author: Spencer, J. Manning, C. J.

text:
    No. 7033.
    Leopold de Poret vs. A. L. Gusman et al.
    A non-resident debtor sued in this State and personally cited, may have a personal judgment rendered against him for the whole debt due by him.
    A power of attorney authorizing an agent to sue for a specific debt, and to do all in the premises that the principal could do, carries with it the power to make the suit effective by attachment.
    No act done, or declaration made by an agent in his individual capacity, and unauthorized by his principal, can estop him from doing any thing he is authorized to do as agent.
    A creditor’s oath to the fact alone of the non-residence of his debtor, gives him the right to attach the latter’s property. He need not swear that the debtor “ can . not be cited.”
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Me Vea, J. '

      Favrot & Lamon and I. & G. W. Burgess for plaintiff and appellee.

      F. W. & 8. M. Robertson for defendants and appellants.
   The opinion of the court on the original hearing was delivered by Spencer, J., and on the rehearing by Manning, C. J.

Spencer, J.

This suit is brought by, and in the name of, Leopold DePoret against A. L. Gusman, Mrs. Zoe Garig, and Mrs. Zulme Hearsey, the simple and unconditional heirs of Gabriel Gusman, deceased. A. L. Gusman is a citizen and resident of New York, but was in East Baton Rouge at the time of the institution of this suit, and was personally cited.

The petition alleges his citizenship in New York, and that he is about to convert his property in Baton Rouge into money, in order to put it beyond the reach of his creditors, and, therefore, prays an attachment. The affidavit for attachment and the bond were made by one of the defendants, Mrs. Hearsey, as the agent and attorney in fact of DePoret, the plaintiff, under a special power of attorney, which is produced.

The plaintiff’s claim against Gabriel Gusman, and, therefore, against his said children and heirs, is based upon—

1. • An act of partition made August 25, 1866, among the heirs of Esther DePoret, in which Gabriel Gusman appeared as the agent and attorney in fact of plaintiff, one of the heirs, and received for him the sum of $2577 93J. In this act, Gusman explicitly declares himself the agent and attorney in fact of Leopold DePoret, “ by virtue of an act of procuration of record, in book Y of notarial acts of the city of Baton Rouge,” etc.

2. An act of sale by Gusman, as agent aforesaid, of date January 9, 1871, of certain real estate belonging to his principal, in which he acknowledges to have received $618 in money and notes.

Ia the face of these acts and the evidence in this record, it is idle to attempt to dispute the receipt of these sums by Gabriel Gusman. • The testimony of the defendant, A. L. Gusman, himself, who most strenuously contests this suit, shows that his father’s own books disclose its receipt. Nor is there, so far as we can discover, the slightest evidence that he ever paid it over to plaintiff. His books, it seems, contain a statement that he remitted a bill for $2500 to plaintiff at Paris, but it was returned to him, as the plaintiff could not be found. The plaintiff voluntarily remitted all claim for interest on these sums up to 17th February, 1873, the date of Gabriel Gusman’s death, because, we presume, no demand had ever been made on him for the money by DePoret.

It is unnecessary to notice defendants’ bill of exceptions to the introduction of the power of attorney from plaintiff to Gusman as being •the copy of a copy, since the act of partition contains ample proof of the ■agency, and even speeiñes the book in which the mandate is recorded.

On the merits of the case, the existence and justice of this debt, there can be not the slightest doubt. In fact, each and every one of these heirs, and especially A. L. Gusman, are estopped from denying it. They over and again, in their transactions about this estate of their father, ■admitted its existence, and even set apart property to sell to pay it.

But it seems that Mrs. Hearsey, one of the heirs and a defendant herein, in the course of these attempted settlements of the father’s estate claimed that she was owner of these claims — that DePoret, the plaintiff, had given them to her — and in certain suits between her and her co-heirs she swore that she owned them, and A. L. Gusman swears that on one occasion she exhibited to him a paper which she said was evidence of the gift, but she did not let him read it. These declarations were made in 1873, and even as late as May, 1874. The present suit was brought by DePoret in September, 1874, and the power of attorney under which Mrs. Hearsey made the oath and gave the bond for attachment bears date in France, November, 1873. ■

In the present suit, September, 1874, she swears that DePoret is the owner. She has certainly by her conduct, averments, and oaths placed herself in a position that needs explanation. She is a co-defendant in this suit, and yet appears as agent of the plaintiff, in swearing out an attachment against her brother and co-defendant, A. L. Gusman. True, this is a suit against joint heirs, for their virile shares of a debt of the ancestor, and might have been brought against each one separately. See Acts of 1871.

If it were made to appear that her co-defendants had been prejudiced in their defense by this conduct of hers, we should be indisposed to tolerate it. But, as we have said, there is no doubt of the correctness of this claim. The only objection ever made to it was to the interest, as no demand had been made, and Gusman’s books showed an effort to pay it, or at least part of it. But this objection has been removed by the remission which has been made of all interest prior to Gusman’s death.

It is not for us to reconcile Mrs. Hearsey’s inconsistencies. I£ she were ever the owner — if* DePoret ever in fact gave or promised to give her these claims — still it is true that at the time this suit was instituted she disavows it and swears that DePoret was the creditor; and as we do not perceive that the defendants, A. L. Gusman and Mrs. Garig, have any real defense to the claim, in any body’s hands, we do not think the question material. At all events, there is no proof binding on DePoret that he ever parted with his undisputed ownership. Mrs. Ilearsey’s declarations in her own name and interest, and for her own purposes, out of the presence of DePoret, that he had given them to her, certainly can not be held to have divested him of his rights.

We, therefore, hold that so far as this record discloses, DePoret is still the creditor, and is not estopped or barred from asserting his rights by Mrs. Hearsey’s declarations and acts. The fact that in November, 1873, DePoret executed a power of attorney to her as his agent to sue for and collect this very debt, is evidence that he then considered himself the creditor, although even after the receipt of this power it seems that Mrs. Hearsey continued for some months to assert her ownership.

We repeat that the debt is fully established against Gabriel Gus-man, and as it is admitted that the defendants are his pure and simple heirs judgment was properly rendered in personam against each for their virile share. We can not assent to the proposition of defendants’ counsel that the suit against A. L. Gusman, being by attachment, the whole proceeding falls as to him, if the attachment be set aside. He was anon-resident of the State, temporarily in.Baton Rouge, where the succession of his father was opened, and was personally cited. A party having no residence or domicile in the State may be cited wherever found, and, upon such citation, may be personally condemned. O. P. 165, No. 5.

A. L. Gusman, however, contends that the attachment of his property was illegal—

1. Because the power of attorney under which Mrs. Hearsey acted was insufficient.

2. Because Mrs. Hearsey was estopped from making the affidavit, etc., as agent of DePoret, because of her previous contradictory judicial admissions and sworn declarations anterior and subsequent to the date of the said power.

3. Because the allegation that he was about to convert his property, etc., was false, and because the other allegation that he was a citizen of New York and non-resident of this State was insufficient of itself to warrant the attachment.

4. Because DePoret was not the owner of the claims, etc. This last ground we have already considered .in connection with the merits, and it need not be further noticed.

1. As regards the sufficiency of the power. It appoints Mrs. Hear•sey agent and attorney in fact “ for me and in my name and stead, to ask, demand, sue for, recover, and receive all such sums of money, debts, goods, rents, dues, and accounts, * * * * as shall be due, owing, payable to, belonging to or detained from me, giving and granting unto my said agent my full and whole power, strength, and authority in all matters pertaining to the several successions of Esther'Mainville, Esther DePoret, and Gabriel Gusman, deceased, to sue for and receive the amount for me drawn by my representative, Gabriel Gusman, in the lawful partition of August 25,1866, and to recover the value or possession of the lot, etc., known as “ Hall’s Bow,” received and invested by my aforesaid representative, with all interest, etc., * * * and I hereby empower my said agent * * * * to do all and every other act or acts, thing or things, etc., which may be needful and necessary in the premises * * * * as fully to all intents and purposes as I might or could do, if personally present,” etc.

We think that this power specially authorizing the agent to sue for these specific debts, and to do all and every act and thing in the premises which the constituent could himself do, carries with it the power to make that suit effective by attachment, if deemed necessary. It is a much stronger case than that of Dwight vs. Weir, 6 A. 706. Upon the authority of that case, and of Fulton vs. Brown, 10 A. 350, as well as upon the terms of the instrument, we think the agent was authorized to sue out the attachment in this case.

2. As to Mrs. Hearsey being estopped from making the oath and giving the bond, etc., in this case, as agent of DePoret, we are unable to see in what way her acts, done in her own name and for her own interests and purposes, can be pleaded as an estoppel of DePoret. This ■suit is brought by DePoret, who shows by authentic evidence his right to the money sued for. Can the unauthorized assertion by her, out of his presence, of the ownership of his rights, divest him of them ?

The case of Gilbert vs. Hollinger, 14 A. 441, was where plaintiff’s agent in a suit in the United States court swore out an attachment under allegations that the defendant resided in Louisiana, and then voluntarily abandoned and discontinued the suit, renewing it on same day in the State court under allegation that defendant resided in Alabama. In both cases he was acting as agent, and under the rule qui faeitper aliumfacitper se, the court properly held that the plaintiff could not maintain his attachment in the face of these his contradictory allegations. So, in the case of Howell, Tax Collector, vs. The Sheriff, 27 A. 701, had the second suit been a contest between the State and the seizing creditor, can any body suppose that Howell’s declarations in the first suit, wherein he claimed the property in question as his own, would have estopped the State from asserting its ownership and proving it, if need be, by Howell himself ? The doctrine of estoppel by the acts or declarations of an agent, must, in the nature of things, find its application only when those acts and declarations were done or made by the agent as such. In the case before us the acts and declarations of Mrs. Hearsey pleaded in estoppel were not done or made as agent of Poret, but avowedly in her own name, interest, and behalf. We can not see that they prevent her, as Ms agent in this suit, verifying his allegations by her oath. Besides, there is not necessarily any inconsistency in her claiming to be owner of a chose in action in January or February, and afterward, in September, swearing that another person was then owner of it. Both statements might be true.

