Prudhomme v. Edens, Administrator. the record, that the appeal was taken from the main judgment in the suit, to wit, that on the note sued upon. Having failed to cbtain a suspensive appeal, the defendant took a devolutive one, which enabled the plaintiff to obtain, as he did, a decree ordering the defendant to file a brief statement of his condition as administrator of the estate of Melanie L. Perot. On the merits, we think that article 2112 of the Civil Code is decisive of this case. It is said, however, that before a wife can avoid an obligation contracted for, or conjointly with her husband, it must be made to appear that the debt was contracted by him, and that the onus probandi rests on her, that in point of fact, she signed only as surety of her husband. The reverse of this proposition, we believe, to be the law. The husband, being the head and master of the community, all contracts entered into during the marriage must be considered as made by him, and for his advantage, whether they be made in his own name, or in the names of both the husband and the wife. 2372, 2373. This presumption can be tive proof, that the consideration of the separate benefit and advantage of the wife. In this case, no evidence whatever has been offered to establish this fact, although the pleadings expressly put the plaintiff upon the proof thereof. It is clear, that the acknowledgment made by the wife in the instrument itself, cannot avail the plaintiff; if it could, the protection which the law gives to married women would be nugatory; as good care would be taken, to make them subscribe to declarations of this kind in every contract they may join in under the influence of marital power. Civil Code, arts. 2371, destroyed only by posicontract enured to the It is, therefore, ordered, that the judgment of the Court of Probates of the Parish of Natchitoches be reversed, and that ours be for the defendant, with costs in both courts. Wilson v. Murrell. 6r 68 51 449 BERRY A. WILSON V. JOHN MURRELL, Before a creditor of a succession can proceed against the surety of a curator, executor, APPEAL from the Court of Probates of Claiborne, Peets, J. Tuomey, for the appellant. SIMON, J. The object of this suit is to make the defendant liable, as surety on the bond of Mary Vincent, curatrix of the vacant succession of Josiah Vincent deceased, to pay the amount of a judgment which the plaintiff obtained against said curatrix. An execution issued on the judgment was returned, "no property found." There was judgment below in favor of the plaintiff, and the defendant has appealed. The record shows, that the curatrix, having filed an account of her administration of the succession, that is to say, of the manner in which she had disposed of the funds of the estate, said account was opposed by the plaintiff, who is one of the creditors of the deceased, and who prayed in his opposition, that a certain part of the account should be disregarded, and not homologated; whereupon, a judgment was rendered sustaining the opposition, ordering that the opponent be placed on the tableau for the amount by him claimed, and that the curatrix pay him that amount, with the costs of the proceeding. This judgment is dated the 12th March, 1842. On the 6th of December following, the plaintiff issued an execution against the curatrix in her official capacity, which was returned by the Sheriff, "no property found," whereupon he instituted the present suit, under the 6th section of an act of the Legislature, approved 16th of March, 1842. See page 302, of the laws of that session. The law under which this suit was brought declares: "that the Courts of Probates shall have exclusive cognizance of all suits against sureties on the bonds which they are bound to receive from curators, &c., generally; and no such suit shall be in Wilson v. Murrell. stituted against the security, until the necessary steps shall have been taken to enforce payment against the principal." Now, under arts. 1055, 1056, 1057, of the Code of Practice, if the curator has no funds in his hands, he shall inform the Sheriff, when the judgment is notified to him, that he has not sufficient funds to satisfy it. This appears to have been done in this case since, from the return of the execution, which may be taken here as tantamount to a notification of the judgment, nothing was found to satisfy it. But thereupon, it was the duty of the creditor to make a motion to the court for the purpose mentioned in art. 1056, in order to ascertain the curatrix's condition with regard to the succession; and under art. 1057, she would have been entitled to show, that she had no funds in her hands, or in case of her refusing or neglecting to comply with the requisites of the law, an execution should have been taken out against her personally. These last requisites of the law do not appear to have been fulfilled by the appellee. They were necessary to enforce payment against the curatrix, and being comprised among the steps which the law says must be taken against the principal, we are constrained to require, that before being allowed to proceed against the surety, the plaintiff should bring himself within the meaning and requisites, of the law of 1842. The expressions of that law, that "no such suit shall be instituted against the surety, until the necessary steps shall have been taken to enforce payment against the principal," clearly indicate, that the plaintiff could not institute this action, until after having exhausted all the means which the law gives him to get the money due him from the curatrix. The law is positive, and it is our duty to obey the will of the law maker, whatever change it may operate in the course of our jurisprudence. This suit was, therefore, prematurely instituted, and it must be dismissed. It is, therefore, ordered, that the judgment of the Probate Court be annulled, and reversed; and that ours be for the defendant, as in case of nonsuit, with costs in both courts. Rudy v. Harding and another. 