing.

Fenner, J.

We granted a rehearing in this ease, exclusively on the ground of the insufficiency ol the indictment, by reason of the omission of the word “ feloniously” in the description of the offense charged. '

A review of the authorities has convinced us that we were in error ■ in overruling this objection. It seems to be no longer an open question in the jurisprudence of this State, that in an indictment under 9, statute providing a penalty for the commission of a common law offense, it is insufficient to charge the offense in the statutory terms alone, but all essential averments in an indictment at common law for the same offense will be deemed necessary here. State vs. Thomas, 29 An. 601; State vs. Curtis, 30 An. 814; State vs. Cook, 20 An. 145; State vs. Durbin, 20 An 408; 8 R. 590; 10 An. 195, 698; 5 An. 324.

The defendant here was indicted under a statute punishing the offense of forging, without defining what forgery is. Forgery was a common law offense, and we must look to the common law for the definition of what it means under the statute. Whatever was essential to the description of that offense in an indictment at common law, is essential here.

Forgery was a felony in England in 1805. 3 Chitty’s Cr. L., 1031.

The absense of the word “feloniously” from an indictment for forgery at common law would have been fatal. It is equally so here. See authorities above quoted; also Wharton, Am. C. L. §§ 399, 372, 1607, 1612, 1613.

It is, therefore, ordered that our former decree herein be annulled and set aside, and it is now ordered, adjudged and decreed that judgment and sentence appealed from be annulled, the indictment quashed as not good in law, and that the defendant remain in custody subject to the orders of the District Court of the parish of Caddo.

The Chief Justice takes no part in this decision, having been absent wlien the case was submitted.


author: Todd, J.

text:
    No. 8383.
    The State of Louisiana ex rel. Joseph Tyrrell vs. The Judge of the Fifteenth Judicial District Court, Parish of Point Coupee.
    "When a judge is recused on account of interest in. the cause, he cannot himself deoide the issue raised on that point by Ms denial, but must refer it, to be tried as provided by law.
    ApPLIOATION for writ of Prohibition.

      Robert Semple, District Attorney, and O. O. Provosty, for Relator.

      John Yoist, Judge, Respondent.
   The opinion of the Oourt was delivered by

Todd, J.

On the 28th of October, 1881, the relator obtained a judgment before a justice of the peace, in the parish of Point Ooupee, against one Mac Johnson,'for sixty dollars and interest. From this judgment the defendant in the case appealed to the District Oourt of said parish, presided over by the Hon. John Yoist, defendant in the present proceeding.

After the appeal was filed in the appellate court, the relator’s attorney filed an exception alleging that the District Judge, Hon. John Yoist, had a personal interest in the result of the suit, and moved for his recusation. The judge having refused to recuse himself, and the relator fearing that he would proceed to try the case and pronounce judgment therein, applied to this Oourt for a writ of prohibition, to restrain him from further proceedings. An alternative writ having been granted, the defendant judge has made answer, and denies having any interest in the case.

The Code of Practice, Art. 337, defines recusation thus :

“ Recusation is the refusal on the part of the defendant to have his cause tried by the judge before whom he has been sued, on account of the ties of relationship existing between such judge and the plaintiff, or for other just causes hereafter expressed.”

Among other causes expressed, is that of a judge, being interested in the cause. For such cause, either party may challenge or move the recusation of the judge.

When a refusal has thus been made to the judge’s trying the cause, on account' of interest, that refusal must be respected by the judge. He must either admit his disqualification and enter up the order of recusation or deny it, and thereby raise an issue touching his right to try the case. If he pursues the latter course, it is plain to see that he could not legally decide that issue himself. Assuming that he is interested— as charged — -that interest would prompt him to declare himself not interested, as much as it .would move him to follow that interest in the judgment he would render in the cause. Hence, it is not enough for the judge to disavow an interest, but, where such disavowal is not satisfactory to the party making the challenge — as in the present case — and he insists .upon showing such interest in the judge, it evinces an unwarranted exercise of authority in this officer to assume to determine this question, so exclusively personal to himself and affecting his own competency. He should at once recuse himself on this issue and refer it to be tried in the manner pointed out by law. If on such trial, the ground of recusation is shown untenable and the competency of the judge to try the case decreed, then, and not till then, is the judge authorized to proceed in the case.

To hold otherwise, would be to render this important right of recusation or challenge nugatory and worthless.

From this it clearly follows, that the trial and overruling of the exception by the defendant judge touching his recusation, and any and all other proceedings thereafter are null and void.

For.these reasons, the writ of prohibition is made peremptory at the cost of the defendant.


text:
    No. 8304.
    The State of Louisiana vs. Thomas Richards.
    An indictment is not bad for duplicity, in charging conjunctively in the same count, both, an offense and the intention of committing the same, when the two are denounced disjunctively in the statute. This is not an open question any longer.
    APPEAL from the Ninth Judicial District Court, parish of Tensas. Hough, J.

      J. G. Egan, Attorney General, for the State, Appellee:
    First — It is immaterial whether the exact language of the statute be used or not, so the accused he informed of the exact nature of the charge against him. All unnecessary allegations will he considered as surplusage. Arch. Crim. P. and P., vol. 2, p. 14; Sec. 394; Wharton’s Crim. Law; Bishop on Criminal Procedure, vol 1, Sec. 478.
    Second — Cumulated charges in a statute may be cumulated in a count of an indictment or information, and if all the cumulated charges he proved, there is hut one offense committed. Wharton’s Crim. Law, 4th ed., Sec. 390; Bishop on Criminal Procedure, Secs. 434, 435 and 436; Bishop on Statutory Crimes, Sec. 383, p. 254.
    Third — An objection to the information for duplicity must he made by special plea, or in a motion to quash; the detect in the information is cured by the verdict. Bishop on Crim. Pro., 2d ed., Sec. 442; Arch. Crim. P. andP., vol. 1, p. 315, note; Wharton’s Crim. Law, 4th ed., Secs. 395 and 3043; Yoorhies’ Crim. Jurisprudence, Sec. 76, p. 389.

      L. V. Beeves and Jno. S. Halseij for Defendant and Appellant.
    First —That the information charges no specific offense under our law.
    Second — That the information is defective and should be quashed for duplicity and uncertainty, as it contains two or more offenses, if offenses, in one count.
   The opinion of the Court was delivered by

Todd, J.

The defendant is appellant from a sentence condemning him to six months imprisonment at hard labor in the penitentiary.

The information on which he was tried, charges that the accused “ did, with a dangerous weapon, to wit, a knife, and with intent to kill, feloniously assault one Allen Parker, and did inflict wounds less than mayhem upon the person of him, the said Allen Parker.”

The section of the Revised Statutes on which this prosecution was instituted (Sec. 794) reads as follows : “ Whoever shall with a dangerous weapon, or intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned not exceeding two years,” &e.

The accused was tried by a jury, and, after a verdict of guilt}', moved to arrest the judgment on the following grounds :

1. that the information charged no offense provided for by the statute.

2. That, if an offense is charged, there is duplicity in joining two different offenses in the same count of the information.

There is certainly an inconsistency and contradiction in first alleging that no offense is charged and, then, that two distinct offenses are charged in the information.

However that may be, the first ground is not pressed, and a mere glance at the information shows there is no force in it.

The only real question presented, is that contained in the second ground — that of duplicity — and this question has been so frequently adjudicated upon that it is no longer an open one.

The rule on this subject is thus laid 'down in a decision of this Court: “ In penal statutes, when the statute enumerates several offenses connected with the same transaction or the intent necessary to constitute such offense disjunctively, they may be alleged conjunctively in one count; and in that event must be charged in the indictment conjunctively.” State vs. Markham, 15 An. 498; State vs. Fant, 2 An. 837; State vs. Palmer, 32 An. 565; Wharton on Criminal Law, Sec. 390; Bishop on Criminal Procedure, Secs. 434, 435, 436.