3. Article 240 C. P. enumerates the cases in which attachments will lie. The second one is “ when the debtor resides out of the State.” The mere fact of non-residence gives the right of attachment, even when the debtor is present in the State. 1 N. S. 412 ; -18 A. 526, 305. But the counsel contends that article 240 is modified by article 243, and that the words “ so that citation can not be served on him,” refer to and qualify, not only the preceding words “ conceals himself,” but also the words “ resides out of the State,” so that in the counsel’s view it is not sufficient to swear that “the,debtor resides out of the State,” but also that “ he can not be cited.” This is an error, and will be manifest by a simple comparison of the two articles. Article 243 simply repeats the provisions of article 240, which in its third paragraph gives attachment “ when the debtor conceals himself to avoid being cited,” etc. Article 243 repeats when the debtor “ conceals himself so that citation can not be served on him.”

The court below gave judgment for plaintiff for the amounts claimed, with interest, from 17th February, 1873, at five per cent, and maintaining the attachment against A. L. Gusman. We think the judgment is correct, and it is, therefore, affirmed at the costs of appellants.

On Rehearing.

Manning, C. J.

We are not disposed to change our decree previously made, as upon re-examination we think it correct. Therefore

It is ordered and adjudged that our former decree remain undisturbed.


source: Caselaw Access Project

author: Spencer, J. Marr, J.

license: Public Domain

text:
    No. 7008.
    J. Mat. Wells, Jr., Executor, vs. F. M. and Ida Wells.
    One who holds as owner peaceable, public, and uninterrupted possession for ten years of an immovable which he has acquired from one whom ho honestly believed to be the real owner, under a title translative of the property, acquires by prescription the legal ownership of the immovable.
    Whoever alleges bad faith in the possessor of property who claims a title to it by prescription, must prove the bad faith.
    The universal legatee of a succession-who has accepted the same, and who has also qualified as exocutrix, may, in her capacity as owner, make a valid sale of the property of the succession without any order of court authorizing her to act.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Hunter, Judge ad hoc.

      R. J. Bowman for plaintiff and appellant.

      James G. White for defendants and appellees.
   The opinion of the court was delivered on the original hearing by Spencer, J., and on the rehearing by Marr, J.

Spencer, J.

Walter O. Winn died in 1860, without ascendants or descendants. By olographic will he left his wife, Mary E. Winn, universal heir and legatee, and appointed her executrix. This will was duly probated, and she qualified as executrix. His estate was worth about half a million of dollars, and his debts about $120,000. The widow took possession of the estate, and seems to have dealt with it pretty much as her own from the death of her husband in 1860 to 1870, when her attorney filed what purports to be an account of her administration.

In the fall of 1862 she sold to E. M. and Jefferson Wells, for $20,000 cash in Confederate money, one fourth interest in the Lodi plantation in Rapides parish. The sale was one by public act, and duly recorded, and the purchaser went into immediate possession. In 1864 E. M. and Jeff. Wells transferred the property so acquired to their wives, the defendants, as a dation en paiement, by public act. In 1874 the public buildings and offices of that parish were destroyed by fire, and we have only secondary evidence of the contents and nature of this title from Mrs. Winn to the vendees aforesaid. The present suit is brought by the plaintiff as public administrator and dative executor of Walter O. Winn, the widow having been destituted by decree of court. The object of the suit is to recover and restore to the estate of Winn the fourth of said plantation so sold, and to annul the act of sale thereof, as having been made by the executrix without authority of law.

The defense is that Mrs. Winn was the universal heir and legatee; that she accepted the succession unconditionally, disposed of its effects as owner, and that thereby the estate of Winn ceased to exist and was lost by confusion in that of the heir. Finally, the defendants plead the prescription of ten years.

Under the view we have taken of the case it will be unnecessary to decide the question whether a sole heir or universal legatee, who has been named, appointed, and qualified as executor, can by extra judicial acts of unconditional heirship, and without having previously provoked his discharge as executor, terminate the existence of the succession of which he is heir and executor.

We think that under the proofs in this record the plea of prescription must prevail. In determining this question it is matter of no moment whether Mrs. Winn was or not owner in law or fact; nor whether in law or fact she had a right to sell this property. If prescription could only be pleaded in favor of a party who had acquired from the true owner, or one having legal authority to sell, it would be a very useless right. The very object of this prescription is to quiet the titles of those who may have acquired from persons not owners, and having no right to sell; “ as happens to him,” says article 3451, O. C., who buys a thing which he supposes to belong to the person selling it to him, but which in fact belongs to another.” Again, article 3450 says; “ By the term just title in cases of prescription we do not understand that which the possessor may have derived from the real owner, for then no prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the property.” Article 3485 : “ By the phrase transfer the property we understand not such a title as shall have really transferred the property, but a title which by its nature would have been sufficient to transfer the property, provided it had been derived from the real owner, such as a sale, exchange, etc.” So that the questions in this case are not whether Mrs. Winn was the owner, and had the right to sell the property, but whether the purchasers at the time of buying believed that she was owner, and whether the attempted transfer was sufficient in terms and of nature to transfer the property had it emanated from the true owner ? If so, and if the defendants have possessed as owners under such transfer, peaceably, publicly, continuously, and unequivocally, for ten years before this suit was brought, the prescriptive title is complete. See O. C. 3453.

There is no doubt that Mrs. Winn did in 1862, by public act duly recorded, sell and deliver to the defendants, E. M. and J. Wells, the land in controversy, at the price of §20,000 cash. Both vendees swear that they bona fide believed her to be absolute owner, and knew nothing of her holding the position as executrix of the deceased husband, of whom she was heir. That she treated the property as her own, and sold it to them as her own, and that they and their vendees have had peaceable, public, continuous possession as owners ever since. Their evidence is, we think, in the main corroborated by that of Judge Ryan, who has for years, in fact since Winn’s death, been the attorney of the succession. There is no proof to the contrary of these statements. There is no evidence to show that E. M. and J. Wells at the time of their purchase knew that Mrs. Winn was executrix. It matters not what they knew afterward, since “ it is sufficient if possession has commenced in good faith.” C. C. 3448. “Good faith is always presumed in matters of prescription ; and he who alleges bad faith in the possessor must prove it.” O. 0. 3447.

Citations were issued and served in this suit in April, 1876, more than thirteen years after the date of the sale in question. The judgment below maintained the defendants’ title, and is, we think, correct.

• It is therefore ordered and decreed that the judgment appealed from be affirmed with costs.

The Chief Justice declined taking any part in the decision of this cause.

On Rehearing.

Marr, J.

The testimony in the record satisfied us that the title under which defendants hold the real property in question was protected by the prescription of ten years ; and we affirmed the judgment of the district court in their favor, on that ground alone, pretermitting the expression of any opinion as to the right of Mrs. Winn, as executrix and universal legatee under the will of her husband, to dispose of the property belonging to his succession by private sale.

It seems that we were in error as to date of the death of Walter O. Winn, which actually occurred in 1861, instead of 1860. This is not material, because the sale under which defendants claim was made in 1862 ; and they were cited in this casein April, 1876. We do not propose to re-examine the question of prescription ; because no suggestion has been made which induces us to doubt the good faith of the authors of the title of defendants : and for the additional reason that we think their title is not dependent on the lapse of time.

The will on which the rights of Mrs. Winn depend is as follows :

“ I, Walter O. Winn, make this my last will and testament; I appoint my beloved wife, Mary E. Winn, my executrix and universal legatee. I leave to her all the property, real and personal, of which I may die possessed, or own.”

There were no forced heirs, and no particular legatees ; and by the t-n’ins of the Civil Code, in such case “the universal legatee by the death of the testator is seized of right of the effects of the succession, without being bound to demand the delivery thereof.” Article 1609’ (1602).

It is true one can not be held as heir, whether legal, ab intestate? or instituted by will, without having accepted that quality; but it is equally true that this acceptance may be either express or tacit. It is equally obligatory and effectual in the one case as in the other.

“ It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.

“ It is tacit when some act is done by the heir which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.” B. O. 0. article 988.

Shortly after the death of her husband, Mrs. Winn disposed of certain slaves of the succession by exchanging them for others. As heir, universal legatee, she had a perfect right to do this; as executrix, she could have done no such thing. In 1862 she sold the real property in question by notarial act to the authors of the title of defendants. As heir, universal legatee, absolute owner under the will, she had a perfect right, full power to do this ; as executrix, she had no such power. During the war Mrs. Winn removed from Bapides parish to the State of Texas, with the slaves and movable effects of the succession, and did not return to Louisiana until after the close of the war. As executrix, she could not have been permitted to take any part of the property beyond the limits of the jurisdiction of the probate court, certainly not beyond the limits of the State ; as heir, owner, she could do what she pleased with her property.

On the return of Mrs. Winn from Texas suits were brought against-her, in one of which, at least, that of Gasquet, she was charged as heir, universal legatee, and as having accepted, purely and simply; and in that quality judgment was rendered against her. This was the acceptance of the quality of heir in a judicial proceeding. In 1867 Mrs. Winn made a donation to her mother of a plantation which belonged to the succession ; and about that time she married, and removed to another State with her husband.

