text:
    No. 7855.
    Mrs. F. G. Henry vs. J. R. A. Gauthreaux et al.
    It is nob necessary that tlie Petition of a married -woman, seeking the judicial authority to mortgage her property, or the Certificate of the judge issued thereon, should contain a description of the property to be mortgaged.
    A married woman who, in the absence of her husband, has sought and obtained the sanction of the judge, under articles 127 and 123 of the Code, to borrow money and mortgage he r property, does not need the farther authorization of her husband.
    'iThe law protects the weakness of women, not their* dishonesty. When a married woman has used fraudulent means to obtain a loan of money, she is estopped from pleadingjher incapacity, and she forfeits the benefit of the legal presumption that her contract enured to the advantage of her husband.
    .A.PPEAL from the Eifth District Court, parish of Orleans. Rogers, J.

      Tobias Gibson for Plaintiff and Appellant.
    E. J. Wenck, Sambola & Ducros, and Breaux & Hall for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff has enjoined executory proceedings issued against her real estate for the payment of her mortgage note for $2500. She prefers grave charges, both against the seizing creditors, and the notary before whom the act 'of mortgage was passed, and demands the annulment of her obligation, and of the security given.

She sets forth seven grounds of complaint, which it would be cumbersome and unprofitable to enumerate. It is enough to say, that they are levelled against the forms of the judicial authorizations given her, in the absence of her husband, to borrow money and mortgage her estate to secure its return; that they assail the form of the note and of the mortgage act sued upon ; that they charge want of consideration and fraudulent practices, on the part of both the notary and the seizing creditor, in procuring the note and the mortgage.

In the absence of a specific averment, connecting the seizing-creditor with the ill-practices alleged, the injunction would have had to be dissolved, and the suit dismissed on the face of the papers ; 26 A. 418 ; 28 A. 232, 418, 494 ; 31 A. 834; but in presence of the charge which implicates the creditor, we are constrained to inquire into and determine the merits of the case. The evidence proves conclusively the following facts:

In 1872, Frances G. Rowan, the* plaintiff in injunction, was the divorced wife of Robert Baxton and transacted business before the notary named in these proceedings. On the 9th of December, 1876, she became the wife of Arthur G. Henry. On the 30th of December, 1876, and on the 2d of January, 1877, previous arrangements having been made through a broker for a loan of money to her, to be secured by mortgage on property of hers, the title of which was known to the notary, she appeared before him accompanied by a man, A. 0. Henry, whom she introduced as a friend who had come to see that everything was “ all right.” On being formally, and more than once, asked, as a matter of caution, by the notary, who had recognized her, whether her ' status had changed, in other words, whether she had married, since he last saw her, she answered understandingly in the negative. In the acts drawn up to consummate the transaction, she represents herself as Frances G. Rowan, unmarried. In the first one she acknowledges an indebtedness of $1500; in the second one an indebtedness of $500 ; for which she subscribes two notes, securing them by mortgage on the property. The net proceeds of the first and second notes were applied in part to the payment of a vendor’s note of hers secured on the same property, and for what remained, were paid to her in the cheeks of the notary, which, upon hex endorsement of the sapae were cashed by the bank on which drawn. The two acts were signed by A. 0. Henry as an attesting- witness. On being afterwards detected and rebuked, she promised to pay her debts. On the 21st July, following, the plaintiff in injunction presented a petition, sworn to by her, to a district judge in this city, averring the absence of her husband from the State, a desire to borrow $2500 to pay a mortgage clebt encumbering her estate, and to make repairs to the buildings upon it, and to secure the loan by mortgage on her property, and concluding with a prayer for authority to do so. The judge, on the same day, made a special order on her petition, authorizing her to act as prayed for. He issued to her, besides, a certificate in the printed form usually adopted for such purposes, showing that he had examined her touching the objects for which she intended making -the loan, and that she proposed doing so for her exclusive advantage. He, therefore, authorized her to borrow the amount and to secure the same by mortgage on her property under the provisions of the act of 1855, now incorporated in the R. C. C. as articles 126,127,128.

With this petiton, order and certificate in hand, she appeared, on the same day, before the same notary, acknowledged' an indebtedness of $2500, for which she issued her note, securing it by mortgage on her real estate. The act says and the evidence proves, that the two notes previously issued by her, one for $1500 and another for $500, were produced by the original mortgagee, and canceled, as paid. The difference between the total amount of those two notes, and the face of that last one issued, less discount and charges, was paid to her, and was by her used to redeem some jewelry of hers which had been pawned out of the State.

The note of $2500 became the property of Mrs. Mioton, the seizing creditor. At its maturity, upon payment of interest, the drawer was allowed further time. The note was subsequently again renewed by consent; owing to non-payment, it was finally put in suit and steps were taken for a foreclosure of the mortgage.

The three first grounds of complaint of the plaintiff in injunction repeat themselves. They attack the forms of the petition, order, certificate, note and mortgage sued on, and are easily met.

It has never been deemed, and it is not, necessary that the petition of a married woman, seeking authority to borrow money and to mortgage her property to secure its return, or that the certificate of examination of the District Judge, to whom she applies, should contain a description of the property to be encumbered. The object of the law, in providing for her examination by the Judge, at chambers, separate from her husband, was not to enable him to ascertain the description of such property, but the character of the contemplated loan, the purposes to which, if effected, it would be applied, and to determine whether or not it would enure to her exclusive benefit. A married woman may obtain such certificate and may merely contract the debt, without giving any mortgage. When such security is required by the lender, and is to be furnished, the law says that the certificate shall be authority for the mortgage.

It is true, that the printed certificate issued in this case to plaintiff, contains the authority to borrow and mortgage “ with the authorization of her husband.” Those words should have been erased. They were left in by an over-sight, and must be considered as unwritten. ' How can it be claimed that such authorization was made a condition sine-‘qua non, when it appears that a minute before, the plaintiff alleging-the absence of her husband from the State, was asking to be, and was, actually authorized by the judge, to borrow and mortgage. The petition, order and certificate were issued simultaneously.

They cannot be treated as destructive, the one of the other, and must be dealt with as a consistent proceeding intended for a practical object.

In order to justify the judge in giving the special authority asked in the petition, it was unneccessary to. cite the husband, who had not-been represented by the wife, as refusing his authority, and who had been alleged by her as being beyond the jurisdiction and.reach of the-court. R. C. C.124, 125.

The complaint that the note and mortgage sued on were made without the authorization of'the husband is therefore groundless. The authority of the judge, on the petition and in the certificate, stands in place of the husband’s and is certainly more efficacious.

The four remaining grounds of complaint cannot afford the plaintiff in injunction any relief.

She charges: want of consideration for the note sued on, and recourse to fraudulent practices by the notary and by the suing creditor in the.procurement of that note and of the mortgage securing it.

In order to establish such want of consideration, the burden being on her to do so, as she had been authorized by the judge, after examination, to borrow and mortgage, she contends that the two notes first issued, and which are represented by the note sued on, are nullities, because they were not made with the authorization of her husband; because they were issued under threats of violence on bis part; because the proceeds of the same were never received by her, but by her husband, and never enured to her benefit.

It is indisputable that the two notes referred to were issued by the plaintiff in the capacity of a single woman, she representing herself expressly in the act of mortgage as an unmarried person ; that the net proceeds were applied, in part, to the payment of a vendor’s note of hers, secured on the property mortgaged and, for the balance, were paid to her, as already said. It is, therefore, palpable, that the plaintiff, while a married person, twice falsely represented herself as feme sole and, upon such fraudulent practice, obtained from a third party the loan of sums of money, which were paid to her.

It is true that the notes were issued by her without the formal authorization of her husband, but it is false that they were made without his knowledge, for it is well proved that he signed the two acts of mortgage given to secure them.

The question which arises, under the circumstances of this case, therefore, is: Whether a married woman, who represents herself as feme sole, and who, on offering inducements, procures money from an innocent party, can be permitted, so as to prejudice such party, to repudiate her conduct, charge the nullity of her acts, and obtain from courts of justice a release from all the obligations so contracted.

We think that in such cases the doors of the temple of Justice are closed to her, and that she must be left an outsider, in the circumstances in which her villany has placed her.

Before going further, we desire to disentangle the case from apparent embarrassments, which present themselves at the very threshold of the legal investigation upon which we are about to enter.

While we notice that the acts of mortgage were signed by the husband as a witness, and consider that, in ordinary circumstances, this would be deemed a sufficient, though informal authorization to the wife, we ■will, as their relations were then unknown to the mortgagee, let them remain in the shameful condition in which they have conspired to place themselves, and will deal with this case as being that of a married woman fraudulently representing herself as a single person and obtaining money under such false pretense.

We will leave out of view the inconsistent charge of threats of violence, marital pressure and coercion, made by the plaintiff, the more so, as the only evidence offered to substantiate this ground of complaint is that of the plaintiff herself, unsupported, in any respect, by any corroborating testimony. It is so weak, so open to suspicion, so unpalatable, that it is not entitled to the least weight, particularly as nothing shows that the mortgage creditor had any knowledge of the facts of marriage and threats charged. Indeed, how could that creditor have been aware of such condition of things, when he knew neither the wife nor the husband, and thought that he was transacting business with a person who was unmarried,'and whom he had never before seen. 22 A. 32 ; 25 A. 595 ; 26 A. 418 ; 28 A. 418 ; 31 A. 832 ; O. B. 45 f. 407 ; R. C. C. 1589, 1847, 1850, 1853.

Proceeding now to consider the question stated and the answer 'which we have made to it, we propose, owing to the importance of the matter, to state more extensively than we would have done otherwise, our full views in relation to it, that it may be hereafter considered as having been fully investigated and thereupon Set at rest.