The accused is here charged with inflicting a wound less than mayhem with a dangerous weapon — a knife — and with intent to kill. The offenses charged, if they can be construed" as two offenses, are connected with the same transaction” — in fact, constitute but one act, and were properly charged conjunctively in the information. The case falls strictly within the repeated rulings and authorities cited above. Though the offense was not charged in the exact language of the statute, it was substantially so charged, and the slight difference is mere surplusage. The case referred to, State vs. Johns, 32 An. 812, and relied on by defendant’s counsel, is not in point. In that case, two offenses created by two different statutes, imposing different penalties, were joined in the same count.

Judgment affirmed.


author: Levy, J. Poché, J. Fenner, J.

text:
    No. 8161.
    M. M. Ada Calhoun and Husband vs. Lionel L. Levy et als.
    A more auxiliary proceeding, by ■which a third person comes in by way of injunction, to protect his property from being seized and sold under a judgment to which he was not a party, is not removable, under the Act of Congress of March 3d, 1875, from the State to the Federal Court. Affirming Watson vs. Bondurant, 30 An. 1.
    Under the laws creating the Parish of Grant, a judgment previously rendered by the District Court of the Parish of Rapides, cannot be revived by the same Court. It is the Court of the Parish of Granji, to which the suit, in which the judgment was originally rendered, is transferred, that has jurisdiction of the revival.
    Article 3547, C. C., under which judgments are revived, did not provide an exclusive mode of preventing the prescription of such judgments. Affirming 30 An. 1071.
    It is urged on the Rehearing that the citation in the revival suit, though brought before an incompetent court, interrupted the prescription of the judgment. -The Court does not pass upon this point and leaves the parties at liberty to raise the issue in some other pro: ceeding, but strikes from its original decree that portion which sustained the plea of prescription.
    A PPEAL from the Twelfth Bar bin, J. Judicial District Court, parish of Grant.

      J. P. Hornor and Francis W. Baker for Plaintiffs and Appellees:
    An application for removal of a cause made in due time and in due form, under the Act of Congress of 1875, by a citizen of another State, should be granted.
    Unless one have an actual and real interest which he pursues, he cannot be heard attacking the title of another. Code of Practice, 15.
    A judgment rendered by the District Court for the parish of Rapides, in 1868, against one residing in that portion of the parish, afterwards made a part of Grant parish, could only be executed or revived after the parish of Grant was organized by the District Court of the parish of Grant. Act 82 of 1869. Act 26 of Extra Session 1870. Act 39 of 1871. Act 78 of 1873. Hammett vs. Sprowl, 31 An. 325; 32 An. 309.
    Any attempted revival of such a judgment by the District Court of the parish of Rapides, after the organization of Grant parish, was void, the Court being coram non judice. Same authorities.
    If the District Court of .Grant was not given jurisdiction over such cases, still the District Court of Rapides, having been divested of all jurisdiction thereover, there is a casus omissus with respect to such cases, which the Legislature alone could have supplied. Chapman vs. Nelson, 31 An. 347.

      Judgments not revived in accordance with C. C. 3547 (R. S. 2813), are prescribed by the lapso of ten years.
    A judgment rendered by a court without jurisdiction, is absolutely void, and such nullity may be set up by any person, whenever and wherever it is sought to be enforced. 23 An. 779; 26 An. 127; 28 An. 744; 24 An. 277; 27 An. 630.

      B. J. Bowman and B. A. & B. P. Hunter for Defendants and -Appellants:
    The Court which rendered the judgment, sought to be revived, is that which has jurisdiction of the suit to revive. C. C. Art. 3547, Act 1853, §250.
    The jurisdiction is unchanged by the change of residence of the debtor to another parish, or by the creation subsequent to the rendition oí a judgment of a new parish carved out of the territorial iurisdiction of the original court, in which new parish the debtor resides. 23 An. 594; 27 An. 51; 30 An. 961; 31 An. 346.
    The expressions contained in the Acts of 1869, No. 82, creating the parish of Grant, and the amendatory Act of 1870, No. 26, do not vest the District Court of the parish of Grant with the jurisdiction to revive a judgment rendered by the District Court of the parish of Rapides, out of which the parish of Grant was created.
    A suit to revive a judgment, is merely incidental to the original suit, “a graft upon it” must be brought in the Court which rendered the judgment, and cannot be removed to the U. S. Circuit Court. Bank vs. Turnbull, 16 Wall. 190; Barrow vs. Hunlongg, IT. S. 80.
    The judgment of revival cannot be attacked upon the ground, that the Court, which rendered it, had no jurisdiction, when the debtor himself on whom citation was served, raised no such question, but by making default, joined issue in the suit to revive and against whom on that issue judgment has been rendered.
    Nor can the vendee, in a simulated sale by the debtor, raise any question as to the validity of the judgment and judicial mortgage against the debtor; if the sale is simulated, the vendee is without interest. 2 An. 367; 30 An. 947; 2d H. D., p. 1031, No. 1.

      Miller, Finney & Miller on same side, on the rehearing:
    First — The citation from an incompetent court interrupts prescription on the action to revive. O. C. 3518.
    Second — Whether liberando, or acquwendi causa, citation from an incompetent court interrupts. C. C. 3351,
    Third — The prescription of judgments is found in the Code under the head of prescriptions liberanda causa; it is subject to the general rules of prescription, and is like other prescriptions liable to be interrupted by citation from an incompetent Court. Succession of Patrick, 30 An. 1071.
    Fourth — Prescription is predicated on an abandonment presumed from the silence of the party. Troplong, de la Prescription, vol. 1, p.'344.
    Fifth — Such a presumption does not obtain where one has sought by action to judicially enforce his rights.
    Sixth — Our Courts have pushed the principle to the point of holding that even a defective citation interrupts. The theory upon which the doctrine rests, is that non-aetion not erroneous action gives rise to the presumption of abandonment. Satterly vs. Morgan, 33 An. 849.
    Seventh — If citation from an incompetent court does not interrupt prescription of the action to revive, a judgment creditor is alone submitted*to a rigorous and exceptional rule not written in the laws, and entailing on him a punishment for an error of legal judgment which is visited on no other creditor.
    Eighth — He is therefore in consequence of the judicial recognition of his debt a judicial outcast-debarred of a protection given to every other form of debt, even an unliquidated, and open account.
   The opinion of the Court was delivered by

Levy, J.

On the 24th of November, 1868, Lionel L. Levy obtained judgment inithe District Court of the parish of Rapides against Meredith and William S. Calhoun for the sum of $5250, with eight per cent per annum interest thereon from 1st of February, 1867. On the 7th of June, 1878, at the suit of said Levy, this judgment was revived by judgment of the District Court of the parish of Rapides and the original judgment was reinscribed and that of revival inscribed in June and September 1868. On the 7th of May, 1873, an act was passed before Andrew Hero, notary public, in which it was declared that William S. Calhoun sold to his sister, plaintiff herein, for the consideration of thirty-five thousand dollars, his entire interest in the succession of his mother. Levy, treating this sale as a simulation, had execution issued on his judgment, directed to the sheriff of Grant parish, and seized thereunder certain property embraced in the sale of W. S. Calhoun to his sister, as the property of said W. S. Calhoun, and the same was advertised for sale. The plaintiff, M. M. Ada Calhoun, and her husband, G. W. Lane, sued out a writ of injunction restraining the sheriff from making the advertised sale, alleging her ownership of the property seized and averring that Levy’s judgment was improperly revived in the parish of Rapides, and that it is prescribed, and also that the “judgment has never been recorded and reinscribed and no longer bears upon the property.” Defendant, in his answer to plaintiff’s petition, made a general denial, and specially averred the facts of the rendition, recordation, revival and reinscription of his judgment, and the regularity and legality of all those proceedings. He specifically charged that the conveyance from the brother to the sister was “ unreal, fraudulent and simulated, and intended to cover up the property; that W. 8. Calhoun at the time was largely in debt and the parties had signed a counter-letter showing the said sale to be unreal and simulated,” prayed for twenty per cent general and $550 special damages, that said sale be decreed to be fraudu - lent and simulated, and for dissolution of the injunction, etc.