6r 70' 114 1008 SAMUEL RUDY v. JOHN D. HARDING and another. After the dissolution of a partnership no one of the partners can use the social name so as to bind the others. Any authority to do so must be derived from a new contract between the parties, and such a contract is essentially one of mandate. To draw or endorse any bill, or note, in the name of the former partnership, the authority must be express and special. C. C. art. 2966. A partner in an ordinary partnership, may, during its existence, bind his co-partner, if it be shown that the transaction benefitted the partnership. C. C. art. 2845. APPEAL from the District Court of Carroll, Curry, J. Browder, for the plaintiff. Willson, for the appellant. SIMON, J. This action is instituted to recover the balance due on a promissory note, executed at Louisville, in Kentucky, on the 2d of July, 1840, payable six months after date, and subscribed, "Harding & Owen." The note is drawn jointly and severally, for the sum of $1254 90, and is credited on the back by $660 88. The defendants severed in their defence. Owen pleaded the general issue; and Harding, after denying that he ever was in partnership with his co-defendant, denied specially his signature to the note sued on, alleging that his name to the said note is a forgery, &c. His answer concludes by claiming in reconvention, the sum of one hundred dollars damages, for counsel fees in defending the suit, &c. Judgment was rendered below in favor of the defendant Owen, against the plaintiff;* and in favor of the latter against Harding, for the sum of $594. From this judgment, Harding has appealed. The evidence shows, that the instrument sued on purports to be an obligation signed by the partners of a particular partnership, the name whereof was signed by the defendant Owen; that this note is the last of a series of notes given in renewal of an original one, signed jointly by both partners, and given for the • The judgment in favor of Owen was on the ground, that the defendants were liable jointly only, and that Owen had paid his proportion. Rudy v. Harding and another. price of a negro man, purchased by the defendants in Kentucky, for the sum of $800. It appears that the slave was bought for the use of a plantation, then owned in partnership by the defendants, and the note sued on is the last renewal of the original one, and was signed in the handwriting of Owen, alone, long after the dissolution of the partnership. The purchase of the slave was made on the 2d of October, 1835, and the dissolution of the part nership took place in November, 1836. In the mean time, several renewals of the original note had been made by Owen alone, in the name of the firm, to wit: one on the 2d of October, 1836, by a note of $869 20; another on the 2d of January, 1837, by a note for $956 12; and the last on the 2d of July, 1840, by the note sued on. The payment credited on the back of said note, was made by Owen. The question submitted to our solution, is, in our opinion, a very simple one. It is, whether Owen had sufficient authority from his former partner, to renew the original note of the partnership after its dissolution, and to use Harding's name, or the name of the firm, so as to bind his co-defendant. It is first to be remarked, that the original obligation, signed by the two partners, was a joint one; that the note sued on is drawn in solido; and is for a much larger amount than the one in renewal of which it is shown to have been given. The, obligation under consideration cannot, therefore, be said to be the same, or of the same nature as the original one; and in supposing that one partner could, after the dissolution of a particular partnership, settle or transact the unfinished business of the old firm, in the name of all the partners, it is clear, that he cannot bind them in any other manner, than in that in which they were originally bound; unless he obtains from them a special authority to do so. But our jurisprudence is well established that, after the dissolution of a partnership, no one of the partners is at liberty to use the social name so as to bind the others. 4 La. 32. 6 La. 683. 13 La. 197. 15 La. 496. 16 La. 69. 18 La. 333. In the case of Peters & Millard v. Gardère, 8 La. 568, this court said, that the authority must be derived, not from the former relations of the parties as partners, but from a new contract or agreement between them, and such contract is essentially that of mandate. |