Unless the plaintiff be so estopped, the creditor would have to show that the proceeds of the notes enured to her benefit.

It has for a long while been, and it still is, the law and the jurisprudence of Louisiana, that persons who deal with married women, in a pecuniary point of view, do so at their risk and peril, and cannot enforce a money claim against them without proving that it has enured to their benefit, and this, whether the wife was authorized by the husband or by the court, in his absence or on his refusal. When so saying, we leave out of view the case of a judicial authorization granted, under the act of 1855, and embodied in the R. C. C., arts. 126,127,128, and ignore presently that legislation.

The law and the jurisprudence in this State have uniformly accorded to married women an exceptional protection never extended to minors. Proof of the mere payment to a married woman of a sum of money lent her has not been deemed sufficient to establish that it has enured to her advantage. Something more has always been required of the creditor. He has always been held to show that the money borrowed had actually been applied to her benefit, and, unless satisfactory proof was made of that fact, he invariably failed in his attempt after recovery. Minors have never been as effectually shielded. Where judicial authority has been granted to a tutor, with the advice of a family meeting, concurred in by the under-tutor, to borrow money in the name of the minor, and to secure the debt by mortgage, and the money was loaned, and the security was given, the lender,-suing in case of non-payment, has never been constrained to prove that the loan had enured to the benefit of the minor. But it has never been, and it is not the law and jurisprudence of Louisiana, that the incapacity of the wife to contract is universal and absolute; that the limitations placed upon her ability, in order to maintain the marital power, or to protect her against its abuse, are to be extended to all the cases of covenant which persons of .ordinary competency can form.

Women are not incapacitated on account of their sex. The capacity of single women of age is co-extensive with that of men. In the event of marriage, their incapacity is limited to certain instances. The restrictions thus placed upon their powers necessarily must be strictly construed, and will not be extended to cases within which marriage does not bring them. Hellwig vs. West, 2 A. 2 ; Zunts vs. Moussier, 10 A. 433.

While the law and the jurisprudence have, at all times, favored married women in the assertion and vindication of their rights, they have never intended, and do not contemplate, to protect them in the perpetration of fraudulent practices for the accomplishment of villainous objects, by which to enrich themselves gratuitously at the expense of their unguarded and trusting neighbor, on whom equity keeps a watchful eye. B. C. C., 1965. Protection, in the consummation of such offenses, would be a heinous crime, denounced by the well-recognized, fundamental principles of religion and morality, by which men, living in society, have always been guided and ruled.

Under the remarkable system of civil law which exists in this State, and in which both law and equity are admirably blended, married women, who have become guilty of fraudulent representations to obtain money, should be held as insuperably estopped from repudiating their conduct, sanctifying their wrongful deeds and from exonerating themselves from responsibility towards bona fide creditors.

Courts of justice actuated by a sense of their duties and responsibilities, cannot sanction such scandalous and outrageous spoliations, without endorsing their immorality and iniquity and forfeiting the sacred trust and confidence reposed in them.

The protection with which married women are surrounded in this State, derives from the Greek, the Boman, the Spanish and the French laws. Although extended to them in all proper cases, it must be unhesitatingly refused when justice imperiously requires that it should be declined.

As laid down in the Greek and the Boman law, the rule is,-that when a fraud has been committed by a married woman she will be denied the benefit of the senatus consultum, which was intended to protect only such women when they have been deceived, and not at all to shield those who have willfully practiced artful deceptions on others.

Sed ita demum eis subvenil, says Ulpian, si non collide sint versatce. Hoc enim Divus Pius et Severus rescripserunt. Nam deceptis, non de-cipientibus, opitulatur. M est et grcecum severi (tale) rescriptmn. * * * * * ':i * * id est: Decipientibus mulieribus senatus consultum auxilio non est. Infirmitas enim fcemi-narum, non callidiias auxilium demit. Dig. L. 16, T. 1,1. 2, par. 3 ; ditto ; 1. 11,12, 13.

The Spanish law provides that a woman can be held responsible when she clothes herself in the apparel of a man or practices some other fraud by which she is taken as security by one who believes her to be a man ; for the rights which women enjoy with respect to suretyship, are not granted to enable them to practice fraud, but on account of their natural inexperience (simplicitas) and feebleness.

“ La sexta (razón) es quando la muger, se vestiese vestiduras de varón enganosamiento, o’feciese otro engano qualquier, porque la resce-biese alguno por fiador cuidando que era varón ; ca el derecho que han las mugeres por si, en razón de las fiaduras non les fue otorgado par ayurdarse del en el engano, mas por la simplicidad et por la flaqueza, que han naturalmiente.” Y. Part. tit. XII, 1. Ill,

Under the French system, where a married woman -resorts to fraudulent practices to procure money she is not permitted to gainsay her doings and to claim a release from liability:

“ En principe et aux termes de l’art. 217, (say the learned jurists who' have compiled the Mómoire de Jurisprudence, published in Toulouse,, vol. 6, p. 388.) toutes les obligations contractées par les femmes mariees sans l’autorisation ou le consentment de leurs maris, sont nuiles ; mais il serait injuste de prótendre que cette disposition qui n’a été portée que dans l’intérét des femmes, püt leur fournir 1’occasion, ou le pretexte de tromper impunóment les tiers — Mulieribus subvenitur, ad hoc ne-decipiantur, non vero habeant occasionem decipiendi. L. 110, £4 ff. de Beg. Jur. Le senatus consulte Vellé'ien qui autorisa les femmes á se faire relever des obligations qu’eiles auraient contractées pour autrui, statua qu’elles ne pourraient point invoquer le bónéñce de la restitution, si le cróancier prouvait qu’il avait été trompé. Y. 1. 2 ?¿2, 3 and 3 ff. ad ' Senat. Oons. Yell. 5 et 18 O. eod. tit. Ainsi une femme marióe, qui vit séparóe de son mari depuis plusieurs annóes, qui passe,publiquement pour veuve, qui accródite cette opinion en prenant cette qualitó dans des actes publiques et cache frauduleusement sa qualitó de femme mariée, en contractant ainsi, contráete une obligation : quoique nulle en elle méme, cette obligation ne doit pas moins avoir son effet, parcequo le dólit qn’elle a commis en prenant une fausse qualité pour tromper le préteur n’est bas moins. punissable quoiqu’elle soit marióe et cette femme ayant contráete par la, des suites de son dólit, cette indemnitó ne peut etre moindre que le montant de l’obligation qu’elle a souscrite. La demande en nullitó d’une pareille obligation, peut d’ailleurs ótre repoussóe par d’autres principes. L’erreur commune a le privilege de constater un droit. Error communis facit jus. Ce principe estconsacré par la loi * * * et adoptó par la jurisprudence franijaise.

See Merlin, Yo. Autorisation Maritale, seo. 7, Nos. 4,19.

Toullier, Droit Civil, T. 2, Nos. 622, 623.

Pothier, Puissance Maritale, Nos. 28, 53.

La femme marióe qui est convaincue d’avoir commis le dol, ou d’y-avoir participó, ne trouve dans les lois aucun moyen d’impunitó. * * * Cette dissimulation ne fait qu’aggraver le dol qu’elle a commis. Elle doit suecomber á toutes les condamnations qu’elle a encourues.

Chardon, Dol, vol. 1, p. 74, No. 48.

La loi en plagant la femme sous le protectorat de son mari, n’a pas. entendu lui assurer l’impunité de ses mauvaises actions. Elle l’oblige a en róparer les effets. La femme qui parvient á contracter avec une per-sonne qui ne la connait pas, en la trompant sur son ótat, se rend cou-pable de faux, ou au moins, d’escroquerie, et toutes les obligations que le contrat lui impose sont aussi exécutoires sur sa fortune personnelle que si elle avait été autorisée par son mari. * * * La vali-ditó des engagements de cette femme est universellement reconnue, et la doctrine des auteurs sur ee point de droit a été confirmee par de nom-breux arrets.

Chardon, Trois Puissances, vol. 1, p. 139, Nos. 85, 87, 88 ; see, also,. Vazeille 2, 313 ; Duranton 2, 463 ; Delvincourt, 1, 334 ; Fremy, Dic. de Proc. Fem. Mar. No. 70; J. P. 1809, p. 321; J. P. 1808, p. 121.

Un manage valablement contráete, mais tenu secret, ne peut étre oppose aux tiers qui l’on ignore, et une donation contractuelle faite par la femme a un tiers, ne peut étre annullóe par défaut d’autorisation ma-ritale. J'. P. Agen, 1822, p. 670 ; J. P. Grenoble, 1822, p. 760.

Une femme marióe qui a pris dans les actes la qualitó de veuve, tandis qu’elle connaissait l’existenee de son mari, et qui est parvenue a l’aide de cette fausse qualitó, et par dol, a se faire preter certaines sommes, ne peut attaquer de nullité les obligations qu’elle a souscrites, sous le pretexte du défaut d’autorisation maritale.

J. P. Cassation, 1824, p. 790.

It is not to be forgotten that the debt evidenced by the note for $2500 and secured by the mortgage last given, was contracted under representations made by the plaintiff in injunction, in a petition, the verity of which she has attested under oath, during the absence of her husband from the State, and the judicial authority of a District Judge under the provisions of Art. R. C. C. 126, 127, 128.

That judicial authority, when once obtained, is fully protective of parties dealing with married women and not proved to have been guilty of fraudulent practices.