In his reasons for judgment, the judge ad hoc states that the only voluntary appearance of Mrs. Winn, and acknowledgment of her capacity as executrix, was in 1870, when a petition was presented by her, or in her behalf, for the sale of certain lands of the succession in Madison parish.

In 1869 her attorneys filed a tableau of debts, at the instance of a creditor ; and in 1874 proceedings were instituted to destitute her. She was destituted of her office as executrix by decree of this court in 1875, upon the grounds that she had sold the property in question in the year 1862 ; and that she had ceased to be a resident of the State. She was represented in that case by a curator ad hoc; and it does not appear from the report that the court considered or passed upon the fact that, she was universal legatee.

The acts of Mrs. Winn are not equivocal; but when we consider that the succession of her husband was estimated at over $500,000, and the debts amounted to only about $125,000, there can be no doubt as to her intention. All her dealing with this succession shows, beyond doubt, that she had unqualifiedly, in authentic acts, and in judicial proceedings, accepted the quality of heir; and she could not have resisted the demand of any creditor against her personally as heir.

In Duplessis vs. White, 6 A. 514, the executrix, who was also sole heir of the testator, sold real property of the succession at private sale. The court said: “ Nothing prevented her from accepting the succession purely and simply, and at once taking possession as heir. The fact of her selling the property in that capacity amounts to such an acceptance ; and the mention in the act that she was executrix was immaterial, and affected neither her rights nor her obligations as heir, pure and simple.”

The case of Bird vs. Succession of Jones, 5 A. 643, is wholly different. By her will Mrs. Jones directed: 1. That all her just debts be paid, “ and if any thing be left, I desire it to be disposed of as follows: 2. I give and bequeath to Boswell Henderson Jones all the property which by law I have a right to dispose of, and make him my universal legatee. 3. I appoint Boswell Henderson Jones my executor * * * and give him seizin of my estate; and request him to see that the intentions herein expressed be carried out.” -

Jones qualified, and he compromised with the forced heirs. One of his creditors sought to • subject the property of the succession to the payment of the debt. Jones answered that he had taken possession as executor, and held the property with the intention of paying the debts, and well knowing that only the residue after such payment belongs to him. ■

It is clear that he did not intend to accept as universal legatee; that, he intended to administer as executor, and to pay the debts of the succession as he was charged by the will to do ; and that he could not have acquired any right or title as universal legatee except to such residuum as might be left after paying the debts of the succession, the first charge imposed upon him by the will, the injunction with which it closes.

It is therefore ordered that our decree heretofore pronounced in ■ this case on the seventh March, 1878, remain undisturbed; and it is-affirmed.

The Chief Justice recuses himself.


author: Egan, J.

text:
    No. 6785.
    Henry Barth vs. Mrs. Louisa Kasa.
    Even in eases when a married woman has executed her note and mortgage on her property to secure it, under the authorization of the judge, she may prove by parol evidence that the note and mortgage were obtained by fraud, and that ' their consideration was a debt of her husband.
    j^PPEAL from the Sixth. District Court, parish of Orleans. Bightor,

      H. D. & Chas. 0?. Ogclen for plaintiff and appellee.

      Cotton & Levy for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The defendant is sued upon a promissory note and mortgage given to the plaintiff, as stated in the public act of mortgage, for the “ amount of a loan in lawful current money of the United States, now made to her.” The necessary authorization of the judge to her, as a married woman, to make the loan and mortgage was procured and appears in evidence annexed to the copy of mortgage. The defense is that no loan was in fact made as stated in the mortgage or under the authorization, but that defendant was induced in error of fact and through the fraud and misrepresentation of her deceased husband, and of the plaintiff, Barth, to sign the note and mortgage without knowing what they contained till long afterward, during the last illness of her husband. That in fact they were without consideration as to her. That she received no money as stated in the mortgage, and that the real consideration for the note and mortgage was an antecedent debt of her husband to Barth, and that they were, therefore, given “ in fraudem legis,” and are null and void and without obligation upon the defendant. She offered to prove the facts set up in the answer on the trial by her own testimony and that of several other witnesses, all of which was objected to by the plaintiff’s counsel upon the ground that the statutory authorization of the judge had been obtained, whereby the act of mortgage had the same effect as if made by a “feme sole,” and made full proof against her, and that no parol evidence could be received to contradict or vary the act of mortgage, or of what might have been said before or at the time or since the signing of the act. The objections were sustained and defendant’s counsel excepted.

This presents the solo question necessary for our consideration in the case. It is conceded by both counsel that prior to the act of 1855, now embodied in the Bevised Statutes and Bevised Civil Code of 1870, the burden of proof to bind the wife would have been upon the plaintiff, and it is further conceded by defendant’s counsel that under that statute where the judge’s authorization has been obtained as required by the statute, the burden of proof rests on the wife to show that she is not bound for some legal reason. We think this view of the law is correct In Conrad and Husband vs. LeBlanc, Sheriff, et al., 29 A. 123, we held that where the judge’s authorization was had authorizing the wife to execute a mortgage for a certain sum and purpose, and it was executed for a different sum and ■ for some other purpose, it did not come within the statute nor relieve the creditor from the burden of proof when the facts appeared on the face of the mortgage. In a more recent case of Claverie vs. Gerodias and Husband, 30 A. 291, where the authorization was obtained and the mortgage on its face executed in accordance with it, we held the wife not bound by the note and the mortgage upon proof of fraud and collusion, and that the purpose of the mortgage was really to secure a debt of the husband or of the community, and the mortgage note so given was null and void in the hands of the mortgagee. It will hardly be pretended that a “feme sole” would not be allowed to avoid the effect of a similar note and mortgage to those here sued on on the ground of error and fraud, or that she would not be allowed to make proof of the fraud by simple presumptions, by legal presumptions, as well as by other evidence,” to use the language of the law, C. 0. art. 1848, (formerly 1842). It would be indeed singular if a married woman, who by the terms, of the statute is placed upon the same footing as a feme sole, should not be allowed to make similar proof. The terms “ full proof” in the statute must be construed with reference to its objects and other provisions and language, and when the judge’s authorization has been obtained it does make that proof, so far as to place her as a feme sole and to hold her bound like any other person, but no more and ho farther. Fraud vitiates the most solemn contracts, and when directly attacked on that ground, parol or other evidence may be received to prove it, as has often been decided, otherwise there would be no relief. See 5 R. 354 ; 4 L. page 348 ; 2 A. 93 ; 5 A. 572 ; 16 L. 311, as to parol evidence to prove error. See, also, 10 A. 515; 13 A. 207, Montgomery vs. Chaney, to the effect that under a charge of fraud all the facts and surrounding circumstances attending the transaction may be proved by parol evidence. It may be that the defendant might be able to show that the note and mortgage sued on were not given in accordance with the judge’s authorization, and if so, we know of no law or principle to prevent it as against the mortgagee. The books are full of cases in which married women, prior to the statute of 1855, and since when it was not invoked, have been allowed to prove that obligations contracted by them in the most solemn form and with the fullest acknowledgment of separate benefit' from the debt or obligation, were in fact for the debts of the husband or of the community, and to be consequently discharged. It is not then the form of the evidence of the debt which controls the matter of proof and the means of evidence. It is the disability of the party, the wife, under the law to enter into the contract “in fraudem legia.” The legal effect of the statute under consideration is to shift the burden of proof where it is complied with, and not the means or character of evidence. If, indeed, the debt for which the note and mortgage were given was that of the husband, it was “in fraudem legis,” and may be •shown by any competent evidence. If it was so, it is not protected by the statute, because not contracted in accordance with it. The fraud may have been perpetrated even after the authorization in the passage of the act itself for another and different purpose, as we have already seen was done in two cases cited. The defendant should have been permitted to prove the allegations of her answer. The evidence was improperly rejected. .

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and the case remanded to be proceeded with according to law and this opinion, and that plaintiff and appellee pay costs of appeal.


text:
    No. 7106.
    The State vs. William von Sachs et al.
    The statement made by an accused, while in prison on the charge of larceny, to the officer in charge of him, that " if you, (the officer), will take me out of jail, I’ll turn up the money,” is not admissible in evidence against the accused.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      Simeon Belden for defendant.
   The opinion of the court was delivered by

Egan, J.

This is a prosecution for grand larceny. The accused, Won Sachs, was found guilty and sentenced to seven years imprisonment in the Penitentiary. The only question for our consideration is presented by a bill of exceptions to the reception in evidence of a statement or confession made by the accused while in prison under this •charge, to one of the officers, to this effect, “ If you will take me out of jail, I’ll turn up the money.” The bill states that this was “ part of a •confession made by the accused, drawn out by the hope and offer on the •part of the witness to assist him if the money could be found through him,” which had been ruled out by the court. The judge states “that 'he refused to consider this statement as a confession implicating the accused under the charge for which he was being tried — grand larceny— ■as it was possible that the accused might have knowledge as to the whereabouts of the stolen property without having had any connection with th,e theft, and that his statement was no admission by the accused that he had committed the theft.” It may be very true that the statement of itself was not a direct and circumstantial admission that the accused had committed the theft, but when we consider that he was then confined under a direct charge of -having committed it, the admission would necessarily be viewed very differently from the same statement made by one not suspected or charged with the larceny. That it was considered as having an important bearing upon the guilt of the accused is manifest from the State having offered it in evidence on the trial, and that it may have been so considered by the Jury and therefore have had an important bearing on the question of the guilt or innocence of the accused, who was charged with the larceny, among other things, of two hundred and fifty dollars in United States currency, is not only probable, but very natural. We think that the statement or confession made under such circumstances should not have been received, as it comes within the prohibitions of the law. 1 Greenleaf’s Ev. 1219, et seq., title Confessions; State vs. Garvey and Earle, 25 A. 191.