On the same day upon which this answer was filed, plaintiff filed a petition, affidavit and bond for the removal of the cause to the United State's Circuit Court for the District of Louisiana, on the ground that her husband, G. W. Lane, was a citizen of Dutchess County, State of New York, and that the controversy in this suit was and is wholly between herself and husband, citizens of New York, and L. L. Levy, a citizen of this State. To this,petition for removal defendant answered, denying the citizenship of either plaintiff to be in New York, and averring that they are both citizens of Louisiana; he alleged that they have by their injunction suit sought the jurisdiction of the State court, and cannot now decline it, and that they cannot remove an injunction suit — a mere auxiliary proceeding, and that W. S. Oalhoun, under the allegations of defendant’s answer, is a necessary party to the controversy, and that he is a resident of Grant parish, where the suit is now pending. At the September term of court there was a continuance granted, and at the next, December term, defendant filed a peremptory exception, alleging that the petition disclosed no cause for removal, this being an injunction suit, which could not originally have been brought in the United States Circuit Court, and could not be removed to that court from the State court. This exception was sustained by the District Judge, and the application for removal denied.

We will first consider the correctness of the ruling of the court a qua, denying the application for removal.

The question involved is settled in the case of Watson vs. Bondurant, 30 An. 1, where it is held that a mere auxiliary proceeding, by which a third person comes in by way of injunction, to protect his property from being seized and sold under a judgment to which he was not a party, is not removable, under the Act of Congress of March 3, 1875, from the State to the Federal court; and in commenting on the case of Bank vs. Turnbull, 16 Wallace, 190, this Court said : “If, therefore, the proceeding on the part of Turnbull & Co., by whatever name it may be called, was not removable under the act of 1867, as the court expressly decided it was not, it is because a suit means an original suit, not an auxiliary, dependent, supplementary proceeding, by which a third person interferes to prevent the sale of his property, seized under execution, in satisfaction of a judgment in the original suit, to which he was a stranger. If such a proceeding was not a suit, within the meaning of'the act of 1867, and, therefore, was not removable, there is no logic by which it can be shown that the proceeding on the part of Watson in this case is any suit of a civil nature, at law or in equity, within the terms of the act of 1875, and that is, therefore, removable under that act.” Goodrich vs. Hunton, 29 An. 372; 4 Cranch, 169; 1st Otto, 254. The application for removal was, in our opinion, properly refused.

There remains to be considered whether the judgment, under which the execution was issued and the seizure made, was legally obtained in a court having jurisdiction, and whether the original judgment has been prescribed for want of proper revival.

It is contended by defendant that the court which rendered the judgment, sought to be revived, is that which has jurisdiction of the suit to revive; that the jurisdiction is unchanged by the change of residence of the debtor to another parish, or by the creation, subsequent .to the rendition of a judgment, of a new parish carved out of the territorial jurisdiction of the original court, in which new parish the debtor resides; and that the expressions contained in the Acts of 1869, No. 82, creating the parish of Grant, and the amendatory Act of 1870, No. 26, do not vest the District Court of the parish of Grant with the jurisdiction to revive a judgment rendered by the District Court of the parish of Rapides, out of which the parish of Grant was created.

It is true that, under the Act of 1853, No. 274, the citation to a judgment debtor, in an action of revival, is required to be issued from the court which rendered the judgment; but this right or authority may be vested by, statutory enactment in courts other than those which rendered the judgment, and within whose territorial jurisdiction the judgment debtor may reside, as was distinctly held in the case of Hammett vs. Sprowl, 31 An. 325. Let us see if this right and jurisdiction have in the present case been conferred upon the District Court of the parish of Grant, of which the judgment debtor is a resident, and within whose territorial limits he resided when the original judgment was rendered. Section 8 of Act No. 82, of session of 1869, (under which act the parish of Grant was created) provides: “ That it shall be the duty of the clerks of the parishes of Winn and Rapides, immediately after the passage of this act, to transmit to the clerk of the District .Court for the parish of Grant, all petitions, answers, documents and papers appertaining to suits wherein the defendant or defendants reside within the parish of Grant.”

Act No. 26 of the extra session of 1870, amending the act of 1869, creating said parish, further provides: “ That it shall be the duty of the clerks of the District Courts of the parishes of Rapides and Winn, immediately after the passage of this act, to transmit to the clerk of the District Court for the parish of Grant, all petitions, answers, documents and papers appertaining to suits wherein the defendant or defendants reside within the parish of Grant, and also all petitions, orders, bonds and other papers relating to successions, if the administrators thereof reside and the property of such succession be situated in the parish of Grant, and also all papers and matters relating to the tutorship of minors, wherein they, or a majority of them, reside in the parish of Grant; copies of all such suits or papers to be retained in the office of the clerks of the District Courts of the parishes of Rapides and Winn, and the original sent to the parish of Grant. All suits, any successions, whether judgment be rendered therein or not, are to be transmitted, in accordance with this act.”

Section 2 of this act, imposes a fine upon the clerk refusing or neglecting to transfer said suits, papers, etc., within thirty days after the promulgation of the act. Section 4 enacts : “ That all actions taken and judgment rendered after the passage of this act to establish the parish of Grant, dated 4th of March, 1869, shall be null and void, and consent shall not take away the jurisdiction of the court to try such cases contrary to this act, except when there is an equal number of the heirs and value oí the property in each parish as the ease may be; then it shall be, settled by the courts, if the heirs disagree.”

The wording and phraseology of this act is neither elegant nor perspicuous, but a careful consideration of all its features and taking the various sections in context, enable us to • arrive at its unmistakable meaning and intention.

The case of Hammett vs. Sprowl, above referred to, was a suit for a revival of a judgment rendered by the District Court of the parish of Natchitoches, the defendants residing in the parish of Red River. The revival suit was brought in Red River. The law, under which the District Court of Red River took jurisdiction of the suit, is Act No. 78 of 1873, which reads : “It shall be the duty of the clerk of the district and parish courts of Bienville, Bossier, DeSoto, Caddo and Natchitoches, to transmit forthwith to the clerks of the district and parish courts of the parish of Red River, all petitions, answers, documents and papers, appertaining to suits wherein the defendant or defendants reside within the parish of Red River, whether said suits be settled or unsettled; and also it shall be their duty to likewise forthwith transmit as above, all mortuary proceedings had in successions where the deceased died within the limits of the parish of Red River, or where his principal property is situated therein.” Section 2: “ The district and parish courts of the parish of Red River shall have as full and complete jurisdiction over the suits and successions so transferred, as the said courts of the different parishes from whence the same were transferred as now under the law.”

In construing this statute, the Court in that case said : “ We have quoted the statute which expressly gives to courts of Red River, jurisdiction over the suit sought to be revived in this case. It puts the Red River court in the place and stead of the Natchitoches court, vesting it, as regards this judgment, with the jurisdiction of the latter. Now, what was, under existing laws, the power of the Natchitoches courts as regards this judgment? It was the exclusive right to enforce and to revive it. After the passage of that statute the court at Natchitoches could no more revive that judgment than it could enforce it by fi. fa. We regard a proceeding to revive a judgment not as a new suit, but simply as a proceeding in the same suit, to continue and keep alive a judgment rendered therein, and to furnish proof that it has not'been satisfied or extinguished. But, if it were considered to be a new and substantive suit, it is manifest that it would have to be brought in Red River, where all the defendants reside. So, taking either horn of the dilemma, the result is the same.”