By reference to articles R. C. C. 2357 et seq., it will be seen that immovables settled, as a dowry, can be alienated or mortgaged- during marriage, with judicial authorization. The articles on the same subject-matter, are articles 1557 et seq. of the Napoleon Code, which have often been the subject of critical examination both by commentators and by courts of justice. Commenting upon them, Troplong says :

“ Quand méme il serait articuló et prouvó que les époux ont agi entre eux frauduleusment, si le tiers qui a acheté, ou próté son argent, est de bonne foi, tout doit étre maintenu á son égard. II a traite sous la garantie des formes judiciaries; il nesaurait étre victime de simulations qui lui sont étrangéres. O’est ce que la Oour de Cassation a tres bien jugó (17 Mars, 1847,) dans une espece, oú les epoux s’ótaient entendus-avec Tin ami complaisant pour simuler des dettes et faire mettre le mari en prison et oil, grace a cette fraude, ils avaient obtenu du tribunal une'autorisation d’emprunter pour faire cesser ¡’incarceration. Un tiers ótranger a ces manoeuvres s’était présente pour traiter sur la foi de ce jugement et avait fait leprét. Plus tardlafemme congutl’ideé de se dégager de ses obligations sans bourse délier ; elle allégua les circon-stances par lesquelles on avait surpris la religion de la justice, par de vaines apparenees. La Cour de Paris, sans vouloir examiner sa bonne foi, annula les actes intervenues, en se fondant sur la simulation machia-vólique pratiquóe pour porter atteinto á l’inaliénabilité dótale. Mais par l’arrét de la Chambre Civile, cette decision a étó cassóe, et c’est avec raison que la Cour de Cassation a arrétó dans sa naissance, cette jurisprudence funeste. II n’y aurait plus eu moyen de trailer aveo des époux dotaux, m 'Sme sous Végide des décisions judioiaires.

Troplong, Cont. Mar. 4, Nos. 3499, 3438, 3329, Cass. 1 Aoút, 1842 ; Dalloz 42,1, 325.

Lorsque des tiers ont contracté avec la femme mariáe sur la foi d’une autorisation accordóe par justice, la femme n’est plus recevable á quereller son engagement, sous pretexte que l’autorisation serait con-traire a la loi.

Grenoble, 9 Nov., 1839 ; id. 14 Juin, 1841; Toullier, T. 5, p. 310 ; S. V. 40, 2, 209 ; D. 40, 2, 157; S. V. 41, 2, 612 ; D. 41, 255 ; J. P. 41, 2, 613.

Lorsque l’autorisation d’alióner un immeuble dotal a étó accordóe dans l’un des cas prévus par la loi, et que toutes les formalités voulues ont été remplies, l’acquéreur de l’immeuble est a l’abri de toute recherche. On ne peut prétendre contre lui que les faits allégués pour motive l’aliénation n’étaient pas vrais. Caen, 12 Juin, 1842 ; S. V. 42, 2, 462. La vente doit etre considórée comme inattaquable. Paris, 26 Pev. 1833 ; S. V. 33, 2, 230 ; D. 33, 2, 144.

“ A nos yeux, les engagements contraetós par la femme, en vertu du jugement lui accordant l’autorisation d’alióner, méme hors des cas dó-terminós par la loi, sont pleinement valables, et tout aussi obligatoires pour elle, que si l’autorisation avait étó légalement accordóe. Les tiers ■ ne doivent pas avoir a souffrir de l’erreur des juges. Si l’on admettait un systéme eontraire, on irait' contre l’intórét des femmes ellesmémes, car .jamais elles ne trouveraient des personnel qui voulussent alors con-tracter avec elles dans les cas prévus, á raison du danger possible de l’annulation ultórieure de leur contrat.”

Gilbert, Code Annotó, art. 1558, Nos. 7,10, 50, 53, 54, 55.

Our own jurisprudence, since the passage of the act of 1855, is to the same effect.

The law as it stood previous to that year in regard to married women remains unimpaired, with the difference that a married woman taking the benefit of that act is placed in the position of a feme sole, her contract furnishing full proof against her; while under the general jurisprudence those who deal with a married woman are botad to see that the contract made enures to her benefit.

Rice vs. Alexander, 15 A. 54.

The holders of a debt contracted by a married woman, with the authorization of the District Judge, according to the act of 1855, is not bound to prove that the consideration thereof enured to her benefit. The burden is on her.

The effect of the law and the certificate issued under it, is to dispense the creditor, by an observance of its formalities, from the obligation which would otherwise exist of proving that the money advanced by him was actually applied to the benefit of the wife, otherwise such creditors trusting to judicial action, would be exposed to fall into snares and pitfalls.

Miller vs. Wisner, 22 A. 457.

Brooks vs. Stewart, 26 A. 714.

Eeltus vs. Blandin, 26 A. 402.

Oity National Bank vs. Barrow, 21 A. 390.

Knight vs. Mentz, 23 A. 538. Succession of Hóbrard, 18 A. 485, 494.

Reich vs. Rosselin, 24 A. 418 ; Rainey vs. Asher, 26 A. 262 ; Gay & Co. vs. Deynoodt, 27 A. 249; Lock vs. Lafitte, 28 A. 232; Taylor vs. Bowles, 28 A. 295; Pilcher vs. Pugh, 28 A. 495 ; Hollingsworth vs. Spanier, 32 A. 203.

In the ease of Bein vs. Heath, 6 H. 228, the Supreme Court of the United States said, that if a party has loaned money to a married woman in Louisiana, and has been induced by her representatives, and those of her husband, to believe that the money loaned was for the sole benefit of the wife, the latter will be bound, though the money was in part borrowed for the husband, and used by him, and whatever be the law of Louisiana in this particular, a wife can obtain no relief in chancery against such a contract. It is a principle of chancery that one who asks 'relief must have acted in good faith.

However respectfully we submit to the ruling of that exalted tribunal, under the circumstances of the case in which it was made, we do not consider that it is binding upon the State tribunals, in the administration of justice,in those cases in which married women have not been examined and authorized, under the act of 1855, but we think that the principle which it expounds may be extended to those cases in which, as in the present one, such examination has taken place, and such authority has been given her, when third parties making the loan are in good faith, and are not charged with, and convicted of, knowledge and commission of ill-practices.

In some instances married women are also estopped at common law when guilty of fraudulent representations. Bigelow on Estop., 443, ■445, and notes.

Enlightened by the authorities which we have taken pains to examine and quote with precision, we come to the conclusion that the plaintiff in injunction is absolutely estopped from contesting her liability for the two notes of $1500 and $500 first issued by her, for which she would be bound, even under the law as it stood prior to 1855, and that the ■seizing creditor cannot, therefore, be held to prove that the consideration of those two notes has enured to her benefit.

The proceeds of the note of $2500 sued on having been applied to the retirement of those two notes, the plaintiff in injunction has, therefore, to that extent, received a valid consideration for that note. 31 A. 834, O’Keefe vs.. Handy.

In respect to the difference, it is sufficient to state that the evidence shows that she received it and applied it to the redemption of articles ■of jewelry of hers, pawned out of the State, and which must have been ■deemed of more value than the sum invested to redeem them. But, had it not been the case, the plaintiff could not have defeated the claim of the seizing creditor, who is relieved from the obligation of proving that money enured to her benefit, as she had been authorized by the judge to. ■contract the loan and the burden was on her, and as he did not know .and could not have known that the proceeds were to be, even if they were so, improperly applied by her.

The plaintiff in injunction cannot claim that the rate of discount was ■usurious. By placing herself under the operation of the Act of 1855, R. C. C.126, 127, 128, she has assumed the attitude of a feme sole, capable of incurring all the obligations to which men of legal competency can validly subject themselves. Under the provisions of the act of 1855, p. 352, incorporated in the R. C. C. as Art. No. 2924, the discounter of any note has the right to claim and recover the full amount of such note, with interest, notwithstanding the rate of discount has been beyond the rate of eight per cent per annum.

The decision in Hollingsworth vs. Spanier, 32 A. 303, which is to the effect that the authorization given by the j udge to a married woman under the Act of 1855 does not imply the power to contract for usurious interest, although applicable to this case in many respects, has no bearing upon it in that regard. The grave charges preferred are without foundation. Both the notary and the seizing creditor are relieved from reflection in the premises.

The defendant in injunction has prayed for damages in her answer to the suit and to the appeal. As the act of mortgage provides for the payment by the plaintiff of the fees of the attorney suing to recover •the debt, and as the plaintiff may be entitled to mercy, we do not feel ourselves authorized to grant any damages.

We have looked at the decretal part of the judgment of the lower court. It is not couched in the language in which it should have been. Considering- that it cannot mean a nonsuit, but is intended to dissolve the injunction and to reject the demand of plaintiff with judgment in favor of the defendant in injunction, and placing that construction ■upon it,

It is affirmed with costs.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 6383.
    A. B. Seelye vs. Zalmon Taylor.
    'There having heen a partnership betweon Plaintiff and Defendant, no specific indebtedness resulting therefrom, can be claimed by the former. The only action he can maintain, is one for the settlement of the partnership affairs.
    ^PPEAL from the Sixth District Court, parish of Orleans. Saucier,

    H. N. Ogden for Plaintiff and Appellant.
    Merrick, Race & Poster for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the defendant for twenty-six thousand dollars.