It is therefore ordered and decreed that the verdict and sentence appealed from be and they are set aside and avoided, and the case remanded to the court a qua to be further proceeded with according to law and this opinion.


author: Spencer, J.

text:
    No. 6694.
    Thos. E. Helm et al. vs. Meyer, Weis & Co.
    A consignee wlio has made advances on cotton shipped to him has a right of pledge on it, and its proceeds, for the re-imbursement of those advances; and until the debt due for those advances is paid, he is not bound to accept, or pay any drafts drawn on him by the consignor against said cotton, at, or about the time it was shipped, in favor of a third person who had discounted the drafts for the consignor, and thus enabled the latter to buy the cotton shipped to the consignee.
    In the absence of any express or implied agreement, a party is not compelled to pay a draft drawn on him merely because he has been in the habit of paying similar drafts.
    It is not necessary to record a pledge to make it effective as to third persons, where the object of pledge comes into the actual possession of the pledgee before any conflicting lien has attached to it.
    REPEAL from the Fourth District Court, parish of Orleans. Houston,

      Merrick, Hace & Foster for plaintiff and appellee.

      B. F. Jonas for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

In the spring or early summer of 1876 the firm of D. Hiller & Co., of Canton, Miss., being largely in debt to Meyer, Weis & Co., of New Orleans, sent an agent or partner to New Orleans with instructions to negotiate a further advance of $2000 by Meyer, Weis & Co., to enable said firm of Hiller & Co. to go on with its business. This agent or partner, Levy, effected an arrangement with Meyer, Weis & Co. to this effect, to wit: That Meyer, Weis & Co. would advance D. Hiller & Co. $2000 additional, taking their note, due December 4, following, and secured by the note of one Keiffer, due in February following, for same amount, as collateral; said D. Hiller & Co. promising to ship cotton to sufficient amount on or before maturity of said note, and during the season, to cover it, they having the privilege of drawing for cotton purchases on Meyer, Weis & Co. from time to time, against the cotton shipped, but to leave margins sufficient to meet the said advance of $2000 on or before its maturity, December 4,1876. From August, 1876, to January, 1877, many shipments were made, and many drafts drawn by Hiller & Co. on Meyer, Weis & Co. These drafts were fifty-seven in number, and were all drawn in favor of Helm’s Bank, of Canton, which was induced, as its cashier swears, to cash all these drafts of Hiller & Co. upon their representation that Meyer, Weis & Co. had agreed to pay all drafts drawn by them in favor of said bank for cotton bought and consigned to Meyer, Weis & Co.

On January 11,1877, Hiller & Co. shipped from Forrest, Miss., eight bales of cotton ; on January 12, from same place, one bale cotton, and on January 16, from same place, seventeen bales of cotton ; in all twenty-six bales. These shipments were for account of the shippers, and consigned to Meyer, Weis & Co. On January 11, Hiller & Co. by letter advised Meyer, Weis & Co. of the shipment of the first nine bales, and on the sixteenth January by another letter they advised the shipment of the seventeen bales. In these letters there'is nothing said of any draft being drawn against said shipments. But on the eighteenth January, Hiller & Co. drew a draft on Meyer, Weis & Co. in favor of Helm’s Bank for $1540, and in a letter of that date say they inclose bills lading for the twenty-six bales shipped from Forrest for their own account, and advise that they have drawn said draft against said shipment.

Meyer, Weis & Co. received and sold the cotton, but refused to pay the draft drawn against it. Thereupon, plaintiff brings this suit, alleging in substance, first, that there was an express agreement between Meyer, Weis & Co., Hiller & Co., and the bank that the former would pay all drafts drawn by Hiller & Co. in favor of the bank for purchase of cotton. Second, that having been advised by letter of January 18, inclosing the bills of lading, of the drawing of said draft on the proceeds of said cotton, the receipt and sale of the cotton was an implied acceptance of and promise to pay the draft. Third, that Hiller & Co. having paid for the cotton with the money received on the draft, Meyer, Weis & Oo. are liable for money had and received for their use, etc., and, fourth, that the bank took the draft entirely on the faith and credit of Meyer, Weis & Co., who had always paid promptly the drafts of Hiller & Oo. for like purposes.

The defense is a general denial, and that defendants had the privilege of factor and consignee upon said cotton, to secure the advances made upon it as well as the amount due as balance on previous account.

As regards the first proposition of plaintiff, that there was an express agreement between Meyer, Weis & Oo., Hiller & Oo., and the bank, it is certainly not sustained by the evidence, which conclusively shows that Meyer, Weis & Oo. knew nothing about Helm’s Bank; that in the arrangement with Hiller & Co. nothing was said about it, or concerning it. We are satisfied that Meyer, Weis & Oo. made no such agreement. Levy, the agent of Hiller & Co. in effecting this arrangement with Meyer, Weis & Oo., swears there was no mention of Helm’s Bank. Keiffer, the surety of Hiller & Oo., states the same; Meyer and Weis the same. The only witness who swears that there was such an agreement is Daniel Hiller, who was not present when the arrangement was made with Meyer, Weis & Oo. by Levy, and is evidently swearing recklessly. The cashier of the bank swears that Hiller told Mm there was such an agreement, but knows nothing of his own knowledge. There is no doubt that Hiller so informed the cashier, but that does not bind Meyer, Weis & Co.

Second. As to the implied promise resulting from the acceptance of the consignment, and the sale of the cotton.

There can be no doubt of the correctness of the general proposition that a consignee who accepts a consignment, with the advice and notice that the consignor had drawn on him for a stated amount against the goods consigned, impliedly promises to accept and pay the draft, and on refusal may be sued as for breach of contract. But that is not the case here presented. There are other circumstances which we think render that rule inapplicable.

In the first place, Meyer, Weis & Co. had advanced $2000 to Hiller & Oo. on the promise of re-imbursement by those shipments of cotton during the season. In the second place, those shipments were made “for account of the consignor,” without qualification. In the third place, the shipments were made on the eleventh, twelfth, and sixteenth January, and letters of advice of these shipments, dated January 11 and 16, were forwarded, and still no mention of any drafts against them. It was only on the eighteenth of January that the draft was drawn, and a letter written advising it, and inclosing bills lading (which for aught that appears may have been duplicate bills). In the fourth, place, article 3247 of the R. C. C. provides that every consignee or commission, agent who has made advances on goods consigned to him, or placed in his hands to be sold for account of the consignor, has a privilege for the amount of these advances * * * on the value of the goods if they are at his disposal in his store, or in a public warehouse, or if before their arrival he can show by a bill of lading, or letter of advice, that they have been despatched to him.” Meyer, Weis & Co. had advanced $2000 on these promised shipments; that advance was wholly unpaid; they had received letters of advice of the shipment before they had any knowledge of the draft. We think, too, that it fairly results from Meyer’s testimony, and other circumstances, that they had received, also, duplicate bills of lading by railroad before those mentioned in Hiller & Co.’s letter of January 18. He says they received these bills of lading before the draft came to hand, and that the letters of advice of January 11 and 16 were the first received relating to twenty-six bales of cotton.

The privilege of Meyer, Weis & Co. as consignees and factors had, therefore, fully attached to this cotton, and Hiller & Co. could not thereafter defeat it by drawing drafts against the same. This view of the case renders unnecessary any discussion of the question as to how far a consignor who is indebted to consignee for advances on promised shipments of goods can while shipping for Ms oion account encumber the goods by notice of drafts drawn against them. It is easy to see that this question is a very different one from that where this previous relation of debtor and creditor does not exist. It may well be doubted whether any thing short of negotiation of the bills of lading with the draft, or a designation in the bill that the shipment is for account of the holder of the draft, would defeat the privilege of the consignee for advances. But we do not find it necessary to pass upon this point, and, therefore, express no opinion upon it.

Third. Under the view we have taken it is matter of no moment whether Hiller & Co. paid for the cotton with money obtained from plaintiff or not. That fact, if true, gives no claim either 'upon the cotton itself, its proceeds, or upon Meyer, Weis & Co. If the cotton were in Hiller & Co.’s hands, it would not even give plaintiff a privilege upon it.

Fourth. As to the plaintiff’s bank taking the draft upon the faith and credit of Meyer, Weis & Co., it is enough to say that that firm is not responsible for Hiller’s misrepresentations, and that there is outside of Hiller’s own testimony (which we do not credit) no evidence whatever of any act or declaration of Meyer, Weis & Co. to justify such faith and credit being given. The fact that they were in the habit of paying similar drafts for Hiller & Co. could not, in the absence of an express or implied agreement, compel them to continue to do so.

In conclusion, it is manifest that there is no question here as to the necessity of Meyer, Weis & Co. recording their privilege; first, because plaintiff is not claiming the cotton itself, or any privilege upon it or its proceeds. Second, because Meyer, Weis & Co. have the cotton or its proceeds in their own possession, and if there is any claim against them, it is simply for an ordinary money debt.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that there be judgment for defendant, rejecting plaintiff’s demands, with costs of both courts.


author: Egan, J. Marr, J.

text:
    No. 6579.
    Succession of P. G. Quin.
    A judgment rendered by a court of competent jurisdiction, and where the proper parties have been duly cited, can not be attacked in any collateral way, even by third persons not parties to it.
    A parish court is not competent to review, or reverse a judgment of the district court.
    The proceeds arising from the sale of property belonging to the wife, collected by the administrator of the deceased husband, belong exclusively to her, and do not enter into the husband’s succession.
    APPEAL from the Parish Court of St. Helena. Duncan, Judge ad hoc.