The act relating to the parish of Grant requires “all suits, any successions, whether judgment be rendered therein or not,” to be transmitted from the parishes of Rapides and Winn to Grant, where the defendants reside, or the property of successions, etc., is situated in the latter. The word transmit was evidently regarded by the law-makers, as affects this act, as being-synonymous with transfer, for, in the second section, they say that the District Judge shall “ fine said clerk so refusing or neglecting to transfer said suits, papers,” etc.

Now, what is the legal and accepted signification of the transfer of suits, etc. ? It involves the jurisdiction, control, direction, necessary proceedings to be had to carry them to definitive settlement, to full and complete satisfaction. It will hardly be contended that pending suits and unsettled successions were merely to be transmitted to the courts of Grant parish and there held for safe-keeping, while the court of that parish would be powerless to take any action in them; that the papers and documents themselves were to be kept by the clerk and the suits and successions committed to a dead docket, whence they could not be taken for adjudication or decision. The act of 1870, in our opinion, removed all the causes, suits and successions, falling under the conditions mentioned therein, from the parish of Bapides; divested the courts of that parish of all further jurisdiction and control over them, and substituted the parish of Grant, as to such jurisdiction and control, in the stead of the parish of Bapides, vesting the former with all the jurisdiction, authority and judicial power which, before the passage of that act, had attached to the Bapides court.

The judgment of revival being null, the plea of prescription was properly maintained and the injunction properly perpetuated. Under this view of the case, the question of simulation raised by the defendant herein, whose claim as a creditor has been extinguished, cannot be considered in this action between the parties hereto.

The judgment of - the lower court is affirmed with costs.

On Application por Behearing.

Poché, J.

After a mature consideration of defendant’s application to reopen this cause, it is ordered that a rehearing be granted in the case, exclusively on the following question : whether prescription on defendant’s judgment was interrupted by service of the citation for the revival of said judgment, issued by the District Court of the parish of Bapides.

On Behearing.

Fenner, J.

We granted a rehearing in this case solely upon' the question of prescription of defendant’s judgment.

The substantive relief sought by plaintiff in her suit herein, was a perpetual injunction against further proceedings under a writ of fieri facias issued upon the judgment of defendant, Levy, against W. S. Calhoun. This is the sole prayer of her petition. One of several grounds upon which that relief was based, was the charge that the judgment referred to was prescribed; but there were other grounds ample to maintain the relief — notably, that the judgment was more than ten years old and had never been revived. We held that the proceeding and judgment of revival were absolute nullities, because taken in a court having no jurisdiction over the question, and that the judgment, therefore, had not been revived. This was, of course, sufficient to sustain the injunction restraining the execution.

Defendant, however, in his answer affirmed the validity of his judgment and of the proceedings of revival, and prayed for judgment dissolving the injunction with damages, declaring the title of plaintiff tó the property seized to be fraudulent and simulated, and that he be permitted to proceed with its sale under his ft. fa. To this demand, the plaintiff filed a plea of prescription to the judgment relied on by defendant, and excepted peremptorily, on the ground that defendant not being a creditor and having no lien or mortgage on the property, had no right or interest to attack the title of plaintiff.

The final judgment decreed that the writ of injunction be maintained and perpetuated, and “ that the plea of prescription filed by the plaintiff to the judgment and claim of the defendant be sustained.” Our former decree affirmed this judgment. Defendant claims that he is injured by that portion of the judgment which maintains the plea of prescription, because it would operate as res judicata against him in a subsequent action to revive his judgment, contending that the prescription of his judgment, and of his action to revive the same, was interrupted by the citation issued and served in his former revival suit, although brought before an incompetent court.

If the prescription of judgments and of actions to revive them, is subject to the same modes of interruption as apply to prescription of all other rights and actions, it is clear that citation even before an incompetent court, does operate such interruption. C. C. 3518, 3551.

It has been held by our predecessors that the statute of 1853, now Art. 3547, did not-provide an exclusive mode of preventing the prescription of judgments, but left such prescription subject to all the other modes of interruption provided by law. Succession of Patrick, 30 An. 1071.

We fully concur in .the doctrine of that case. The act of 1858, now embodied in Art. 2278 C. 0., provides that “ parol evidence shall not be received to prove any acknowledgment or promise to pay any judgment, sentence or decree of any court, in or out of the State, for the purpose or in order to- take such judgment, sentence or decree out of prescription, or to revive the same after prescription has run or been com-pie'ted.” It is impossible to reconcile this article with the theory that the mode provided in Art. 3547, is exclusive of other modes of interrupting the prescription of judgments.

If, then, the prescription of this judgment was interrupted by the citation' heretofore referred to, the action to revive yet lies under the very terms of the proviso of Art. 3547, which says; “Any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law,” &c.

We find it unnecessary, in this case, to pass upon the plea of prescription at all, and shall not do so; but the foregoing considerations demonstrate the propriety of annulling that portion of the judgrhent appealed from which maintains the plea, leaving parties at liberty to raise that issue in any suit which may hereafter be brought to revive the judgment. Nor, in thus changing our former decree, shall we mulct the plaintiff in the costs of the appeal. The maintenance of the plea of prescription was, in effect, merely a reason for rejecting the reconventional demands of defendant; and as our decree, as amended, will sustain the entire relief sought by plaintiffs, and will not allow any of the counter-relief sought by defendant, the judgment appealed from remains substantially unchanged. We adopt this course the more readily, because, as this particular question of interruption of prescription was never suggested in this Court until presented in the application for rehearing, we may fairly presume it was not urged in the court d qua, and the plaintiff is, therefore, to blame for the error.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged, and decreed that the judgment appealed from be amended by striking therefrom that portion which'sustains the plea of prescription filed by the plaintiff to the judgment and claim of the defendant; and that, in all other respects the said judgment be affirmed, defendant, Levy, to pay the cost of this appeal.


text:
    No. 8052.
    Adolph Verret vs. Robert Bonvillain; and Robert Bonvillain vs. Adolph Verret. (Consolidated.)
    A. had been living a number of years in New Orleans, where he owned real estate. He was unmarried, old and infirm. He left there, taking with him his furniture, and went to the Parish oí St. Mary, to the house of his nephew, where he died a short time after he arrived. His succession was opened both in New Orleans and in the Parish of St. Mary. The question is: where did he reside when he died ? Held that the circumstances of the case show his residence was in the Parish of St. Mary where he went with the intention of remain ing; and that his Succession was legally opened there.
    APPEAL from the Civil District Court for the parish of Orleans. Tissot, J.

      A. L. Tucker for the Administrator appointed in parish of St. Mary,Appellant:
    The law fixes the place of the opening of a succession, “ in the parish where the deceased resided, ifLhe had a fixed domicil or residence in the State,” at the’tirae of his death. C. C. Art. 935.
    “A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” O. C. 41. In ease the declaration provided for in C. C. Art. 42 is not made, “ the proof of this intention shall depend upon circumstances.” C. C. 43; 8 L. 213; 11 L. 178; 12 L. 190; 30 An. 498.
    “ If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicil is acquired by a residence even of a few days. In questions on this subject, the chief point to be considered is the animus manendi8 Cranoh, 279; 13 L. 297; Story’s Conflict of Laws, §§ 46, 47.
    “The actual residence of a person at a particular place, with the intention of remaining there permanently, constitutes the place of his domicil, at least until such intention-to xemain there has been abandoned. And the declarations of the person, where he has no inducement to falsify the truth or to deceive those to whom the declarations are made, are the best evidence of his intention to make his actual residence his permanent residence also.” 8 Page C. R. 519-523-4; 1 Woodbury & Minot’s R. 12, and oases there cited; 27 Miss. R. 704.