The suit is based on a contract entered into between the parties, on ■the 7th of February, 1872. The substance of this contract was that Taylor, the defendant, had purchased asphaltum mines in the Island of Cuba, from the Cuba and Louisiana Mining and Paving Company. The plaintiff, Seelye, was employed to go to Cuba and examine into the titles of the mines, liquidate the indebtedness of the company, for which Taylor was bound, to reconstruct and put the mines in working condition, and to take out and ship asphaltum to all parts where there was any demand for it. Taylor was to furnish all' the money to carry out these objects, and, in consideration for his, Seelye’s, services, he was to receive one-half of all the profits that might accrue from the sales of mines, products, patents, or otherwise. It was further stipulated that should a partnership be formed between the parties, or others contracting with them, or a corporate body be formed to conduct the affairs of the mines, that each and every one interested should share the profits of the business in proportion to the amounts put in.

The plaintiff alleged that he had performed all the obligations imposed on him by the contract, but that the defendant had failed to perform those resting on him ; that the defendant had sold patents to the value of $8000, one cargo of asphaltum for the sum of $4000, had taken control of another shipped by the plaintiff to London, worth $15,000, and had finally sold the mines themselves for $25,000,,and one-half of these sums he claimed to be entitled to recover of the defendant.

The defendant first filed an exception, to the effect that the plaintiff could only sue for the settlement of the partnership, which was overrated.

Subsequently a rule was taken by the defendant on the plaintiff to produce the act of partnership between the parties. A contract of partnership was produced and filed under the order of the court.

Thereupon the defendant filed a peremptory exception, alleging the existence of the partnership, and denying the right of the plaintiff to claim any specific indebtedness, and averring that the only action he could maintain was one for the settlement of the partnership; and coupled with this exception was the answer, which substantially contained a denial of any liability to the plaintiff, for many reasons assigned, and which answer was expressly made subject to the exception.

Under these pleadings there was a volume of testimony taken, making a record of more than 600 pages, and testimony, as usual in such cases,-of the most conflicting character. There was judgment for the defendant virtually sustaining the exception, and plaintiff appealed therefrom.

This case presents an instance of an unfortunate speculation, and the result that almost always follows such a speculation, of a disagreement between the parties thereto, a struggle to save something from the wreck, and an effort upon the part of one or both to repair the common loss, by laying the blame of the failure on the other, and compel him to make good such loss.

We have gone patiently through this record, examined and re-examined every particle of the evidence, and deliberately weighed the conflicts therein, to ascertain the exact rights of the parties. We have viewed the case in every aspect presented by the record, and we find that, were we to consider and weigh, technically, the acts, declarations and writings of each party, we could establish, by culling from them, all, and more, perhaps, than his adversary has charged against him.

If, at the threshold, we were to view and decide this case as presented by a technical construction of the pleadings, it could be easily disposed of. Strictly construed, the claim of plaintiff is based upon that allegation in his petition in which he avers “ that in consideration of his services, said Taylor agreed to divide equally with him all profits that might accrue from the sale of mines, products, patents or otherwise,” The critical examination we have given the evidence, so far from enabling us to discover the profits to divide between the parties, has satisfied our minds that there are nothing but losses to share between them ; losses to the plaintiff of some labor and much valuable time and to the defendant of a considerable amount of money. Let us, however, consider this case, as the plaintiff’s counsel contend we should do, as a case in which the pleadings are enlarged by the evidence, and we find substantially the following facts touching the acts and proceedings of the respective parties.

After the execution of this contract declared on in the petition, the plaintiff went to Cuba with -money furnished by the defendant. He caused the titles of the defendant, to the mines to be translated into Spanish and recorded, and did, we presume, whatever else was necessary to make the titles secure; he settled the debts of the company from whom Taylor had bought the mines, and for which he seems to have been responsible, on the most advantageous terms ; examined the mines and commenced work in the same, and made to Taylor the most favorable report of the prospects of the business — all of which seems to have given Taylor entire satisfaction at the time. Seelye returned from Cuba to New Orleans, and shortly thereafter both parties went to Cuba. Taylor only -remained a few days, but Seelye remained there for more than a month. He again went to the mines, supervised the working of the same, and got out and shipped to London, in his own name, a cargo of several hundred tons.

It seems to have been the understanding between the parties that the plaintiff was to accompany or follow the cargo of asphaltum to London and attend to the sale of it and endeavor to create a market for it if none existed. This we gather from the letters of both parties. The plaintiff, however, did not go to London, but, on his return to the United States, abandoned the enterprise entirely, and announced this fact in a letter to Taylor. The money required for all the expenses incurred was furnished by Taylor, and a considerable debt was created by the shipment of the cargo to London, the freight alone amounting to several thousand dollars.

The grounds assigned by plaintiff, both in his letter and in his oral testimony before the court for abandoning the enterprise, were that the defendant, Taylor, had failed and refused to make him a title to one-lialf of the mines, as promised.

There was no market in London nor elsewhere for this Cuban as-phaltum, only a small portion of that shipped could be sold, and the highest offer made for it was not sufficient to pay the freight and charges, on the cargo. It is unnecessary to recapitulate the evidence upon which we base our conclusion on this point. The sale of the asphaltum was a complete failure.

The final result was that Taylor sold the mines and received as the price of the same some stock in tlie company who were to own them, and which he considered worthless, and, to avoid the expense that holding the stock might involve him, returned it to the party from whom he received it.

We have carefully considered the reasons assigned by Seelye for abandoning the concern, with a view to ascertain whether his complaint was well founded. Have considered it as a question of fact as well as of iaw. Taylor did, in an act of partnership between him and Seelye, dated on the 1st of June, 1872, declare that Seelye was the joint owner of the mines with him, and he subsequently wrote to Seelye, expressly confirming this fact. There is no doubt that this was sufficient to have invested him with the half ownership of the mines. No formal deed was necessary to effect this.

The ownership of the mines did not comprise the ownership of the soil in which the mines were located, as we learn from the evidence in the record, but merely the privilege of working the mines and taking the material or ore therefrom, which privilege, it also appears, was lost or forfeited by an abandonment of the mines for six months.

The mines being situated in the Island of Cuba, the question respecting the title to them must be governed by the laws of Spain. We have carefully examined the Spanish law on this point, and are satisfied that even a verbal sale of the mines would have conferred a legal title. In that part of the Partidas which treats of sales, we find a chapter (VI) bearing this title: “ En que manera se debe facer la vendida y la compraand from this chapter we quote the following :

“ Opmpra y vendida se puede facer en dos maneras; la una es con carta y la atra sin ella.” And this principle applies to all kinds of property, movable, or immovable, for, from an examination of the whole subject, as there laid down, we find no distinction, and by an early decision of this Court, in the case of Gonzalez vs. Sanchez, 4 N. S. 658, such was held to be the law of Spain. '

It is well to note that this complaint does not seem to have been timely. It was not urged in response to the letter which purported to confirm the right conceded to Seelye in the act of partnership, and we are inclined to believe it would never have become so prominent in his mind, if the conviction had not, about that time, overtaken him, that the mining and shipping of asphaltum was a decided failure, and likely to involve the owners of the mines and cargo in a considerable liability.

If we gave weight to the speculative opinions of witnesses touching-the nature of these mines, or even to the speculation that one person, who figures prominently in the history of these mines was, by great ■shrewdness, enabled to make out of . them, we might come to a different conclusion on this point; but we prefer to take the actual results of the •trials made by the parties to this suit to sell the cargoes shipped, and look at the actual facts, than form our opinions from the speculative ■estimates of witnesses, and an occasional “ lucky hit ” made with them ■by enterprising adventurers.

The Cuban asphaltum, as an article of commerce, was a failure. There is no doubt but that plaintiff and defendant, and others who testified in the case, were at one time of a very different opinion, and sincerely believed in the value of the mines : and we believe, too, that the plaintiff is largely responsible for the favorable impression that the defendant at one time entertained of this enterprise, produced by his favorable representations, after he had visited and examined the mines, and it was mainly from that representation that Taylor was induced to make a further advance of money to work them.

We have thus commented upon the facts of this case, presented in the record, under the view that by the liberal construction of the pleadings contended for by the plaintiff, it was entirely legitimate to do so-. We are, however, of the opinion, that a thorough investigation of all the facts pertaining to this controversy, and a just and complete settlement between the parties could only be made by and through an action of partnership. In other words, that the exception filed by the ■defendant was properly sustained by the judge a quo.

The plaintiff swears that the contract of partnership was never carried into effect, and some acts and writings of the defendant, to some extent, corroborate this statement. But on a careful consideration of all the evidence, we are satisfied that there was a partnership between the parties, and that their acts and proceedings relating to these mines, after June 1,1872, are to be considered as done under this contract. There is the contract itself, stipulating clearly the obligations and duties of each party.

The plaintiff gave his notes as stipulated, and delivered them to the ■defendant. Defendant furnished the money, as he promised to do, to carry out the purposes of the partnership. The mines were worked as provided by the contract. Taylor swears that all this was done under the partnership contract. Seelye acted as the managing partner. He .got out a cargo of asphaltum, and shipped it in his own name, which he surely would not have done were he a mere agent.

In several letters written by Seelye to Taylor he makes distinct acknowledgments that this partnership agreement had gone into effect. It is, perhaps, only necessary to quote from one of these letters of Sep- - ¿ember 10th, 1872, in which he uses this language :

“ Over three months since this contract between you and I was made, and I have gone on faithfully in the performance of my part of it,, .and greatly to the detriment of my personal interests.”

He could have referred to no other contract than the one of partnership.

The power of attorney, given subsequently to the date of this partnership contract, would seem somewhat inconsistent with a continuance of the partnership, but it seems to have been thought necessary by the attorney in Cuba, who advised the same; and, on considering all the facts relating to it, and the situation of affairs relating to these mines,, and of the parties themselves at the time it was given, we cannot believe that this power of attorney was intended to supplant and did, in fact,, abrogate the partnership.