      F. M. Wright and W. F. Fernán for opponent and appellant.

      Jas. U. Muse for Mrs. Quin, appellee.
   The opinion of the court on the original hearing was delivered by Egan, J., and on the rehearing by Make, J.

Egan, J.

The opponents are both ordinary judgment creditors of the -succession. Their oppositions are on several grounds, most of which relate to the management of the property of the succession by the administrator, and moneys paid by him, which the court a qua considered no longer open to inquiry or opposition, because protected by a judgment homologating a former account of the administrator, unappealed and unreversed. The opinion of the judge a quo shows an unusually careful and intelligent consideration of the whole case, and we ¡are not prepared to differ from his conclusions in regard to the grounds of opposition referred to.

The principal ground of opposition by Mrs. Quin was that the •administrator had failed to place her upon the account and tableau as a judgment creditor to the amount of $2946 44, besides interest and costs, to be paid concurrently with other judgment creditors. Harrell, himself a judgment creditor, opposes the allowance of this claim, invites-the parish court in this proceeding to review the action of the district court which rendered the judgment, and seeks to contest in the parish court the right of Mrs. Quin to be allowed the amount claimed. It is-not disputed that the court which rendered the judgment had jurisdiction, nor that there was a regular contestatio Utis resulting in a judgment. It is, however, claimed that the debt was not due, and that the: judgment against the administrator does not bind other creditors who may oppose its allowance in the probate court. The judge a quo overruled this ground of opposition, and in so doing, in our opinion, did not err.

In the Succession of Neal, 25 A. 125, the court held that a judgment not absolutely void can not be attacked collaterally — that the parish court can not review or reverse a judgment of the district court, and that it is without jurisdiction ratione material when the matter in dispute exceeds five hundred dollars. If the judgment of Mrs. Quin washable to attack or reversal, it was in another forirn, where proceedings should have been instituted, and those in the probate court stayed to await their determination. No such allegation or attempt is shown in-this case. See Succession of Bernard, 24 A. 402. Mrs. Quin’s judgment should have been recognized, and placed as such upon the tableau and account, and the judge below correctly so ordered. Harrell alone-appealed.

Mrs. Quin asked in the court a qua that she be allowed by privilege and preference one hundred and sixty dollars, the price of a horse, her separate property, sold by her deceased husband. This sum was not-reduced into possession by the husband while living, but was collected from the purchaser by the administrator after the death of the husband. It formed properly, therefore, no part of the succession, but belonged to the wife individually. It should not go to swell the sum applicable to the payment of other creditors, but should pass, undiminished, directly-to Mrs. Quin, whose fund it was.

In her answer to the appeal she so asks, and that the judgment of the court below be so amended, and in other respects affirmed, and it is so ordered, and that the costs be paid by the succession, except the-costs of the opposition of S. S. Harrell, which are decreed to be paid by him.

On Rehearing.

Marr, J.

A re-examination of this case has only served to confirm us in the opinion heretofore pronounced. Our former decree, therefore,, remains undisturbed.


author: Manning, C. J.

text:
    No. 5623.
    Peet, Yale & Bowling vs. Nalle & Cammack.
    A suit against a party for an amount dueT^y a vacant succession, on the ground that the defendant had made himself liable by taking unauthorized possession of the effects of the succession with intent to convert them, to his own use, is not a suit against the succession, and hence, none but a court of ordinary jurisdiction can take cognizance of it.
    When there is any conflict between the provisions of the Revised Statutes of 1870, and those of the Civil Code, as revised that year, the latter shall prevail.
    .'It is not necessary that the person who has taken unauthorized possession of the effects of a vacant succession, or a part thereof, with intent to convert the same to his own use, should be criminally prosecuted, and convicted of the offense, before a creditor of the succession can institute suit to hold the offender liable for the debt due him by the succession.
    ^^PPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Thos. J. Semmes for plaintiffs and appellants.

      James and Joseph Brewer for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sue to compel the defendants to pay 'them an alleged debt of Edward Day of a little over one thousand dollars, the liability to pay which is charged to arise from the defendants . having taken possession of Day’s vacant succession, with the intent to ■convert it to their own use, and without being authorized to that effect.

A peremptory exception was filed for this; — that an action will not Hie to render a party liable for payment of the debts of a deceased person, until such party shall have been convicted of having taken possession of ■the vacant estate of the deceased, without authorization, and with the Intent to convert it to his own use. Another ground of exception, not ■made in the pleadings, but orally argued by the counsel on both sides, is that the Fifth Court has not jurisdiction because the claim is against .a succession.

The purpose of the suit is certainly not the enforcement against a ■succession of an alleged claim. Its object is to compel living persons to pay the debt of one deceased, because they have taken possession of and appropriated to themselves, without leave of the court, all that would otherwise have been answerable to plaintiffs’ claim. No court but one of ordinary jurisdiction could have cognisance of such a demand.

It will not do to say, that the plaintiff must establish his claim contradictorily with a succession, duly represented, before he can be said to have a valid one. If the defendant has, by his own act, unauthorizedly .•appropriated the vacant succession to himself, that act dispenses a ■creditor of the deceased from looking to the succession any longer for payment. His claim is now converted into a personal one against the party appropriating the estate unlawfully, or rather, he has the option of thus converting it.

On the point of the necessity of a criminal prosecution and conviction preceding the civil suit, we are referred to three express adj u dications and to the law in the latest revisal of the statutes. Our decision must depend upon the effect we shall give to a very remarkable change in the Civil Code made by the interpolation of a hew article in'1870.

Prior to 1820, the liability of a person, who should convert to his own use the effects of a deceased person, was confined to the succession, which could sue the intermeddler in an action for damages for the injury to it. An Act of that year added another remedy by providing that the party, thus taking possession of a vacant estate, without authority, should be prosecuted, and on conviction should be fined, and moreover should be liable to pay all the debts of the estate, besides the damages, suffered by parties. The language of this law is reproduced exactly m the Revised Statutes of 1856, p. 541, and in those of 1870, see. 3685. And’ under that law, it has been uniformly held, that the criminal prosecution and conviction must precede the suit to enforce the civil liability. McMasters v. Place, 8 Annual, 431. Walworth v. Ballard, 12 Annual, 245. Carl v. Poelman, Idem, 344.

If the law had remained the same, we should adhere to that construction, although there can be no good reason why a party should be precluded from enforcing a civil liability, incurred by another because of an act, not criminal in its nature or essence, until those, who have in charge the administration of the criminal law, shall choose to prosecute him.. ■The sections of the two revisáis cited are under the head of successions', and do not appear among the crimes and offences.

But the decisive feature is that the Civil Code, as revised, contains anew article, manifestly designed to alter the law upon this very point, and wisely altering it, as it had been construed by this court. It enacts; —in case any person shall take possession of a vacant succession, or a part thereof, without being duly authorized to that effect, with the intent of converting the same to his own use, he shall be liable to pay the debts of said estate, exclusive of the damages to be claimed by the parties who-may have suffered thereby, art. 1100.

Whenever there is any conflict between the provisions of the Revised’ Statutes of 1870, and those of the Civil Code, as revised in that year, the latter shall prevail. Rev. Stats, sec. 3990. The new article of the Code is an exact copy of the law of 1820, as reproduced in the revised statutes of 1870, except that the word ‘ succession ’ is substituted to ‘ estate,’ and the provision subjecting the intermeddler to a criminal prosecution is wholly omitted.

The counsel of the defendants insist that these two enactments ar& not in conflict. They are in error. If it had been argued, that the material change in the phraseology as it appears in the Code, does not necessarily repeal that part of the statutes which creates the criminal offence, there would have been good reason for that construction. The criminal offence may very well continue to exist. The statutes attach to its commission a two fold punishment, viz a fine, and a liability to pay debts and damages. The Code on the other hand retains the declaration of civil liability on the part of the'intermeddler, and relieves it from the hampering restriction of a criminal conviction as a pro-requisite to its enforcement, which in truth had practically operated as an immunity to the intermeddler.

Whether on trial, the plaintiffs shall be able to sustain their allegations, so as to fix liability upon the defendants, is for future investigation. The exception is to the prematurity of the action, and should not have been sustained. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the cause is remanded, with instructions to the judge below to overrule and dismiss the exception of the defendants, and proceed to the hearing of the case, .and that the defendants pay the costs of appeal.


text:
    No. 6670.
    The State vs. Paul Clifton.
    In an information charging burglar-y, and entering a house at night with intent to steal, it is not necessary to give the ownership of the house.
    Evidence that the accused was seen in the immediate vicinity of the scene of the offense at about the hour he is charged to have committed it, is admissible.
    The proper question to put, in order to elicit the reputation for honesty of an accused, is, what is the general reputation of the accused for honesty, etc.; not what is his reputation with those among whom he dwelt.
    When the jury in a criminal case return a defective verdict, the judge may properly so state to the jury, and thereupon instruct them as to the form in which they should clothe their verdict. But to ask them the Question whether it was their intention to And the accused guilty of the crime charged in the information, and to have recorded as their verdict the answer thus elicited, is so grave an interference with the functions of the jury, as will warrant the setting aside of the verdict.
    APPEAL, from the Superior District Court, parish of Orleans. Whitaker, J.
    JET. N. Ogden, Attorney General, for plaintiff.