      T. M. Gill for the Administrator appointed in New Orleans, Appellee:
    Pirst — Evidence of the loose conversations of a person deceased, is of no weight. 10 L. 355 ; 2 R. 300; 7 R. 112; 6 An. 114. 763-4 ; 8 An. 278; 10 An. 279; 14 An. 275; 18 An. 618; 24 An. 604.
    Second — He who alleges the change of a fixed domicil, must show affirmatively the change.
    Third — The deceased’s succession must be opened in the parish where he resided, if he had a fixed domicil or residence in this State; if he had neither domicil nor residence in this State, his succession must be opened in the parish in which he owned immovable property, or in which his principal effects are. C. C. 935 (929)'; C. P. 929.'
    Eourtb — If opened elsewhere, all proceedings would be absolutely null and void. 3 An. 261; 21 An. 399-401; 26 An. 269-70; 27 An. 351-2.
   The opinion of the Court was delivered by

Todd, J.

August H. Verret died in the parish of St. Mary, on the 2d of April, 1877. His succession was opened in that parish, and Robert Bonvillain appointed administrator thereof, on the 30th of the same month. On the sixth of July following, Adolph Verret was appointed administrator of the same succession by the Second District Court of New Orleans, on representation made that the deceased was a resident of that city at the time of his death. Bonvillain, as administrator, obtained an order from the parish court of St. Mary to sell the property of the deceased, situated in the city of New Orleans. This sale was enjoined by Verret as administrator, on the ground that all the mortuary proceedings in the parish of St. Mary were null because of the succession being improperly opened in that parish.

Bonvillain then brought an action to revoke the appointment of Verret, made in the parish of Orleans, alleging its illegality by reason of the residence of the deceased being in St. Mary when he died.

These suits were consolidated and tried together. . Subsequent to their institution, Bonvillain died, and Philip Patout, having been appointed to succeed him, by the probate' court of St. Mary, became a party to the proceedings. There was judgment in the lower court perpetuating the injunction taken out by Adolph Verret against the sale of the property in New Orleans, and declaring the appointment in St. Mary and the other mortuary proceedings there null, and dismissing the suit instituted by Bonvillain for the revocation of Verret’s appointment; and from this judgment Patout, successor of Bonvillain, has appealed.

The sole question for our determination is, whether the residence or domicil of the deceased, A. II. Verret, was in the parish of St. Mary or in the parish of Orleans at the time of his death, since the law declares the proper place of the opening of a succession to be in the parish “ where the deceased resided, if he had a fixed domicil or residence in the State.” O. C. 935.

The evidence shows that the deceased left the city of New Orleans on or about the' first of March, 1877, and arrived in the parish of St. Mary about the fifth of the same month and died there, as stated, on the second of April following.

The deceased had resided in the city of New Orleans for at least fifteen years previous to his leaving for the parish of St. Mary. He was a man about sixty years of age and unmarried, and had been very infirm for several years. He was accompanied from New Orleans to the parish of St. Mary by his nephew, Robert Bonvillain, who lived in that parish, to whose house he went, and where he died.

Upon leaving, he took with him from New Orleans all his furniture, which consisted of a bedroom set. As stated, he had never been married, and had no family or relations living with him at the time.

If the deceased left New Orleans and went to St. Mary with the intention of making his’ domicil there, the act of leaving coupled with such intention, followed by the act of residing there, would effect a change of domicil from the one place to the other. As more clearly expressed: “A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” C. C. 41.

It is often a matter of difficulty to ascertain the intention of a person, consisting of the operation of the will or condition of the mind. Our law provides that, where that intention is not expressly declared before the recorders of the parishes from which and to which it is intended to remove, the proof of the intention shall depend on circumstances. O. O. 42, 43.

“ Circumstances,” as used in the above article, we construe to mean the acts and words o£ the party whose intention is sought 'to be, discovered, together with his condition and surroundings when the acts were done and the words spoken.

The acts and conditions of the deceased we have already referred to: that he did leave the one parish and go to the other, taking with him his household effects, which, as far as the evidence shows, constituted his movable property; that he was old and infirm, without family or near relations in the place from which he removed; that he went to the house of a nephew — a man of family — where, it might be reasonably supposed, he would hope to find the care and comfort that his condition required.

If the deceased was honest, sincere and truthful — and we have no reason to think otherwise — his words, if he spoke of his intention in making the removal, would be more complete and satisfactory evidence of that intention than his acts and other circumstances just referred to. In fact his words, if faithfully reported, would solve all doubt on the subject. The deceased did make declarations of his intention, and his words spoken and declarations made on the eve of his removing, during the time of his removing, and after reaching his destination or the place to which he removed, have been testified to by numerous witnesses, whose testimony has not been impeached, and whom we have no more reason to disbelieve than we would have to reject any other human testimony. Those declarations were substantialy to the effect, that his intention was to leave New Orleans permanently and make his home or domicil in the parish of St. Mary. "We have scanned the record closely, and find no evidence that contradicts or is inconsistent with the testimony of these witnesses. The witnesses relied on, as showing such contradiction, mainly testify to acts and expressions of the deceased anterior to his removal, and when his acknowledged residence was in the parish of Orleans, and, to some extent, show only the opinions of witnesses touching the matter at issue.

Nor does it matter, as urged by counsel, that the deceased was in the parish of St. Mary only a few weeks, or few days, prior to his death. If the intention referred to existed, the chango was consummated so soon as the act of residing in that parish commenced. As was said in the case of Gravilon vs. Richards, 13 L. 297, “As soon as the will of making a permanent establishment in the country is combined with the fact of residence, the residence, even for a few days, fixes the domicil.” And it was held by the Supreme Court of the United States : “That if it sufficiently appear that the intention of removing wa. to make a permanent settlement or for an indefinite time, the right of domicil is acquired by residence even of a few days. In questions on this subject, the chief point to be considered is the animus manendi.” 8 Cranch, 279. See, also, Story, Conflict of Laws, 46, 47; 11 L. 178; 12 L. 190; 30 An. 498.

Our conclusion is, therefore, that, at the time of his death, the deceased resided or had his domicil in the parish of St. Mary, and that his succession was properly opened in that parish; and from this conclusion it follows, that the judgment of the lower court was erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment appealed.from be annulled, avoided and reversed, and that the injunction in case of Adolph Verret vs. Robert Bonvillain be dissolved, and the appointment of Adolph Verret as administrator of the succession of August H. Yerret, and all probate proceedings in the Second District Court of New Orleans, relating to said appointment and said succession, be annulled and set aside, the appellee to pay costs of both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 7963.
    Mechanics’ & Traders’ Insurance Company vs. Richardson & Cary.
    A party knowingly taking the noto of a firm from on© of the partners for his own debt, cannot hold the firm or the other partners liable without proof of the special authority or ratification, and the burden of proof of the special authority or ratification is on such holder.
    APPEAL from the Fifth District Court for the parish of Orleans. Rogers, J

      H. N. Ogden for Plaintiff and Appellee:
    There was a commercial partnership in existence between John P. Bichardson and George W. Cary, at tho respective dates of the notes sued on.
    An indorsement in blank is presumed to Lave been placed upon a note at the date thereof. See New Orleans Canal & Banking Co. vs. Samuel Templeton, 20th An. p. 341; and Crosby vs. Morton et al., 13 La. p. 357. All of the indorsements upon the notes sued on are, therefore, presumed to have been placed there at the dates of the two notes respectively. The indorsement includes delivery, see Smith’s Mercantile Law, p. 296, “ with regard to the meaning of the term indorsement, it should be remarked that it includes delivery to the endorsee.”
    A note regular in every respect upon its face, indorsed with the firm name by one of the partners before dissolution and actually put into circulation by delivery to the indorsee, also before the dissolution-and after dissolution negotiated by the first to a second indorsee, acting in good faith, and for a valuable consideration, is binding upon all the members of the firm. See Parsons N. <fc B. vol. 1, p. 346.
    The mere possession of a negotiable note imports prima faene that the holder acquired it bona fide for value, in the usual course of business, without notice of any circumstances impeaching its validity, and that he is the owner thereof, entitled to receive the contents of the same from all prior parties thereto. See Daniel's Negotiable Instruments, § 812; 1st Parsons N. & B. 184; Collins vs. Gilbert, 4th Otto, 754.
    The holder of negotiable paper will not lose his right except upon proof that he took the paper with knowledge of the want of right in the transferrer to give him the paper.