Entertaining these views, we think the judgment appealed from was. correct, and it is, therefore, affirmed with costs.


author: Roché, J.

text:
    No. 7975.
    Wood, Slayback & Co. vs. John Rocchi, New Orleans Insurance Association, Garnishee.
    Plaintiffs, with a final judgment against Defendant for more than $1000, seized in the hands-of Garnisliee property worth only $600. The contest is between Plaintiffs and Garnishee, both claiming a right of priority and preference on the property seized, and the dispute is limited to that property. This Court is without jurisdiction ratione materiae and the Appeal is dismissed.

      i PPEAL from the Eourfch District Court, parish of Orleans, Houston, J..
    Kennard, Howe & Prentiss for Plaintiffs and Appellees.
    On appeal from a judgment making absolute a rule to traverse the-answers of a garnishee, which traverse is limited to the question of right of the garnishee to retain certain stock in its hands, the stock constitutes the matter in dispute, and if it is not shown to be worth more than one thousand dollars, the Supreme Court has no jurisdiction.
    Alfred Grima, for Garnishee and Appellant.
    First — In cases of seizure by garnishment upon a judgment for .an appealable amount, the jurisdiction of this Court is tested by the demand of the judgment creditor, where he and the garnishee setup adverse claims against the thing seized.
    Second — The Constitutions of 1845, art. 68, of 1852, art. 62, and of 1868, art. 74, did not in words specify cases where a fund is to he distributed as falling under its jurisdiction. This Court, under the-rule of said constitutions, maintained its jurisdiction in cases of concurso, where the fund was of an. appealable amount. The Constitution of 1879, art. 81, in specifying the case of a fund to be distributed, confirms the jurisprudence settled under former constitutions in cases of concurso.

    'Third — This case does not present any issue of the ownership of the property seized; the value of the same is not the test of the jurisdiction of this Court.
   MotxoN to Dismiss.

The opinion of the Court was delivered by

Roché, J.

Plaintiffs and appellees move to dismiss this appeal •taken by the garnishee for the following reasons :

1st. Because we are without jurisdiction r añone mater ice.

2d. Because the matter in dispute does not exceed one thousand ■dollars.

3d. Because the fund and property to be distributed do not equal in value one thousand dollars.

4th. Because the garnishee has not an appealable interest sufficient to give this Court j urisdiction.

The record shows, that plaintiffs, as judgment creditors of the defendant for $2479 80, issued execution on their judgment and obtained garnishment process directed against the New Orleans Insurance Association.

In answer the garnishee denied any indebtedness to defendant, or to have in its possession or control any funds, property, rights, or credits belonging to defendants, but admitted that he was the owner of twenty shares of its capital stock at a par value of $30 each, and finally averred that it was a creditor of defendant for $942 49, to secure the payment of which the company claimed a priority of right on the stock owned by defendant, or on the proceeds of the same.

Plaintiffs traversed the garnishee’s answer, moved to strike out its claim for alleged priority on the stock, and for an order directing the sheriff to sell the defendant’s stock, and to apply the proceeds to part satisfaction of their judgment.

Judgment was rendered in their favor as prayed for, and the Insurance Company, garnishee, has appealed.

The four grounds urged by appellees for the dismissal of the appeal, amount in reality to only one, to-wit: our want of jurisdiction ratione materice, because the matter in dispute in the proceeding does not exceed one thousand dollars.

They contend that the amount involved in this appeal is the value of defendant’s stock in the Insurance Company, shown by the garnishee-to be worth only six hundred dollars, an amount which falls far short of our jurisdiction ; that the judgment against defendant has long since become Anal, and that the amount of such judgment cannot be-made the test of bur jurisdiction on this appeal.

Appellant urges that, in their supplemental petition for garnishment process, plaintiffs prayed for judgment against the. Insurance Company for $2479 80, and that this prayer fixes the character of their action, and is for an amount sufficient to vest this Court with jurisdiction. Several authorities are quoted in support of this position, and-if such was the actual state of the pleadings, appellant’s conclusions-would be irresistible, and his appeal would be maintained.

But the record presents a different issue, for it appears that in-their traverse to the answers of the company, plaintiffs did not negative all its statements ; but on the contrary, admitted the truth of its answer, in so far as it showed that the only property which d'efend-ant had in the company consisted of his twenty shares of stock, valued-at $600, and they only denied and moved to strike out that part of the answer in which garnishee, alleging a claim against defendant,, urged his right of preference to the proceeds of such stock, in payment-of its debt; and concluded, in their rule, by praying for an order directing the sale of such stock by the sheriff, and the application of the-proceeds thereof to the satisfaction of their judgment by preference over all other creditors.

They did not pray for a moneyed judgment against the garnishee,, or for any other relief, beyond the recognition Of their superior privilege on the proceeds of the stock.

By resorting to this rule, plaintiffs unequivocally shifted their position, and clearly abandoned their previous prayer, as set forth in their supplemental petition. The character and amount of their demand against appellant are therefore to be tested under the relief prayed for-in their rule to traverse garnishee’s answer ; and the issue is thus-narrowed down to the struggle between plaintiffs and garnishee for- the-control and appropriation of the proceeds to be realized by the sale of defendant’s stock in the Insurance Company, and the judgment appealed! from did not, and could not, pass or adjudicate upon any other matter.

The pleadings exhibit no contestation between plaintiffs and defendant ; all matters of dispute between them having long since been settled by the final judgment rendered by this Court on the original demand. We, therefore, conclude that the real and only matter in dispute under the pleadings, as they reach us on this appeal, is the value of the stock owned by defendant' in the Insurance Company, which /stock is shown to be of an amount under our appellate jurisdiction. and that under no circumstances we can render in this case a judgment for a sum exceeding one thousand dollars. The door, is therefore, closed against us, and the judgment must remain undisturbed.

The authorities quoted by appellant refer to a well established rule of jurisprudence under which the jurisdiction of this Court, in appeals in garnishment proceedings, is to be tested by the amount of plaintiff’s claim against his debtor, and for a like amount over and against the garnishee. In those cases, the rule was applied where plaintiff coupled with his original suit an attachment in the hands of a third person, and prayed for judgment against both debtor and garnishee in an amount sufficient to vest jurisdiction in the appellate court; or where on execution of a judgment previously obtained against his debtor, plaintiff, in his garnishment process, sought to recover judgment against the garnishee personally in an appealable amount. But such are not the issues presented in this case, when plaintiffs ask for no judgment against their garnishee personally, but seek to recover judgment affecting property of the value of six hundred dollars only. In this case the only contestation is between plaintiffs and garnishee, both claiming preference over a fund to be distributed, and not of an appeal-able amount; and in such a case the amount of the original demand being no longer contested, cannot be used as the test of our jurisdiction.

It is, therefore, ordered that the appeal herein taken be dismissed at appellant’s costs.


author: Howell, J. Poché, J.

text:
    No. 6421.
    L. L. Mayenno vs. Mrs. J. H. Millaudon, Wife &c.
    On the Motion to Dismiss.
    Tii© amount of taxes on the property in controversy and tlie revenues therefrom are evidenced by the Record. It is sufficient to show the appealable amount in dispute.
    ON the Merits.
    The proceedings hy which "the purchaser at a tax-sale sues to be put in possession, although summary, should behy Petition and Citation, and not by Ruloto show cause. Pischel vs. Mercier, 32 An., 704, affirmed.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, j:

    Chas. S. Rice, A. E. Billings and J. H. Eerguson for Plaintiff and Appellee.
    ¿T. S. Tully for Defendant and Appellant.
    Eirst — A proceeding by rule to be placed in possession of property alleged to have been purchased under Act 47 of 1873, at a tax-sale, is not authorized by law. The party applying must proceed by petition and citation.
    Second — In a tax-sale every formality of law must be complied with under pain of nullity.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Howell, J.

A motion is made to dismiss this appeal on the grounds that the appellant has no appealable interest and has not made proper parties to the appeal.

First — The answer of the appellant to the rule, from the judgment on which the appeal is taken, alleges that the value of the property in controversy is $6000, which is supported by the amount of the taxes thereon and the revenues therefrom, as shown in the record, the contest being between the purchaser at a tax-sale and the original owner for the delivery and possession of the property.

Second — The second ground is not urged in appellee’s brief, but we do not find any force in it.

Motion refused.

On the Mebits.

The opinion of the Court was delivered by

Poché, J.

Plaintiff, alleging that he is the purchaser at a tax-sale of certain property assessed in the name of defendant, proceeds by rule to obtain possession of the property thus acquired by him and yet in the possession of the original owner.

Defendant excepted to the proceeding by rule, her exception was overruled, and she answered alleging the nul’ity of plaintiff’s title, on the ground of irregularities and illegalities in the tax-sale.

From a judgment rendered against her on the merits, and having reserved the benefit of her exception, defendant has taken the present appeal.

In the case of Fischel vs. Mercier, 32 A. 704, we reviewed in full the identical question involved in defendant’s exception, and we decided that the purchaser of property at a tax-sale cannot, under our laws, proceed to evict the former owner by a proceeding by rule, but must bring his action by petition and citation, under which the validity of his pretended sale can be fully investigated.

The district judge erred in overruling defendant’s exception in this case.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed ; that the exception of defendant to the proceeding by rule be maintained, and that plaintiff’s action be dismissed at his costs in both courts.


author: Bermudez, C. J.

text:
    No. 7960.
    Allen, Nugent & Co. vs. G. W. Cary et al.
    A Motion -was made in tlie Court a qua, to dismiss tlie Appeal, on tlie ground that the surety on the bond was a commercial firm, -which did not answer the requisites of the law. The lower Court did not pass upon this point in deciding the Rule, and reserved the right of Appellees to urge it before this Court. The parties not having appealed from the ruling, this Court cannot revise it.
    The partner who signed the name of his firm on the bond, being personally bound and presenting the legal qualifications of a surety, the bond is valid and the Appeal should be maintained.