      Robert Dalton for defendant.
   The opinion of the court was delivered by

Egan, J.

The defendant was accused, found guilty, and sentenced for the crime of breaking and entering a dwelling-house in the nighttime with intent to steal. From this sentence he has appealed. He objects that the information does not state the ownership of the dwelling-house. This was not necessary nor of the essence of the charge. The dwelling-house was sufficiently described as situated at and designated as No. 148 Canal street, and known as the New-Orleans Club-House and occupied by some person or persons to the district attorney unknown, “ the said person or persons being lawfully therein at the time.” This was sufficient description under the law, even if it be considered matter of substance and not of form or “description of something described in the information.” The accused excepted to the reception of the evidence of a witness, Knapp, to the effect that about the hour of the night when the crime is charged to have been committed “ he saw the accused in his own back premises.” The judge states that the back premises of the witness immediately adjoin those of the New-Orleans Club-House, and that other witnesses had testified to the escape of the burglar from the rear of the Club-House premises to the rear of those of the witness, who had testified to hearing shots fired near by at the time, and that said witness was at the time of the objection about to testify to the arrest of the accused after the shooting (and at the hour the burglary was committed as stated by other witnesses) upon witness’s premises or in the alley adjoining. The evidence was pertinent and properly received. On the trial the counsel for the accused asked a witness, Adeline Smith, with whom he boarded (and also another witness), “ what was the reputation of the accused for honesty among those he dwelt with in her house.” The proper question, if the foundation had been laid, which is not shown by the bill, would have been “ what was the general reputation of the accused for honesty among his neighbors,” and not what particular persons thought of him. The court did not err in excluding the testimony ; a much more serious question is presented by the next and last bill of exceptions, which states thatafter the jury had deliberated upon the case for about two hours and a half they returned into court with their verdict — that they were asked by the judge if they had agreed upon their verdict, to which the foreman answered that they had, and handed it to the clerk, who was ordered to record it; when the counsel for the accused asked that the jury be polled, and while that was being done and before its completion the judge directed the sheriff to stop, and stated “that the verdict was defective, and would have to be changed,” and then asked the jury through their foreman “if it was their intention to find the prisoner guilty of burglary with intent to steal, as charged. The jurjr, through their foreman, answering in the affirmative, the court ordered the verdict to be changed and to be so recorded,” and the judge then had the jury polled the second time; they, the jury, then answered that was their verdict, and the court ordered the verdict to be recorded as so amended, to all of which the counsel for the accused excepted. The verdict of the jury as originally returned into court is not before us, and we can not, therefore, pass upon its sufficiency or responsiveness. The judge pronounced it defective, and we must assume that he was correct. We can not, however, go-further and assume what was the character of the verdict. The verdict as it appears of record is “Guilty of burglary as charged, with intent to steal.” While if the verdict as originally returned was defective it was perfectly proper for the judge so to state to the jury, and to instruct them anew as -to the form in which they should clothe their verdict, it was not proper for him to ask the jury the direct question “if it was their intention to find the prisoner guilty of burglary with the intent to steal, as charged,” and to have recorded as their verdict the ansioer thus elicited. Whatever -the motive, and we have no doubt it was the' best, this was trenching upon the province of the jury and in effect dictating to them their verdict, which in a matter so delicate and important to the liberty of the accused the law does not permit. We think, as before stated, that the proper course under the circumstances in an important criminal trial was. for the judge to have informed the jury that their verdict as originally returned was defective or informal, and as to the proper form of verdict, just as though nothing had been returned into court by them as a verdict, and that after so instructing them they should have been directed and allowed to make up and return their own verdict, whatever it might be. A defective or informal verdict is no verdict, and the case stood in law just as it did when the jury originally retired to make up their verdict, and no other or different charge was permissible than would have been originally, save only that the judge should as before stated have renewed his instructions as to the form or language in which to clothe the verdict in case the jury should find the accused guilty or innocent. Such instructions are very different from a direct question from the court, “ Do you intend to find the prisoner guilty of burglary with intent to steal, as charged?” and especially it was not proper to have recorded as their verclicl the ansioer so elicited. However praiseworthy the inten'tion of the judge, the language and spirit of our law guards too sacredly against any interference by the judge with the facts in a criminal case or any interference with the finding of the jury to permit the matter under consideration to be passed over as a simple irregularity and to grow into a precedent which in some other case may be abused and lead to the most serious ill consequences. Courts of trial can not too strictly observe the line of demarcation between their province and that of the jury in criminal cases arising under our law. We think that as •was said in the State vs. Shields, 11 A. 395, the course pursued by the court a qua in this case was “ not only calculated to secure the unqualified verdict elicited by the question of the judge, but that it might well have been construed by the jury into an intimation of the court as to the guilt or innocence of the prisoner,” and that “ the discretion of the jury should not have been so trammeled.” See, also, the case of the State vs. John Johnson, recently decided. 30 An. 921. The grounds for the motion in arrest of judgment have already been considered, and are insufficient.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from, be and they are avoided and set aside, and the case remanded to be further proceeded with according to law and the principles of this opinion.


author: Mare, J.

text:
    No. 6872.
    The State ex rel. Martin Lannes et al. vs. the Attorney General of the State.
    'Section 2593 et sea. ol the Revised Statutes of 1870 does not provide for the forfeiture-of the charters of corporations at the instance of private persons, even when they are parties interested.
    It is discretionary with the Attorney General of the State to proceed, on his own motion, to bring suit for the forfeiture of the charter of a corporation, and-hence he can not be compelled by mandamus to institute such a suit.
    ÁPPEAL from the Sixth District Court, parish of Orleans. JRighior, J.
    X K. Washington for relator and appellee.

      H. N. Ogden, Attorney General, for defendant.
   The opinion of the court was delivered by

Mare, J.

Martin Lannes and other private citizens, butchers, desired to bring suit against the “ Crescent City Live Stock Landing and Slaughter House Company,” a corporation created by act No. 118 of 1869, for a forfeiture of charter, and for ten thousand dollars damages,, for failure to comply with the terms and conditions of the charter.

Recognizing the fact that a proceeding for forfeiture of charter must be in the name of the State, the plaintiffs applied to the Attorney General to make the State a party, and to sign the petition in the name and behalf of the State. The Attorney General declined to do this ; and plaintiffs applied for a mandamus to compel him to perform his alleged duty in this respect.

The Attorney General answered that the act No. 156, of 1868, relied on by relators, was not applicable to their case ; and that the appearance of the Attorney General in the cases contemplated by that act is merely formal.

The District Court was of opinion that the case made’ by plaintiffs was one coming within the act in question: and the Attorney General is appellant from the judgment making the mandamus peremptory.

Act No. 156, of 1868, is entitled “An act to amend and re-enact art act entitled ‘ An act providing a remedy against usurpations, intrusions into, or the unlawful holding or exercising a public office or franchise in this State,’ approved September 8,1868.”

The act thus amended and re-enacted is No. 58, of 1868 ; but it is not necessary to refer to it more specially, because the amendatory act superseded it; and was incorporated and re-enacted in the Revised Statutes of 1870. Sec. 2593 et seq. This is the law by which the issues involved in this appeal must be determined.

The first section of this act authorizes suit to be brought by the district attorney, or district attorney pro tempore, in the country parishes, and by the Attorney General in the city of New Orleans, “ or other person interested,” in the name of the State, upon his own information, “or upon the information of any private party,” against the party or parties offending in the following cases :

“ First. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or franchise within this State ; or

“ Second. When any public officer shall have done, or suffered to be done, an act which by the provisions of law shall work a forfeiture of his office ; or

“Third. When any association or number of persons shall act within this State as a corporation without being duly incorporated.”

The second section makes it the duty of the district attorneys, and the Attorney General in the cases mentioned in the first section, to bring suit against the offending parties, “ when so required to do.”

The fourth section provides that when such suit is brought, “on the' relation or information of any person interested,” the name of such person shall be joined with the State as plaintiff.

Section ten declares that “ when defendant, whether a person or a corporation, against whom such action shall have been brought, shall he adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise, or privilege, and also that the plaintiff recover costs against such defendant, and such damages as are proven to have been sustained.”

These sections are the only parts of the act in question which have-any bearing upon this controversy; and we shall consider them seriatim.

1. Every act of the Legislature must conform to the constitution of the State, under pain of nullity.

The constitution, article 114, declares that “ every law’ shall express its object or objects in its .title and if it had been the design of the Legislature, by this act, to provide for the forfeiture of the charters of corporations, at the instance of private persons, “parties interested,” ■the law would be amenable to the grave objection that no such object or purpose is expressed in the title.

The introductory part of the first section of the act provides how •such suits as it authorizes may be brought, and against whom ; and it differs from the original act No. 58, in that this latter act authorizes the Attorney General alone to bring such suit, in the proper district court, “in the name of the people of this State, upon his own information, or upon the complaint of any private party.”

This language betrays the paternity of the act; and the act No. 156 was passed to adapt the imported law to our mode of procedure, and to ■the courts in which the litigation might be had. The suit must be in the name of the State, by the Attorney General in the parish of Orleans, by ■the district attorney or district attorney pro tempore in other parishes, upon his own information or upon the information of any private party.

The first alinea seems, by its terms, to relate, exclusively, to acts which may be done by a single individual. It contemplates the violation of a right which by law has been conferred upon and belongs to some other person, a public office or franchise, which the person offending has usurped or intruded into, or holds or exercises unlawfully, not because the office or franchise may not be lawfully held or exercised, but because the offending party is not the person who is by law entitled to hold or exercise it.