      * * Evidence of notice to or of knowledge on the part of the holder of facts which would defeat his recovery must not he ambiguous.” Parsons N. &B. p. 260. It must clearly appear that the indorsee was apprised of such circumstances as would have avoided the note in. the hands of the indorser. Per Woodbury, I. Perkins vs. Challis, 1 N. H. 254. The English rule now is that nothing short of fraud will be sufficient to defeat his right; and Parsons atp. 258 “inclines to the opinion upon high authority that the rule of the late English cases is better adapted to the free circulation of negotiable paper and the true interests of trade.” The negligence, according to this author, “must be such and so ac - companied as to afford reasonable and sufficient ground for believing that it was intentional and fraudulent.”
    The genuineness of the two notes sued on was warranted by their delivery ior a valuable consideration.
    “An indorsement admits the ability and signature of every antecedent party.” Smith's Mercantile Law, pp. *294-95-96.
    A transfer by delivery, if for a valuable consideration, seems to imply a warrranty that the bill or note is genuine. See note (r) to Smith’s Mercantile Law, p.295.
    It appears that Richardson knew that Cary was abusing his authority as a partner. Under the circumstances what was his plain duty. Chitty says, “ When a partner has discovered that his co-partner is in the practice of improperly drawiag, accepting or indorsing bills or notes in the name of the firm, but to accommodate third persons or for his own separate purposes, he should immediately file a bill in equity and obtain an injunction to prevent á repetition of such fraudulent and hazardous practices.” Chitty on Bills, Springfield Ed. of 1849, top paging 48 side, p. 49; Story's Equity Jurisprudence, vol. 1, Sec. 669 and cases cited; Stockdale vs. Allery, 37 Penn. St., 486; Bank of Ameriaa vs. DeEerriet, 23 An. p. 310.

      John A. Campbell and Baijne & Renshaw for Defendant and Appellant:
    A partner using tbe co-partnership name by endorsing it on a note which he had procured a stranger to the firm to make to the firm for his personal accommodation, and who endorses the note himself and offers it for discount to an insurance company, which has no connection with the firm, and of which he is a customer, and receives the accommodation for that company, is guilty ot a fraud, and the insurance company must prove the consent of the other partner to the discount, or he is not bound. 1 Bedarrido, des Sociétés» No. 159 and following sections; 40 Dalloz, Juris; Gen. Société, No. 927; Pothier on Part., § - 101; Kendall vs. Wood, L. R., YI Exch., 243; Leveson vs. Lane, 13 C. B. R., N. S. 278; Rogers vs. Batchelder, 12 Peters, S. C. R. 221; Maulden vs. Br. Bank, 2 Ala. R. 502; Catskill Bank vs. Stall, 18 Wend., 466; Satterfield vs. Compton, 6 Rob., 120; Chitty on Cont., 11 ed., 354-5; Add. on Cont., 76; Call, on Part., § 401, 478.
    After the dissolution of a partnership the retiring partner borrows a sum of money from an insurance company upon his own check. He leaves as collateral security a note, on which he has signed the names of the makers, and which is payable to the firm whose name he endorses thereon. The firm had no interest in the note, and the other partner had no interest in the discount or knowledge of the endorsement. This partner is not liable to the insurance company on the endorsement. Leckie vs. Scott, 10 L. 416; Wait vs. Thayer, 118 Mass; Dan. Neg. Notes, 273, 274.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendants, a firm once composed of John P. Biehardson and George W. Gary, are sought to be held liable, as endorsers, on two notes purporting to have been'drawn, the one by W. A. & C. W. Cary, and the other by J. J. Pierce, and which were duly protested, notice of same having been regularly given.

Richardson denied any liability, specially pleading, that the endorsement was for no consideration enuring to the firm, or to him, as plaintiffs knew, or should have known; that said notes or endorsements were not made or used for said firm, or within the course of its business and by any person authorized thereto; that the notes were received by plaintiffs in a private matter with George W. Cary, totally disconnected with the firm and respondents, as plaintiffs knew or should have known; that the firm was dissolved long prior to the institution of this suit. After trial, the lower court gave judgment for one of the notes, for $1,219 08, and rejected plaintiffs’ demand for the other, for $1,733 39. Prom the judgment against him Richardson has appealed.

The evidence shows that the notes were endorsed by G. W. Cary, in the name of Richardson & Cary, and were subsequently endorsed by him, in his individual name, and used for his individual purposes to plaintiffs’ knowledge, the consideration of the transaction being given to him in his individual capacity; that the notes never belonged to the firm, which had been dissolved prior to the delivery to the plaintiffs, of the note of W. A. & G. W. Cary, the dissolution being known to the plaintiffs.

We think that, under the circumstances of this case, the endorsement of Richardson & Cary, being in the hand of G. W. Cary, and G. W. Cary subsequently endorsing the notes, to the knowledge of plaintiffs, in his individual name, and using them for his individual purposes, to the knowledge of the plaintiffs, these were under the obligation of proving that the transaction had been authorized by John P. Richardson, or that the consideration had enured to him, or to the firm in some manner, which they have not done.

A mortgage of firm property by a partner, in his own name, conveys no title.

The act of each partner is considered the act of the whole partnership, or of all the partners, only so far as that act was within the scope of the business of the firm. Parsons, Ed. 1873, vol. 1, p. 184; 2 Miss. 163; 15 Geo. 197.

Judge Story says: “Every contract in the name of the firm in order to bind the partnership must not only be within the scope of the business of the partnership, but it must be made with a party who has no knowledge or notice that the partner is acting in violation of his obligations and duties to the firm, or forjpurposes disapproved of by the firm, or in favor of the firm.” Story on Part., Sec. 128; see, also, Chitty on Bills, p. 48.

The American adjudications decidedly assume, says Parsons, p. 121; that the third party taking this paper with the knowledge that it was given for the private or personal debt of one partner, knows enough to put him on his guard, and that he is now bound to inquire whether the firm, authorized the use of their name, and can only hold them on the ground that they did-so authorize it in fact, and this he must show-as the foundation of his claim. In other words, the American courts hold the doctrine, that a third party taking from a partner the signature of his firm for his own debt, cannot hold that firm without proof of authority, adoption or ratification by the firm. Parsons on Part., vol 1, p. 184; 6 B. Monroe, 60; 4 Wendell, 168; 30 An. 1291. Multo fortiori is such the case, where the paper is uttered after the dissolution of the firm, as is clearly proved as to one of the notes. Daniel on Neg. Inst., vol. 1, p. 278; 3 Kent 63; Collyer on Part. 544, 127; 1 Starkie, 275; 30 Vermont, 225; 25 Ala. 475.

“ The power of a partner is limited to the business of the firm. He who knows that the partner’s act is not within the business, knows that it is not authorized, and, if all he knows is, that the partner is acting for his own immediate, direct and several benefit, he has no right to presume that the firm are benefited and authorized it.” Parsons on Part., p. 228.

There are some acts in relation to negotiable paper which carry with them the presumption that the partner doing them was not authorized. One of these is the endorsing paper which does not belong to it. P. 235.