      \ PPEAL from the Third District Court, parish of Orleans. Monroe, J.
    W. S. Benedict for Plaintiffs and Appellees.
    Bayne & Renshaw and John A. Campbell for Defendants and Appellants.
    The Court a qua, after hearing, determined the solvency of the surety.
    A commercial firm is competent to become sureties where the partners consent, and the person signing the bond is always bound and is a good surety.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appeal bond in this case was signed by A. H. May, in the name of the firm of Richardson & May, as surety, of which he was a member.

It is claimed that, because the bond is signed in the name of the partnership, it is irregular and void. In support, it is said: that the name of the proposed surety is not that of a person able to contract; that the firm, as such, cannot become surety without the consent of its .members ; that one of the members is a non-resident and does not possess the requisites of the law ; that the surety on the appeal bond is not such as the law requires.

The record shows that an identical rule was taken below by the plaintiffs, under which evidence was received. But the court merely passed upon the solvency of the surety, reserving the rights of the plaintiffs to urge before this Court the other grounds, dismissed the rule.

We find no complaint of that judgment here, neither party having ■appealed from it. In the absence of such complaint and appeal, we •can pass upon neither the fact of the authorization of May by his ■co-partner Richardson to sign the bond, in the name of the firm, nor upon the fact of the goodness and solvency of May or of the firm, and are confined to the other grounds.

It is well settled, that the partner who subscribes the name of the firm, without authority, is personally bound in all cases. 13 L. 362 ; 21 A. 731.

We derive our information of the signature of the bond, in the name of the firm, by Mr. May, from the motion and the brief in support of it. On the face of the motion, it is untenable.

The right of appeal is a constitutional and valuable one, which should always be entertained with favor whenever it exists. 30 An. 285.

It is, therefore, ordered that the motion to dismiss be overruled.


author: Fenner, J.

text:
    No. 8088.
    City of New Orleans vs. J. R. A. Gauthreaux. W. H. Merkel, Intervenor.
    The individual creditor who lias attached partnership assets, is not a necessary party to a-suit in which a liquidator is subsequently appointed.
    The attachment of tho partnership assets by the individual creditor is illegal and must be-dissolved, and the attached property surrendered to the liquidator of the partnership.
    The order of court appointing a liquidator, is an interlocutory order, which may be rendered in vacation.
    A. judgment rendered in vacation by consent of the parties is valid even as to third persons,, in the absence of fraud and collusion.
    There is no reason in law to infer that the testimony of a party to the suit would be prejudicial, to his side of the controversy, from the fact that he does not offer himself as a witness
    It is now well settled in principle, that a partnership may be created by construction of law, as to third persons, although neither intended nor actually existing as between the parties themselves.
    ^PPEAL from the Oivil District Court, parish of Orleans. Tissot,.

    Samuel P. Blanc, Assistant City Attorney, and E. N. Butler, for Plaintiff and Appellant.
    Breaux & Hall and Ellis & Ellis for Merkel, liquidator, Appellee.
    Eirst — The effect of an attachment is to divest the possession, not the-ownership, of the debtor. As to the creditor, the only effect is to give him a privilege on the property attached, with right to be paid-by preference from its proceeds. 9 Rob. 375, Tyler’s case.
    Second — Partnership property cannot be seized for the individual debir of one of the partners. 21 An. 518 ; 27 An. 556 ; 11 R. 130 ; 3 An. 319. Nor can a partnership debt due a partnership. 10 An. 756 ; 3 An. 322 : 27 An. 556 : 11 R. 130.

      Third — A judgment appointing a liquidator is an interlooutomj order under Rule III, Rules Civil District Court.
    Fourth — -Parties to a suit are competent to agree that the judge shall' take a case under advisement and sign the judgment in vacation, and such judgment is good as to third persons. 27 An. 402, 403 ; 15 An. 477.
    Fifth — An appointment made by a court of competent jurisdiction, in due form, cannot be inquired into collaterally. 28 An. 806.
    Sixth — Possession creates a presumption of ownership. H. D. p. 1194, No. 13 ; do. p. 488 ; Louque’s Dig. p. 502, No. 3, p. 232 (c).
    Seventh — Persons are often held partners, as to third persons, when either by just implication, or expressly, they are not to be deemed partners between themselves. 18 An. 631; Story on Part. 36, 37, 48, 49, 53, 54, 64, 65 ; 3 Kent. 43, pp. 31-33; 4 N. S. 127 ; 9 Johns. 489 ; 4 R. 314 ; 5 La. 408 ; 30 An. 1180 ; 6 N. S. 50 ; 37 Conn. 259.
    Eighth — As towards third persons a partnership may arise by mere operation of law, against the intention of the parties thereto. 2 Hy. Black, 235 ; 4 Barn, and Aid. 663 ; 16 Ves. 49 ; 17 Id. 404; 19 Id. 291; 18 Id. 300 ; 6 Madd. 145 n. ; 4 East. 144 ; 10 Johns. 226 ; 16 Id. 34; 1 Story, C. 0. 371 ; 1 Cliff. 28.
    H. N. Ogden on same side.
   The opinion of the Court was delivered by

Fenner, J.

In the principal suit herein, the city of New Orleans, proceeding as a creditor of J. R. A. Gauthreaux, individually, obtained a writ of attachment, and caused to be seized thereunder the stock of goods and other contents of a grocery store, No. 48 Canal street, the business of which was carried on by W. H. Merkel, under the business name or style of “ W. H. Merkel.” It also garnisheed in the hands of Merkel all the rights, credits and property of Gauthreaux in the possession or under the control of Merkel.

Shortly after this seizure, Merkel instituted a separate suit in the-same court against Gauthreaux, averring that a partnership existed between the two, which transacted the grocery business at No. 48 Canal street, under the firm style of W. H. Merkelthat said partnership had been dissolved ; that the city of New Orleans, as an individual creditor of Gauthreaux, had caused' to be attached and taken into possession by the sheriff the goods and stock of the partnership ; and that, by reason thereof, it was for the best interests of the creditors of the partnership, entitled to be paid out of its assets by preference over the individual creditors of Gauthreaux, as well as of all concerned, that a liquidator should be appointed, and that a judicial settlement of the partnership affairs should be made. He, therefore, prayed that a liquidator should be appointed, and for a full liquidation and settlement of the partnership, and, after payment of its debts, for judgment decreeing him entitled to his partnership interest of one-third in the residuum. ■Gauthreaux answered, admitting the partnership, and concurring in the application for a liquidator. Thereupon, on motion to that effect, ■suggesting various circumstances rendering the immediate appointment of a liquidator necessary, and upon the written consent of most of the •creditors of the concern of “ W. H. Merkel ” approving the application for judicial liquidation, and recommending that Merkel himself should be appointed liquidator, the Court did so appoint him, requiring bond •and security. He gave the bond, and qualified accordingly.

Thereupon Merkel, as liquidator aforesaid, intervened in this suit, -claiming as liquidator the ownership and possession of the property ■attached, as being partnership property, not liable to seizure by an individual creditor, and demanding a dissolution of the attachment.

The city defends, (1), denying the validity of the appointment as liquidator; (2), putting at issue the existence of the partnership; (3), ■claiming the property seized to be that of Gauthreaux individually. The objections to the validity of the appointment are not tenable. They are, first, that the city of New Orleans, by reason of its attachment, was a necessary party to the liquidation suit. Not so. The effect of the attachment was to divest possession, not to disturb ownership, and the only result, if the attachment had been maintained, would have been to entitle the city to be paid by preference out of the proceeds of the property. The rights of the partnership, and of Gauthreaux & Merkel as partners inter se, could only be settled contradictorily between them. 'The city was not precluded, by the.appointment of the liquidator, from opposing all lawful defenses to his interference with her seizure, as she has done in this very case. The liquidator has no greater right than the partnership itself would have had, and the city has nothing to complain of. She does not pretend to be a creditor of the partnership, and she certainly will not admit that her seizure has made her a partner. Only partners and partnership creditors have a direct interest in the liquidation of a partnership.

Second. It is objected that the judgment appointing the liquidator was a nullity because rendered in vacation. It is not a judgment, properly speaking, but a mere interlocutory order, as to which the rules of the District Court provide that the court shall be always open. Besides, it was rendered by consent, and a judgment so rendered is valid between ■the parties, and, in absence of proof of fraud and collusion, as to third ■persons also. 27 A. 402 ; 15 A. 477.

Evidently, the vital question in the case is, partnership vel non. If the effects attached are partnership assets, it is past controversy that they cannot be seized at the suit of a creditor of an individual partner. If they are not partnership assets, it is equally clear that Merkel, whatever may be his personal rights, cannot claim possession in his capacity of liquidator.

It is not disputed that the grocery business carried on at No. Canal street was conducted by Merkel personally, and exclusively in his name. It is equally admitted that Gauthreaux furnished capital used in the business and was interested in both the profits and the losses. From these facts alone it indisputably follows that both Merkel and Gauth-reaux incurred all the liabilities of partners, and that Merkel, at least, was vested with all the powers to bind his co-partner.

The theory of the city that Merkel gave his entire time to the supervision and direction of the business, and subjected himself to all the responsibilities of a partner, without having any interest in the profits, is, to say the least, violently improbable, in the absence of proof of any agreement to remunerate him otherwise. To sustain this theory, the city relies upon the merest inferences from the slightest possible circumstantial evidence.