The second alinea relates, exclusively, to public officers, legally elected or appointed, and installed, who, while lawfully entitled to hold the office, have done, or suffered to be done, some act which by law works a forfeiture, not the destruction of the office, but of the right of the offending officer to hold and exercise the functions of that office.

The third alinea does not deal with single individuals, as the first and second manifestly do. It relates exclusively to aggregations of individuals, associations, or a number of persons, who have assumed to act :as a corporation without having been duly incorporated.

The first alinea deals with an individual, any person, who violates the rights of some other person by unlawfully holding or exercising an office or franchise which such other person is by law entitled to hold or exercise; and the second alinea deals with the individual public officer, holding by a legal tenure, who has incurred the penalty of forfeiture by some act done by himself, or which he has suffered to be done. The third alinea alone has any reference whatever to corporations; and it is limited to such associations as assume to be corporations, without having been duly incorporated. Corporations established by law are not. even remotely, or by implication, included in this first section.

All the succeeding sections of this act refer to and are limited to the suits which the first section authorizes to be brought. The meaning of sections two and four seems plain enough. When the district attorney, or district attorney pro tempore in the country parishes, or the-Attorney General in the parish of Orleans, knows, or when he has been informed by any private party, of the existence of any one of the causes-of action mentioned in the first section, the usurpation, or intrusion into, or the unlawful holding or exercising of a public office or franchise, or that some public officer has done or suffered to be done some act that-works a forfeiture of his right, or that an association of individuals, or a number of persons pretend to be a corporation, without having" been duly incorporated, the law requires him to proceed, and to bring suit against the offending parties. If the offense is such that it interests an individual, and the suit is brought on his relation or information, it must still be brought in the name of the State, but his name must be joined with the State as plaintiff.

By section ten, when a person or a corporation is defendant in such suit, that is, such suit as may be brought under section one, the judgment shall be exclusion from such office, franchise, or privilege, costs, and such damages as are proven to ha-ve been sustained. Not one word about the forfeiture of the charter granted to a corporation. The word corporation in this section would seem to be used in reference to the associations of individuals, pretending to be corporations, without having been duly incorporated, mentioned in the third alinea of section one.

If a person intrudes into, or usurps, or holds, or exercises a public office or franchise which some other person is entitled to hold or exercise, the State is offended, and is interested in ousting the wrongdoer; and the person unlawfully excluded is also interested in obtaining possession and enjoyment of the office or franchise. He may require suit to be brought; and the Attorney General or district attorney is bound to bring the suit, on the information or relation of the injured individual, who must be joined as plaintiff in the suit brought in the name of the State.

If the suit be to remove a public officer, who has done or suffered to be done an act which works a forfeiture, every citizen is interested; and the proceeding may well be on the relation of any citizen or number of citizens, joined with the State as plaintiffs. And so, if any number of persons associate themselves, and pretend to be a corporation, without having been duly incorporated, a citizen, or a number of citizens, might well be joined with the State as plaintiffs; and in all such cases the law officer of the State seems to have no discretion, and he may be compelled by mandamus to perform the duty plainly prescribed by law.

The cases relied upon by the relators in this case, 21 An. 655; 21 An. 710; 22 An. 547; 23 An. 787; 24 An. 149, were contests for office; and the court held, and it is not to be questioned, that in such eases the suit must be in the name of the State; and that the law officer of the State may be compelled by mandamus to allow the use of the name of the State in the suit to oust the intruder or usurper, and to put into office the person complaining and claiming to be legally entitled.

The case in 22 An., State ex rel. Attorney General vs. Fagan and Others, was a proceeding under the third alinea of the first section of this act, against a number of persons associated under the name of the Live Stock Dealers’ and Butchers’ Association of New Orleans, styled a pretended corporation, organized for the purpose of doing and performing the acts which, by the act 118 of 1869, the Crescent City Live Stock Landing and Slaughterhouse Company was alone by law authorized to do. In such a case there-is no doubt it would be the duty of the Attorney General, in behalf of the State, to protect the corporation lawfully chartered, and solely vested with the rights granted to it by the State, by the act of incorporation, against the attempt of another body or organization to exercise the same rights.

In the Atchafalaya Bank vs. Dousin, 13 Louisiana, 497, the doctrine is plainly laid down, that the governmentt! creating a corporation can alone institute a proceeding for a forfeiture of charter, since it may waive a broken condition of a contract made with it, as well as an individual.”

Charters of incorporation are treated as contracts; and if one of •the terms of the charter be violated, the other contracting party, the State, may demand the forfeiture by suit, just as in a contract between two individuals. But article 2047 of R. C. C. declares that when the resolutory condition is an event not depending on the will of either party, the contract is dissolved of right; but where the condition is something to be done or performed by one of the parties, the dissolution must be sued for.

In the case of the Atchafalaya Bank, 13 Louisiana, Judge Martin stated that in 1813, when he was Attorney General, the banks suspended specie payments, and thereby incurred the penalty of forfeiture;, that it devolved upon him to determine whether to waive or to proceed by suit for the forfeiture; that he chose not to sue; and the Legislature soon after placed him on the bench of the Supreme Court; and that his successor, Mazureau, who was Attorney General when the banks suspended the second time, had, in the exercise of his discretion, chosen motto sue.

The authorities cited in 13 La. 497, and in Abbott on Corporations, 339, show that it is discretionary with the sovereign power by which an act of incorporation has been granted to waive the forfeiture which has been incurred; and the waiver may be as well by inaction, the failure to1 demand it by suit, as by positive act.

In 1877 the Legislature amended the charter of this corporation; and this was necessarily a legislative recognition of the then legal existence of the corporation, and of the intention of the State not to demand the forfeiture. See act No. 144 of 1877, p. 220.

The Attorney General might, if he deemed it proper in the public interest, demand by suit, the forfeiture of the charter of a corporation; but he might be restrained by the action of the Legislature, as he might be instructed by the Legislature to proceed. In the silence of the Legislature the discretion is vested in him; and discretionary power can not be controlled by mandamus. It is only where the duty is imposed by law absolutely that its performance can be enforced by mandamus; and no individual or individuals can interfere with the State in the exercise of its sovereign power, nor compel the State to proceed for the forfeiture of a charter, which the State, in the exercise of its sovereignty, may not choose to demand.

The judgment appealed from is therefore annulled, avoided, and reversed; and the application of relators for mandamus is dismissed at their costs in both courts..


author: Manninu, C. J.

text:
    No. 6738.
    W. P. O’Hern vs. Hibernia Insurance Company.
    The deed from a tax collector, of property sold at a tax sale, is roeeived prima facie, as a valid title. Until the tax sale is set aside by a revocatory, or other proper action, contradictorily with the parties in interest, the title from the tax collector is presumed to be valid.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Horace E. Upton for plaintiff and appellant.

      Thos. Gilmore & Sons for-defendant and appellee.
   The opinion of the court was delivered by

Manninu, C. J.

The Hibernia Insurance Company obtained an order of seizure and sale of an improved lot in this city, in foreclosure of its mortgage, and had caused advertisement of its sale to be made, when the plaintiff in joined the sale by the proceedings in this suit.

The defendant moved to dissolve the injunction “upon the ground that it had issued improvidently and illegally, the allegations of the petition and the exhibits thereunto annexed being insufficient to authorize the issuance of the writ.”

It is nowhere stated wherein is the insufficiency, or in what particular the allegations are deficient. Upon hearing, ihe motion or rule to dissolve was made absolute, and again the record fails to acquaint us with the reasons therefor. We do not wish to be understood as intimating that it is necessary or desirable in all cases that the judge of a lower court should assign the reasons of his judgment at length. We only note the absence of them here, because we are unable to perceive why the allegations of the petition were supposed not to be sufficient on their face to authorize an injunction.

These allegations are; — that the plaintiff is the owner of the lot advertised for sale, under a title translative of property, (derived from a tax sale superior to the defendant’s mortgage), and that the defendant is attempting to sell it. This sale is to satisfy a mortgage of a previous owner.

True, the plaintiff’s title may not prove good upon examination. He alleges that he bought at a tax sale, and received a deed from the tax collector, and after six months interval, that he obtained a confirmatory deed from George B. Johnson, Auditor of Public Accounts, on February 24,1877. We know that this last deed, confirming the previous title, is wholly invalid, because Johnson was not the Auditor at that time, but the deed from the tax collector is received by the courts as a prima facie valid title, Constitution, art. 118. Acts 1871, p. 120. Until that sale is set aside by a revocatory or other proper action, contradictorily with the parties in interest, the title from the State’s officer is presumed to be valid until the contrary is shown. Lannes v. Work. Bank, 29 Annual, 112.

But it is not necessary to resort to those principles in order to dispose of this motion. The objection to the petition is that the allegations are on their face insufficient to warrant an injunction. Now if it be true that the plaintiff bought at the tax sale and therefore under the first and highest privilege, and that all the requisite formalities had been observed prior to it, and at it, and no redemption has been made or offered, it may very well be that his title will prevail to the detriment of the mortgage creditor of the previous owner. But if it should be discovered that these formalities have not been complied with, or that the plaintiff and purchaser at the tax sale is merely the mortgage debtor in disguise, who is helping him to evade the operation of the mortgage, and the payment of the debt, the reverse result would most certainly be produced.

These matters were not inquired into, and could not be, in the trial of a rule to dissolve on the face of the papers. The allegations of the petition are taken as true on that trial, and if true, do warrant an injunction. Therefore,

It is ordered and decreed that the judgment of the lower court is reversed, and the cause is remanded to be proceeded with according to law, the appellee paying costs of appeal.


text:
    No. 7048.
    Thomas LaChambre & Co. vs. Henrietta and J. L. Cole.
    A suit to revive the judgment in a probate ease, rendered by a district court before the creation of parish courts by the constitution of 1888, must be brought iu the district court that rendered the judgment. Probate suits in which judgments had been rendered, were not transferred from the district to the parish courts.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Me Vea, J.