“If the firm resists payment, it will be sufficient to show that a co-partner signed the firm name for a private debt due the plaintiff and its defense is then complete, unless the plaintiff reply by showing the assent of the co-partners.” Daniels on Neg. Ins., vol. 1, p. 276; 12 Pet. 299; Collyer on Part., Secs. 490, 491; 28 An. 941; 10 L. 416; 5 L. 49.

Under the circumstances and the law, we cannot hold the defendant, John P. Richardson, liable.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court condemning defendant Richardson to pay $1219 08 with interest and costs, be reversed, and that judgment be now rendered in favor of said defendant rejecting plaintiffs’ demand, and it is further ordered and decreed that said judgment exonerating said defendant from liability for the note of $1733 39 be affirmed, the plaintiffs to pay costs in both courts.

Rehearing refused.

Mr. Justice Eenner recuses himself, having been of counsel.


text:
    No. 7961.
    Mutual National Bank vs. J. P. Richardson et al.
    The rule established in article 326, C. B., debarring a defendant who has denied his signature, from, every other defense, does not apply to a partner denying the firm’s signature executed by another partner. Affirming 29 Ah., 546.
    A partner cannot use the name of the firm as security for the debt of a third person or of himself without special authority from all those composing the firm. A party receiving such security under those circumstances, although not chargeable with actual mala fides, does so at his risk and peril, and cannot hold the firm and its other members responsible, unless upon proof of knowledge, consent or ratification. Review of English and American authorities.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      T. H. Kennedy for Plaintiff and Appellee: -
    An individual loaning money to one member of a mercantile firm and receiving a firm note therefor, has a right to presume that the note is made in the course of the partnership business and binds all the members of the firm. 46 Iowa, 485.
    Whenever a member of the firm gives a note in the firm name, the presumption is that it is given for a partnership purpose. 31 Michigan, 373; Story on Bart., by Gray, Jr., p. 253, note 1; p. 255, note 1, and end of preceding notes; p. 193, § 107; p. 194, § 108 ; 9 Bick. 272, 274.
    Declaration by partner that he is borrowing for the firm binds the firm, whether true or not. 16 Barbour, p. 608; 50 Maine, 442.
    Blaintiff's title impeachable only by the clearest proof of fraud and mala fides, or dishonesty. 68 Maine, 326, 327; 20 Howard, 343 ; 2 Wallace, 110.
    Under the circumstances of this case, taking Cary’s individual note was without significance. Story on Bart, (same edition), page 255, note 1.
    Carrying proceeds of the discount into Cary’s account, also insignificant. Story on Bart. (same edition), pages 237, 238. Pago 236, note, citing opinion of Lord Eldon.
    The fact that the firm’s signature was in Cary’s handwriting, also insignificant. 77 Ba. State Rep. 118; 12 Wright (48 Ba.), 514.
    In connection with article 326, see Story on Bart, (same edition), p. 191, § 104. The theory of the foundation of the power of the members to bind the firm, withdraws this case from the scope of the decision in 29 An. 546.

      John A. Campbell and Bayne & Benshaw for Defendant and Appellant :
    I.
    The plaintiff, a banking corporation of New Orleans, sues the defendant, a merchant of the city, upon two endorsements on notes. The defendant denies his responsibility because he did not sign the partnership name, nor consent thereto, and because they were issued by his partner, Cary, fraudulently, in satisfaction of an individual debt of Cary, with the knowledge of the holder. ;
    The material facts are, that Cary obtained in June, 1879, a discount of his individual note for $10,000 from the plaintiff — to be repaid at the maturity of the note at sixty days after date.
    Cary had made a note of Richardson & Cary, payable to M. Y. Cary (Cary’s wife), for $10,-537.78, payable in January, 1880. He procured his wife to endorse this note and he en‘dorsed it, and left it as collateral security to the former note and the discount. This last note waB without any knowledge of Richardson, in no affair of the firm, and the firm did not owe Madam Cary one dollar of the sum included. This was therefore a gross fraud.

      The sixty days elapsed and the note for $10,000 was not paid.
    Cary carried to the hank about $4,000 and four other notes with endorsements of Richardson & Cary thereon made by himself. The makers of these notes are brothers of Cary, who signed, their names thereto. The others were procured by Cary to be made, so that he might use them fraudulently to pay off the balance on the $10,000 note.
    The notes were not the property of Richardson & Cary, though made payable to them. None of the makers had had dealings with the firm.
    They were creatures of Cary. Cary signed some of the notes for the makers and procured the others. The notes were applied to the payment of so much of Cary’s debt on the note of $10,000.
    II.
    The principles of law we invoke for the defence of the defendant are, 1st, “ that to apply the social name to the payment of an individual debt of one of the partners is a revolting abuse of his authority.
    That this abuse is shared in by a creditor who consents to profit from it. That when it appears that the primary obligation is the personal debt of the partner, and that the partnership name and credit is employed to discharge it, or to secure it, the other partner is not hound unless his consent has been obtained. 1 Bedarride, des Sociétés, No. 159; 40 Dalloz, Jurisp. Gen., Société, No. 927; Pothier on Part., § 101; Kendall vs. Wood, L. R., "VI Exch., 243; Leveson vs. Lane, 13 C. B. R , N. S. 278; Rogers vs. Batchelder, 12 Peters, S. C. R. 221; Maulden vs. Br. Bank, 2 Ala. R. 502; 'Catskill Bank vs. Stall, 18 Wend., 466; Satterfield vs. Compton, 6 Rob., 120; Chitfcy on Cont., 11 Ed., 354-5; Add. on Cont., 76. Coll on Cont,, § 401, 478.
    The original debt to the plaintiff originatéd in a loan of money on an individual note of Cary for the sum of ten thousand dollars for sixty days. Cary negotiated the loan and obtained the money.
    He left as security for this personal loan a note of Richardson & Cary to his wife, and procured her endorsement upon it and passed it. The facts leave no doubt that Cary was acting in fraud of bis firm aud in fraud of the bank in offering as security the social name for his individual use, and the name of his wife, who was incapacitated by the Code from making the engagement. The facts were patent to the bank and the hank acquired no right. Cases cited supra; Leckie vs. Scott, 10 La. 416; 1 Daniel, Negot. Notes, 273, 274.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff seeks to hold J. P. Richardson, as a member of the Arm of Richardson & Cary, liable for two notes, endorsed by G. W. Cary, the other member, in the name of the firm. Cary confessed judgment, but Richardson resists, on the ground that the endorsements were made by Cary, for his personal use, fraudulently, to plaintiff’s knowledge.

On the trial, the notes sued upon were offered to be introduced in evidence; but the defendant objected, unless the endorsements were first proved to be genuine. The objection was sustained, the proof was administered and the notes with the endorsements were introduced in evidence.

Thereupon the plaintiff’s counsel moved the court for judgment against Richardson, in furtherance of the provisions of Art. 326, C. P.; but the court declined so to do, on the ground that the law did not. apply to a member of a firm, denying the firm’s signature, executed by another member of the firm. To this ruling the plaintiff excepted, and' the trial of the case was proceeded with.

There was judgment for the plaintiff, and Jno. P. Richardson has appealed.

The article invoked reads:

“ The defendant, whose signature shall have been proved, after his having denied the same, shall be barred from every other defense, and judgment shall be given against him, without further proceedings.” C. P. 326.

In 29 An. 546, construing that article, with the preceding ones, the Court held that it could receive application in those cases, only, in which the defendant was sued on his personal signature, and, being punitory in its character, it could not be extended, by implication or analogy, to cases not clearly within its terms. The view expressed was declared to be in harmony with Art. 2244 R. C. C., which authorizes heirs or assigns simply to declare that they know not the handwriting or signature of the person they represent, and the ruling in 1 An. 325 is cited in support.