It offers some proof, by no means satisfactory, of the general repu - tation of Merkel as a man,without means prior to the inauguration of the business. It was not necessary that Merkel should furnish capital ; he might well have set tíis time and labor in superintending the business against Gauthreapx’s money. It is further shown that Merkel had no previous experience in the grocery business. It appears, however, that care was taken to engage the services of a competent and experienced grocer to aid in the conduct of the business, and it may well have been that Gauthreaux, in confiding so serious a trust of Ms means and credit, was more concerned in the trustworthiness of the man than in his business experience.

Proof is also offered, of conversations of Merkel and Gauthreaux, during the existence of the business, in which they denied the partnership. Neither one of them ever denied that Merkel was interested in the concern, which seems to be the vital point here. They only denied that Gauthreaux was a partner. Consi dering that Gauthreaux was a dormant or secret partner, whose name was not intended to be disclosed, these denials are easily accounted for, and they certainly throw no suspicion upon the interest of Merkel. This constitutes the whole affirmative proof offered by the city. On the other hand, the liquidator presents—

First — The judicial admissions of both the partners as to the partnership, and as to the interest of both in the profits and losses.

Second — The testimony of Mr. Logan, a highly respectable and un-impeached witness, who first suggested the enterprise to Merkel and 'Gauthreaux, and who was present at interviews between, them, touching its initiation, and was interested in the matter, because, being an experienced grocer, he desired to be, and was, employed to aid' in the conduct of the business. He testifies positively to the express verbal agreement between them, that they were to be partners and were to share •in the profits and losses in the proportion of two-thirds to Gautheraux •and one-third to Merkel.

Third — The testimony of Wilcox, the representative of Bradstreet’s ■Commercial Agency, who called upon Merkel, in August, 1879 (a date not at all suspicious), for the purpose of getting information as to the means of the concern, and who states that Merkel then told him that ■he and Gauthreaux were partners and their interests were as stated in -the testimony of Logan.

Fourth — The testimony of sundry witnesses, showing that the partnership, although nominally secret, was generally suspected, if not notorious.

In the absence of countervailing proof, this testimony of unim-peached witnesses, intrinsically probable and natural in itself, and concurring with all the outward and admitted facts, must be accepted as •sufficient proof entirely satisfactory to our minds, that Gauthreaux and Merkel were, in the strictest sense, partners inter se as well as with regard to third persons, and interested as such in the profits and losses.

The inference sought to be drawn from the failure of Gauthreaux and Merkel, to testify personally in the case, that their testimony, if given, would not have sustained the partnership, has no support in principle or authority. The presumption from failure to produce the best evidence is confined in its application to documentary evidence in the possession ■or control of one party only, and by him suppressed or withheld. It is not extended to witnesses who may be summoned and examined by either party. It appears in the record that-Merkel, though he did not take the stand, was in court throughout the progress of the trial, and •open to examination by the city.

The law authorizing parties to testify does not compel them to do •so, or Impose any penalty on them for not doing so. When they have proved their case by other competent witnesses, the weight of such evidence' is not impaired by failure to supplement it with their own.

But upon much broader general principles, we should reach the same conclusion in regard to the rights of the liquidator in this case, even if it were established, as contended by the city, that Merkel had no interest in the profits.

It is true that interest in the profits is essential to constitute partnership, and it is also true that partnership must be created by the •consent of the parties. U. C. 2805-11. But these principles apply only tto the partnership as between the parties. In commenting upon the definition oí partnership given by Puffendorf, not substantially different from that of our Civil Code, it was said in the recognized leading case -of Waugh vs. Carver, “ The definition of a partnership, cited from Puf-fendorf, is good, as between the parties themselves, but not with respect of the world at large.” 2 Hy. Blackst. 235. It is perfectly settled, not only by the teachings of all text-writers, but also by the unanimous jurisprudence of courts, that a partnership may be created by construction of law, as to third persons, although neither intended, nor actually ■existing, as between the parties themselves.

See Stoiy and Parsons on Part, passim.

Thus a party who participates in the profits of a business, though he had not consented to be a partner and had not even held himself out •as a partner, will be bound to all persons dealing with the concern, as a secret or dormant partner. Parsons, Part. 30. So a party who has not agreed to be a partner and has no interest in the profits, will yet be held as a partner as to such persons, if he allow his name to be used as a principal in the business. Parsons, Part. 31.

In this case, such a partnership would have been created in the case, supposed, as to the creditors of the concern, of “ W. H. Merkel,” under which Gauthreaux would be bound as a dormant, and Merkel as a nominal partner.

As against such a partnership its creditors are entitled to all the ■ rights and remedies which they would have had, if it had been both an ■actual and ostensible partnership.

They are entitled to be paid out of the stock of the concern by preference over individual creditors. So far as creditors are concerned, such a partnership is to be settled like any other.

Merkel, even if he had been a merely nominal partner, would yet, by reason of his personal liability, have had the right to provoke a settlement for the purpose of compelling the application of the stock and assets of the concern to the liquidation of its debts, in order to lessen and ascertain his ultimate responsibility. It could not be pretended that he would be bound to stand by and see the stock of the concern -absorbed by individual creditors of Gauthreaux to whom he was not liable, and himself left bound for the whole of the partnership debts.

It is, therefore, ordered, adjudged and decreed that the judgment cappealed from be affirmed at appellant’s cost in both courts.


author: Poché J.

text:
    No. 7803.
    Richard Devonshire vs. J. R. A. Gauthreaux, Civil Sheriff, and David Stewart.
    Plaintiff in injunction, claiming as Ms own, property under seizure, not having in his Petition alleged the source of his title, Defendant has the right to show, without having pleaded fraud and simulation, that the title is fraudulent and simulated.
    The purchaser who leaves the property purchased in the hands of the vendor, must, when the same is seized by the creditors of the latter, show by clear proof that the sale is real, in order to destroy the presumption of simulation.
    APPEAL from the Fourth District Court, parish of Orleans. Houstonf J.
    Bentinck Egan for Plaintiff and Appellee.
    T. M. Gill for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché J.

Under a writ of fieri facias issued in the suit of David Stewart vs. John Davie, the sheriff seized six mules which he found in the possession of said Davie in this city. Whereupon, plaintiff in this case, alleging that he was the owner of said mules, sued out an injunction restraining the sheriff and the seizing creditor from proceeding further in the seizure and sale of the property thus levied upon.

Stewart, the defendant, answered, admitting the seizure as alleged in execution of his judgment against John Davie, but denied all other allegations set forth in plaintiff’s petition ; and from a judgment rendered against him he has taken the present appeal.

On the trial plaintiff introduced evidence for the purpose of showing that the property under seizure was part of a purchase made by him from John Davie, on the 5th of June, 1879, consisting of ten mules, four wagons or cotton floats and harness, for the price and sum of thirteen hundred and fifty dollars cash.

And upon defendant attempting to prove that such alleged sale was a fraudulent simulation, as a scheme to remove John Davie’s property from the pursuit of his creditors, plaintiff objected to the introduction of any evidence for such purpose, on the ground that defendant had not alleged fraud and simulation, and that such evidence was therefore inadmissible under the pleadings, and from an adverse ruling he reserved a bill of exceptions.

Plaintiff had merely alleged his ownership of the property seized by the sheriff, without specifying his source or chain of title; and every muniment of his alleged title was, therefore, put at issue by the plea of general denial, under which defendant was certainly entitled to rebut and negative every particle of evidence offered by plaintiff in support of his alleged title; and particularly of his good faith in his alleged purchase.

The evidence having shown that the property under seizure was at the time in the vendor’s possession, the presumption of law was that the alleged sale was a simulation ; and without specially alleging simulation, defendant had the undoubted right to administer proof in support and in vindication of the presumption established in his favor by law.

Had plaintiff, in his petition, alleged the particular source or foundation of his title, by stating, for instance, that it originated in a purchase from John Davie, and the circumstances of such purchase, it would then have been incumbent on the defendant to have alleged fraud or simulation, as a condition precedent to the introduction of evidence in support of the plea.

But a judgment creditor, who pursues in the possession of his debtor property well known to have been previously his, and is met by a third party with the allegation that he is the owner of such property, without alleging the mode of his acquisition, cannot be held to greater precision in his answer than is found in the claimant’s petition.

The lower Court did not err in admitting the evidence objected' to. The evidence is necessarily conflicting, but after carefully perusing all the testimony in the record and weighing all the circumstances of the case, we are satisfied that plaintiff, who claimed to be the owner of movable property found at the time of seizure in the possession of his alleged vendor, and who had, therefore, the burden of proving the reality of his purchase, has failed to make out his case; and we conclude that the whole transaction was a palpable simulation, intending to screen Davie’s property from the pursuit of his creditors, and particularly from the action of the defendant David Stewart.

The salient facts of the case as shown by the record, are:

That John Davie, who had been engaged in the draying business on the levee, principally in the sugar market of this city, nearly all his life, owned and used in his business two mules and four vehicles or drays, and necessary harness, and that his business season began in the early part of November and ended about the middle of February of. each year, lasting about three months and a half.

It appears that on the 4th of June, 1879, process was served or» him in the suit of David Stewart, who, in due course, obtained judgment against him for $445; and that on the day following, he made a written sale of his mules and wagons, which was all the property h® owned in the world, to plaintiff, a deputy clerk in the District Court of the United States.

A few days after, Davie and Devonshire rode together to a plantation some few miles above this city, where the mules were then in pasture, and that Davie then notified the owner of the pasture of his sale to Devonshire, but added that he would continue to be responsible for the cost of the pasturage. It is not even pretended that the purchaser saw the mules at that or any other time.