      Hewes & Parlange for plaintiffs and appellees.

      Barrow & Pope for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The object of this suit is the revival of a judgment under the act of 1858.

One Cropper obtained a judgment against the defendants in the fifth judicial district court for Iberville on May 10,1867. The plaintiffs, claiming to be the owners of this judgment, which is not disputed by Cropper, instituted this suit in the fifth judicial district court for Iberville for the revival of the former judgment, and had citation issued thereon, which was served April 18, 1877. The service was therefore within ten years from the rendition of the judgment.

It is contended by the defendants that citation has issued from the wrong court, and an exception was filed by them to the jurisdiction of the district court, which can not be understood without an explanation of the original suit.

Cropper is the son of the defendant Mrs. Cole by her first husband. She was his tutrix, her second and present husband was contutor, and the suit was for an account, and for judgment for such sum as should be found to be due, and it was had for over fourteen thousand dollars. This was under the Constitution of 1852, whereby district courts had jurisdiction of all matters affecting successions, and minors.

The constitution of 1868 followed, creating parish courts with jurisdiction of those subjects, and the defendants contend that the suit for' revival should have been instituted in the parish court of Iberville, because that court alone had now jurisdiction of such matters as are embraced in the original suit, and further because by the act organizing the parish courts, the clerks of the district courts are required to transfer to the parish courts “ail causes now pending and on file” which fall under the jurisdiction of the latter. Acts 1868, p. 60.

It would be a strained construction to hold that the clerks, under this mandate, must transfer to the parish courts all causes, complete .and ended, as well as those pending. A great mass of records is in the ■ clerk’s office of causes which are ended. If that officer be required to ■transfer to the parish courts all of these that should have been brought in a parish court, had one existed from 1852 to 1868, who is to say what records he shall thus transfer? Experience has taught us that it was not an easy matter for courts to determine correctly where was the ■ dividing line between the two jurisdictions, and-the clerks would surely have been unable to do it. The phraseology of the act docs not leave •this question doubtful. All causes now-pending and on file which fall under the jurisdiction of the parish courts must be transferred to them, . and the parish court shall try and determine the same, and make all ■ orders therein that may be legal and proper. It is not all causes which would have fallen under the jurisdiction of the parish court, but those ■which fall under that jurisdiction according to the constitution and that .Act, which must be transferred. And for what purpose ? That the par-fish court may try and determine the same, and make orders therein. And to make the meaning of the act certain, it is added — the clerk of the district court, shall issue all executions and writs, or orders of any kind, in all cases previously decided in those courts for any purpose whatever. Idem, p. 62.

The suit, or contestation, which was terminated by the judgment of May 1867, properly remained among the records of the district courts, because it was not pending. But it may be that some would consider the expression ‘ pending and on file,’ to mean two classes of causes, viz those pending which are undecided, and those on file which means every cause among the records which falls within the description of the Act. There is no comma after ‘pending.’ The two expressions refer to the same class of causes, as the other expressions in the same clause plainly indicate. How is the district court to issue executions or orders upon judgments already rendered, if the suits or records containing the judgments are transferred to another court?

It would not matter however if the clerk of the Iberville court had transferred this record to the parish court. The court which has jurisdiction of suits for revival of judgments is distinctly pointed out in the act of 1853 which provided for their revival. The citation must Issue from, and the suit must necessarily be addressed to the ‘court which Tendered the judgment.’ Rev. Stats, sec. 2813.

The district court for Iberville rendered the judgment, and in that •court was properly instituted the proceeding for its revival.

It is not necessary to examine the bills of exception, which have no reference to the points on which we have rested our decision. There was testimony shewing the inscription and reinscription of the judgment of 1867, offered doubtless to shew the continued vitality of the judicial mortgage, but it is wholly out of place in such suit as this, the -sole object of which is to keep alive the original judgment by a revival. The suit of revivor having been instituted before the proper court, and the citation having been served within ten years from the date of the original judgment, it was held below that the plaintiff was entitled to Its revival.

Judgment affirmed.

On Rehearing.

Upon reconsideration of our former opinion, we see no reason to make any change, and therefore

It is ordered that our former decree remain undisturbed.


author: DeBlanc, J.

text:
    No. 2925.
    David G. Cooke vs. Hugh and Andrew Allison.
    Where a loan is made by two members of a commercial firm, in a matter foreign to the business of the firm, and in disregard of the express opposition of the third member, the two members making the loan are justly chargeable with its amount.
    ^PPEAL from the Fifth District Court, parish of Orleans. Leciumont,

      Thomas G-ilmore & Sons for plaintiff and appellant.

      E. W. Huntington for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

On the 25th of July 1865, plaintiff and defendants formed a commercial partnership for the transaction of a cotton factor-•age and general commission business, which expired on the 1st of June 1868.

On the 15th of February 1866, Hugh Allison alone was at the office of the partnership, his brother Andrew was absent from the City and 'Cooke at home and sick.

One James R. Howard, wishing to obtain an advance of money went-—on that day — to Cooke’s house, and Cooke — by a written note — - referred him to Hugh Allison.

What became of that note? One of the bookkeepers said that,, some time after the transaction, he himself handed it to Hugh Allison, and at the latter’s request. A subpoena duces tecum was issued commanding its production by Hugh Allison, who answered: “I have not the note referred to, do not know any thing about it.”

David Oook testified that — to the best of his recollection — the purport of the note was that Howard wanted some monej’’ and to see what lie could do for him: no amount was therein mentioned, nor was it an order to pay the money. This statement is corroborated by the bookkeeper, who read the note and testified further that he thought that, by the terms of said note, the matter was left at Allison’s discretion.

Whether it was or not, Hugh Allison requested the bookkeeper to fill a check for $12,500, signed and handed it to Howard, who acknowledged, in writing, that he had received that sum from the firm. The-amount of the check was paid and debited to Howard.

Andrew Allison returned to the City, heard of the transaction, protested against it as having no connection with their legitimate business and insisted that it should be charged to Cooke’s account. According to Andrew’s declaration, Cooke — when informed of his determination— objected to it at first, and thereafter consented, remarking “that it was a good thing and that his partners would have none of the profits to arise therefrom.” Cooke admits that he then made a remark of that kind, and told his partners that — if they were dissatisfied with the transaction, he would take it for his own account: that they did not assent to his proposition, and Hugh Allison replied that if there was any thing to be made by it, he was entitled to his share.

The bookkeeper was directed by the brothers Allison to transfer to-Cooke’s account the amount of the check, and it was done. Cooke-swore that he had not authorized that transfer, and his declaration as to this fact is supported by those of the bookkeepers, who testified that he always objected to it, and — for that reason — would not allow the books, of the firm to be balanced.

Hugh Allison’s statement is that he paid the $12,500 on an order from Cooke, believing that — on Cooke’s return to the office, he would explain why this money was given to Howard : he failed to explain and —at his own request — the amount was charged against him. To the-knowledge of Hugh, Cooke never objected to that charge. His declaration, on this point, is contradicted by, and contradicts that of plaintiff and of the bookkeepers. The note, or — as he calls it — the order which he took from the files of the office, might have sustained his assertion •and neutralized that of his partner and employees, but — when ordered •to produce it — his answer was “ that he knew nothing about it.”

When the advance of $12,500 was made to Howard, he was indebted to the firm for $1256, and had then shipped to it only six bales of cotton. Tt seems strange that — under such circumstances — Hugh Allison, who was not bound to do it, concluded to first pay him so large an amount, ¡and then await his partner’s return to ascertain why it was that the money had been given to Howard.

On the trial, Cooke objected to that part of Hugh and Andrew’s deposition and to the questions put to and answered by himself, tending to show that he had agreed to the transfer — from the firm’s account to his own — of the chai’ge of $12,500, on the ground that it was an attempt to prove — by parol evidence — that he had assumed to pay the debt of Howard. His exception was properly overruled. The object of the evidence thus admitted was to prove, and did establish that it was two of the partners and not the partnership who made a loan to Howard, and that the transfer of the charge from one account to the other was but the correction of a previous and erroneous entry. That correction was incomplete: the amount of the check should have been charged to Cooke, who — it appears — advised the making of the loan and approved it after it was made, and to Hugh Allison who, on a mere suggestion of Cooke, paid the money to Howard.

Andrew Allison’s statement is that said money was invested in Mexican Gulf Rail Road stock: that the intention to so invest was mentioned before he left the City, and that he opposed the transaction as having no connection with their legitimate business: that, when he returned to the City, and found that the loan had been made, he informed Cooke of his determination that said loan should be charged to his account: Cooke agreed to it and it was done.

Plaintiff denied that the money was advanced to Howard to invest in the stock of the Mexican Gulf Rail Road, and testified that the transaction was simply a loan on interest and commission. He, however, confessed that he had told the two brothers : “it is a good thing and if you are dissatisfied, I will take it myself,” and Hugh Allison alone replied, in substance, that if any profit came from it, he was entitled to his share.

It is difficult not to conclude that said loan was the transaction •opposed by Andrew Allison and disapproved by the advisers of the firm, before Andrew’s departure from the City, one which took place •during his absence, and against which he protested from the day on which it -was proposed, as not being connected with the legitimate business of the partnership. The lower court so believed, and its judgment is affirmed with ecsts.