But for those textual provisions of our Codes, and for the judicial exposition made of them, the allegorical saying, that a firm has as many right hands to sign with as it has members who compose it, might receive application ; but, in presence of the law and of .the jurisprudence upon it, it remains, in this instance, without bearing. The ruling of the lower court on the motion, being correct, receives our sanction.

The evidence in the record establishes that, on the 11th of June, 1879, the individual note of G. W. Cary, for ten thousand dollars ($10,-000), at sixty days, secured by the pledge of a note of Richardson & Cary, dated May 7th, 1879, to the order of and endorsed by Mrs. M. V. Cary, payable on January 1st, 1880, for $10,537.78, was discounted by the plaintiff and the proceeds placed by the bank to his credit, in his individual account.

That first note was not paid at maturity, but a few days afterwards a partial payment was made by Cary, in cash. He then offered for discount, to the bank, four notes, which were accepted, and the proceeds realized by the discount, without passing through Cary’s hands at all, were applied to the extinguishment of the amount remaining due on the $10,000 note, which was then, with the collateral, delivered up to him.

Two of the four notes were subsequently paid by Cary, but the two remaining ones, not having been taken up, are now sued upon. That for $2,871 is drawn by W. A. & C. W. Cary, and that for $871 is drawn by Leigh Watkins, to the order of and endorsed by Richardson & Cary, through G. W. Cary. Proper evidence of non-payment, protest and notice, is in the record. No resistance is made owing to the want of any formality in those proceedings.

We do not attach, any importance to the surrounding circumstances under which the original transaction occurred between Cary and the-bank’s vice-president, whose respectability, entire good faith and reliability are far above all suspicion. It is sufficient that the fact exists, to plaintiff’s knowledge, that the partnership signature and property, apparently belonging to it, were used by Cary for the purpose of redeeming his individual note, and for his individual advantage, to debar recovery against J. P. Richardson, who is not shown to have either known or authorized the unusual and fraudulent course pursued by Cary, to the injury of the plaintiff.

An attempt was made to connect the transaction with a purchase of exchange for $15,000 for and by Richardson & Cary; but the two operations were essentially distinct and were not equally known to the two partners. That of Cary was not known at all to Richardson, although that by Richardson, who bought the exchange, may have been, and no doubt was, to Cary’s knowledge.

Evidence was adduced that the exchange operation was conducted and carried on by the firm in the regular course of its business and for its legitimate purposes. That transaction, from whatever standpoint considered, cannot be viewed as, in any manner, susceptible of relieving the plaintiff from the consequences flowing from a knowledge of the circumstances of the several negotiations with Cary. . '

The authorities are numerous and indisputable, that a partner cannot use the name of the Arm as security for the debts or liabilities of a third person, or of himself, without special authority from all those composing the firm. A party receiving the same under those circumstances, although, not chargeable with actual mala fides, does so at his risk and peril, and cannot hold the firm and its other members respon- > sible, unless upon proof of knowledge, consent or ratification.

A partner, it is true, may, as far as the question of physical power may go, but not as far as that of moral right may exist, take the money of the firm, and by a reprehensible appropriation, apply it to the discharge of his personal obligations; but this is so for the sole reason that, as money has no ear-marks, creditors who are offered to be paid, are not bound to inquire into the title of the debtor proposing payment. In some instances it might be derogatory or insulting, and in other cases it might be imprudent to do so. Pothier on Partnership, § 101; 40 Dalloz, J. G. Société, No. 927; Debarride, Droit Com. des Sociétés, No. 159.

“ If a creditor of one of the two partners choose to take from his debtor what he knows to be partnership securites, or partnership funds, without ascertaining whether the debtor has the authority of his partner as to the application of partnership funds, he does so at his own peril, and it is not enough that he has even a reasonable cause to believe in the existence of the authority.” Kendall vs. Wood, Law R. VI, Ex. 243; Leveson vs. Lane, 13 C. B. R. N. S. 278; Parsons. Also, Maulden vs. Branch Bank, 2 Ala. 502, 512, 513; 18 Wend. 466; 1 Ala. 565; 6 R. 120.

In ex parte Golding (Collyer on Partnership, 283), Lord Lyndhurst said ; “ No principle can be more clear than that, where a partner and a creditor enter into a contract on a separate account, the partner cannot pledge the partnership funds, or give the partnership acceptances in discharge of the contract, so as to bind the firm.” The judgment was put on the ground that, unless the other partner assented to the transaction, he was not bound, and that it was the duty of the creditor to ascertain whether there was such assent or not.

In Dob vs. Halsey, 16 Johns. 34, the difference between English and American jurisprudence was said to be merely on the question of onusr it being there on the partner sought to be held responsible, while it is here on the creditor seeking payment. It was there said that there exists no substantial difference whether the note of a firm be taken for a private debt of one of the partners by a separate creditor of a partner pledging the security of the firm and taking the property of the firm to pay his private debt. “In both cases the act is equally injurious to the other parties. It is taking their common property to pay a private debt of one of the partners.” 7 Wend. 326; 6 Johns. 251.

In Rogers vs. Batchelder, 12 Peters, 221, the U. S. Supreme Court, Justice Story being its organ, said: “Whatever acts are done by any partner in regard to partnership property or contracts, beyond the scope of the partnership, must, in general, to bind the partnership, be derived from some further authority, expressed or implied, conferred on such partner, beyond that resulting from his character as a partner. Such is the general principle, and in our judgmentdt is founded on good sense and reason. One man ought not be permitted to dispose of the property, or bind the rights, of another, unless the latter has authorized the act. In the case of a partner paying his own debt out of the partnership funds, it is manifest thpt it is a violation of his duty and of the right of his partners, unless 'they have assented to it. The act is an illegal conversion of funds.” 13 East. 175; 2 Starkie, 347.

See, also, Daniel on Neg. Inst., p. 273, and cases cited; 10 L. 416; Chitty on Cont., 11 ed. 354; Addison on Cont., 76; Collyer on Part., 283; Collyer on Cont., § 401, 478; Story on Part., Sec. 128, 140; Parsons on Part., 2d. ed. p. 221.

If it be true that operations of the character of that under consideration, are not of Unfrequent occurrence in this commercial community, it is more than time that the law governing in such cases be clearly announced, as well for the security of money lenders, as for that of too reliant partners, and for the denunciation of ill-designed and ill-doing associates, unworthy of the confidence placed in them by their fellow members and their fellow men.

We have carefully considered the points made and the authorities quoted by plaintiffs learned counsel; but, while we concede the respectability and earnestness of those authorities, we cannot admit that, under the circumstances of this case, they .can justify us in fixing upon the defendant, Richardson, the liability for which he is sought to be made ■responsible. The presumptions claimed as existing in favor of the plaintiff are rebutted by the circumstances surrounding the original, main and subsequent negotiations between the parties.

See further, Parsons, Ed. 1873, vol. 1, pp. 184, 221, 228; 2 Miss. 183; 15 Geo. 197; Chitty on Bills, p. 48; 6 B. Monroe, 60; 4 Wendell, 168; Daniels on Neg. Inst., vol. 1, pp. 276, 278; 3 Kent, 63; Collyer on Part., 544, 127, 490, 491; 1 Starkie, 275: 30 Vt. 225; 25 Ala. 475; 12 Pet. 299; 28 An. 941; 10 L. 416; 5 L. 49.

We are unable to concur with our learned brother of the District Court.

It is, therefore, ordered and decreed that the judgment appealed from by J. P. Richardson be reversed as far as it affects him, and it is now ordered, adjudged and decreed that there be judgment in favor of said J. P. Richardson, rejecting plaintiff’s demand, with costs in both courts.

Rehearing refused.

Mr. Justice Fenner recuses himself, having been consulted as counsel.