Sometime in September following the mules were removed from the pasture and brought back to the city and stabled on Davie’s premises by him, who was in uninterrupted possession of them until the date of the seizure. No change in the business of draying, in the purchase of feed, in the line of teamsters, or other incidents, is shown to have been made; but plaintiff contends that Davie was acting as his agent in the control and management. of the business, and was to receive one-third of the profits as his compensation for his services. It also appears that the funds used for the cash payment of the pretended sale, were borrowed by plaintiff from his brother, John Devon-shire, to whom he gave his promissory note, payable in one year ; and the testimony of plaintiff himself shows that he knew nothing of the value of mules, and still less of the details of the business in which he proposed to venture; for which reasons he claims to have retained the services of his friend and vendor to manage and profitably carry on the same for him.

In other words, we are called on by plaintiff to subscribe to the theory, that a deputy clerk of a court, desirous of increasing his income, will undertake a venture in a line of business of which he knows absolutely nothing, borrowing for the purchase of a stock in trade the sum of $1350, and that he finds a convenient friend who has a life-training and experience in that' particular line, and a well-established custom, carrying on business on which he realizes $45 a day, for three months and a half of the year, willing to sell him the implements of his trade as well as its good will and custom, and to take charge of the same as an employee for one-third of the profits.

Common sense and experience in human affairs both repel such a proposition, and force the conclusion that the real object was to defraud the creditors of Davie.

Defendant claims damages on account of the injunction, but we find no evidence in the record on which to rest a judgment on that branch of the case, and we shall reserve his right to claim such damages in a separate action.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed: that plaintiff’s injunction and his demand for the ownership of the property seized by the sheriff in the suit of David Stewart vs. John Davie be rejected, and that he be condemned to pay costs in both courts. Arid it is further ordered that the right to sue for such damages as he may-have suffered by plaintiff’s injunction be reserved to defendant.

Rehearing refused.


text:
    No. 8080.
    State of Louisiana ex rel. Newman, District Attorney, et al., vs. Ben. Hayles.
    This Court will take notice ex proprio motu of the unappealable amount of the matter in dispute and dismiss the -Appeal.
    APPEAL from the Sixth Judicial District Court, parish of West Carroll. Brigham, J.
    D. J. Norwood, E. F. Newman, District Attorney, and J. 0. Egan, Attorney General, for Plaintiffs and Appellants.
    David Todd, T. J. Polk and Spencer & White, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

There is a motion to dismiss the appeal in this case, .on the ground that the transcript was not filed on the return day fixed by the court.

We find it unnecessary to pass upon this motion, for we are met at the threshold with a graver question touching our jurisdiction of this case, which we must notice proprio motu.

The case is one of contestation for the office of Police Juror for the parish of West Carroll, under the intrusion act.

The appellate jurisdiction of this Courtis limited, by the express terms of the Constitution, to cases where the matter in dispute exceeds one thousand dollars, exclusive of interest; to suits for divorce and separation from bed and board ; to cases where the constitutionality or legality of any tax, toll or imposts, or fine, forfeiture or penalty imposed by a municipal corporation is in contestation, without regard to amount, and to questions of law in certain criminal cases. This is the full extent of our appellate jurisdiction.

Does the case at bar fall within the limits prescribed ?

The personal interests of the relator must be measured by the amount of the salary involved in the contest together with the damage claimed in the petition. These constitute the matter in dispute between these litigants.

The salary or per diem of a police juror, for his entire term of office, is far below the prescribed amount; and the damage claimed, which is only one hundred dollars, does not raise it to the sum required to invest this Court with j urisdiction.

It has been suggested, however, that the nature of this case, on account of its involving an important public interest, and the right to an office in which the people of an entire parish are interested, is sufficient to give j urisdiction.

We cannot recognize this doctrine. The matter in dispute — the language of the Constitution — means, according to the plainest rule of construction, the pecuniary interest involved ; and the question of jurisdiction must be tested and determined by the money value of what is claimed in the petition. The jurisdiction of this Court is limited and defined in precise terms by the Constitution — the instrument that created it — and is not to be enlarged or extended by implication ; and we cannot go beyond these express limitations without usurpation.

Besides the simple claim of one hundred dollars made in the petition for damages, there is no allegation therein nor evidenced aliunde by affidavit, or otherwise, to show the value of the matter in dispute.

And this is the settled jurisprudence of this Court on a similar question arising under previous constitutions.

Hubert vs. Auvray, 6 L. 598.

State ex rel. Belden vs. Markey, Kaiser et al., 21 A. 743.

State ex rel. Steinberg vs. Lagarde, 21 A. 18 ; State ex rel. Creagh vs. Judge Seventh District Court, 21 A. 108; State ex rel. Creagh vs. Judge Second District Court, 22 A. 49.

We are satisfied from this view of the subject, that this Court is without jurisdiction in the case ratione materice.

That we are bound to notice this fact in our motion and act upon it is not an open question.

It is, therefore, ordered that the appeal be dismissed at the appellants’ costs.


text:
    No. 7641.
    State of Louisiana vs. Louisiana Savings Bank and Safe Deposit Company.
    Tie law which exempts Defendant's capital from taxation, is unconstitutional. 31 An. 82G, affirmed.
    The Board of Assessors, under Act Ko. 12 of 1875, had the power to make assessments for previous years.
    In the absence of proof to the contrary, the Assessors must he presumed to have performed their duty.
    j^PPEAL from the Fifth District Court, parish of Orleans. Bogers, J.
    J. C. Egan, Attorney General, for the State, Plaintiff and Appellee.
    Thos. J. Semmes and Chas. S. Rice for Defendant and Appellant.
    First — A valid assessment is the basis of taxation.

      Second — Act No. 12 of 1875 conferred no authority on the Board of Assessors to make assessments for years prior to the passage of that act.
    Third — The assessment of the property of defendant, being upon a different basis from that of any other property in the State, of the same class, is not a lawful assessment.
    Fourth — The defendant ought not to pay tax on its entire capital, and on real estate which was paid for out of its capital. Double taxation is not permissible.
   The opinion of the Court was delivered by

Fenner, J.

The State sues to recover of defendant taxes on its capital stock for the years 1871,1872,1873,1874,1875 and 1876.

The defenses urged by defendant are:

First. That the company, by its charter, is exempt from taxation, except on its real estate.

The nullity of this exemption has been declared by this Court in many cases.

City of N. O. vs. La. Savings Bank and Safe Deposit Co., 31 A. 826, and authorities there cited.

Second. That the assessments on which the taxes claimed are based is illegal and unwarranted by law.

The special ground on which this objection is rested, is that the assessment was made by the Board of Assessors, constituted under Act No. 12 of 1875, and that said act conferred upon them no power to make assessments for previous years. The first section of the act expressly conferred upon the Board therein constituted “ the powers, duties and responsibilities heretofore prescribed by law.” Amongst these were the power and duty prescribed by section 3262 of the Revised Statutes, reenacted in section 28 of Revenue Act of 1871, providing that “if property shall be omitted in the assessment of one or more years, when-discovered it shall be assessed for the years during which it was omitted, without interest, and also for the current year, by the person authorized to make the assessment.” ' We are not advised of any repeal of this law. Similar enactments exist in most of the States, and the settled doctrine seems to be that “the legislative authority given to tax the property for the omitted years is not exhausted by the failure of the party or the assessor to place it on the roll, and such assessments are valid.”

Burroughs on Taxation, g 93.

Blackwell on Tax Titles, p. 164.

Cases might arise in which particular circumstances might prevent or limit the enforcement of such assessments, but no such circumstances are suggested by either the evidence or the argument in this case.

Third. That, “ i£ otherwise lawful, the assessment violates art. 118 of the Constitution of 1868, not being equal and uniform, it appearing that no other corporation of the kind in the city of New Orleans is assessed for the full nominal amount of its capital.”

In support of this, evidence is offered to show that, while the capital stock of defendant is valued at the exact amount of its nominal capital, as fixed in its charter, the stock of sundry other corporations, situated in like case, is valued at a less amount than their nominal capital.

In the absence of proof to the contrary, the assessors'must be presumed to have performed their duty. 31 A. 828. It was their duty to assess the capital or capital stock of these corporations at its value, and not at its mere nominal amount. Rev. Act of 1871, see. 35. Their assessment of the capital stock of defendant at its nominal amount must be treated as a valuation of the stock at par, and the assessment of the stock of other corporations at less than par must be treated as a like valuation by the assessors, according to their judgment. There is nothing in the evidence to show that the assessors arbitrarily put down the capital of defendant at its nominal amount without valuation, or that they applied a different rule of valuation to it from what was applied to the capital of other corporations. There is not even any evidence to show that the assessment was not correct in the case of either the.defendant or of the other corporations. It follows, therefore, that even if the objection taken by defendant could be otherwise sustained (as to which it is not necessary for us to express an opinion here), it has no sufficient foundation of fact to rest on.

Fourth. That the real estate of defendant was paid for out of its capital, and, being separately taxed, the assessment of its capital for its full amount is, to that extent, double taxation.

This objection is answered by the fact that it is not. shown in the evidence that, the real estate was not deducted by the assessors, as it was their duty to do, in arriving at their valuation of defendant’s capital for taxation as such. To assume that they did not do so, would be-to assume, without proof, that they did not perform their duty. If defendant is entitled to any relief against the .taxes claimed, it has entirely failed to support it by proper proofs. Particularly should it be held to full proof in a case, like the present, where it has neglected all of its own duties under the law, and invokes a relaxation of the general rule which shuts out objections to assessments after the expiration of certain delays allowed by law.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cost.