PURTON v. amount are creditors of the corporation for $50 per share, and entitled to be NEW ORLEANS reimbursed that amount before a dividend is made. They further allege that AND CARROLL the stock given in payment of real estate was thereby extinguished, and that on COMPANY. other grounds it cannot be taken into consideration at the present time, TON RAILROAD Most of the questions involved in this controversy came before the late Supreme Court, in the case of Millaudon against the same defendants, 3 Rob. 488, and the court there assumed as undoubtedly true that each share of $100 was to bear an equal loss on the final liquidation of the bank, without regard to the amount actually paid in by the various classes of stockholders. The court came to this conclusion by viewing the association of the shareholders, inter se, as a partnership in all respects according to the custom of merchants. We differ from this view of the law of the case, and we hold that incorporated, trading companies are not partnerships according to the legal principles applicable to partnerships formed by the voluntary agreement of individuals, and that the association of the shareholders does not constitute a partnership according to the custom of merchants, nor within the principles of law established respecting joint-traders. Corporations are to be treated with reference to the objects of their creation, and to the express powers with which the legislature may have invested them; to that extent the general law of partnership is superseded by the charter. Gow on Partn. p. 3. Wordsworth, Joint Stock Comp. 29. Law Library, p. 152. The correctness of the opinion of the court in Millaudon's case, therefore, must be tested with reference to the distinctions which bank charters establish between shareholders and ordinary commercial partners. One of the most material differences is that, shareholders are not liable on account of the joint trade in their individual capacities, nor one of them for the debts and engagements contracted by others, but only for their respective shares or interest in the joint stock, and that upon the trade and contracts carried on or made in the corporate character. Another material difference is that the shareholders have at all times the right to transfer their shares; to introduce by so doing new partners in the association, and to withdraw themselves from it. This limitation of responsibility, and this power to transfer stock, do not exist in ordinary partnerships, and create this marked distinction that, while persons trading with an ordinary partnership are uninformed as to the amount of its capital and deal upon the personal credit of the partners, persons dealing with a corporation are uninformed as to the partners, and deal upon the knowledge of the capital and of the mode in which it is to be administered, as acquired by the promulgation of the act of incorporation. When this company began banking operations, they represented themselves to the public as trading upon a capital of $3,000,000, divided in shares of $100 each, to be paid up as required by the business of the bank. It is the fact of so representing themselves which renders the stockholders liable to third persons for the full amount of their subscription, whether called in or not. The argument pressed upon us at bar that, if the obligation to pay the stock in full was not absolute between the shareholders, it could not be absolute as to creditors, misapprehends the nature of the obligation towards creditors, and has no bearing on the question whether the shares are equal or unequal. Another material difference between ordinary partnerships and corporations is to be found in the power conferred upon the officers of the latter to make by-laws; and it is a remarkable fact that the claim of the plaintiffs to be considered as creditors of the corporation under the custom of merchants, origi v. TON RAILROAD nated in one of those by-laws which that custom no where recognises among PURTON commercial partners. The extent of the power given to corporations in au- NEW ORLEANS thorising them to make by-laws is not accurately defined; but the effect of the AND CARROLLpower, when properly exercised, is that the shareholders are bound by a set of provisions and rules beyond those actually contained in the charter, and, as far as they extend, they also supersede the general law of partnership. Wordsworth, Joint Stock Companies, 29. Law Library. no. 256, p. 152. Civil Code, arts. 424, 436. It is contended by the appellants, and it was held in Millaudon's case, that between the shareholders as well as towards third persons, each was n debtor to the association for what he had promised to bring in, that is for the whole amount of his subscription. However this may be in ordinary partnerships under the custom of merchants, the charter of the defendants does not authorise that conclusion. It did not originally fix any definite period within which the whole capital was to be paid in, and we are satisfied that that period cannot be implied from the condition subsequently imposed on the company, to furnish within a given time the whole capital allowed to the branches of the bank. The stock was to be paid at such time and in such proportions as might be required by the president and directors, and the charter did not oblige them to call in the whole of it. Each call was to be made by a by-law; but the time of passing those by-laws, and whether they should be passed at all, was left uncertain, and exclusively depended upon the will of a majority of the board. To guard under all contingencies the interest of the holders of the stock subscribed under the act of 1833, which had been called in, the charter provided that the dividends made by the company should be participated in by the stockholders, in proportion to the amounts by them respectively paid in. This clearly recognises the inequality of shares between the stockholders; and the act of 1839, limiting the capital of the company to the amount actually paid in on the 1st February, 1841, without requiring the payment of the subscription in full, again shows the construction which the legislature put upon the charter. The shareholders, by consenting to make that act a part of the charter, must be considered as having also adopted that construction, and their rights must be tested by it. The time given by the charter for the payment of the subscription was not the term of the obligation, as is the case when ordinary partnerships are formed. The passage of the by-laws making the calls was an uncertain event, and formed a condition which, between the shareholders, suspended the obligation to pay till it was accomplished. Under the general principles of the civil law, as well as by the express provisions of our Code, the dies certus is the term, and the dies incertus is generally the condition, of the obligation. Civil Code, 2044. Mackeldey, Manuel de Droit Romain, p. Conceding that the dies incertus does not in all cases create a condition, and that whether the parties intended to create a condition or only to modify the obligation without making its existence depend upon the event, should be determined, if the case admitted of a reasonable doubt, by applying the rules established for the interpretation of obligations, the construction put upon the charter by the stockholders, as evidenced by their receiving dividends of profits instead of interest, and by their acceptance of the act of 1839, furnishes the safest rule of interpretation. We consider that, between the shareholders, the obligation to pay the balance for their subscription was suspended until the calls were made in the manner prescribed by the charter. PURTON V. TON RAILROAD The stockholders who paid in full, under a by-law, made at their own request, NEW ORLEANS Which authorises them to do so, now insist that they made a loan to the comAND CARROLL pany of $50 per share. If so, it is incumbent upon them to show that a COMPANY. contract of loan was intended and executed. A loan of money may bə gratuitous, and when it is not the consideration of it is interest. In this case a participation in the profits of the company, and not interest, was the consideration stipulated; it was essentially a contract of partnership. C. C. 2772. Under that contract the stockholders who paid in full were in fact to receive the whole profits made upon the additional sum paid, and they now claim to be exempted from contributing to losses on that sum. Had such a stipulation been expressly entered into it would be void, both as it regards the partners and third persons. C. C. 2785. The shareholders who, for their private emolument, paid up the whole amount of their stock, became partners of the company for the amount so paid in. The inequality of the shares was contemplated, authorised and provided for by the charter; and that inequality exists for the purposes of liquidation as well as for the division of profits. There being no errors in the judgment of which the appellants can complain, those assigned by the appellees remain to be considered. We concur with the judge of the first instance, that the first ground of error assigned cannot be noticed in the present controversy. It is true that, under the law of ordinary partnership, partners who hold property of the firm are bound to collate at the time of the final partition of the partnership assets. But this is not a final partition. The company is still in existence; and if, at its final dissolution, any of the stockholders should be bound to collate, they will have it in their power to make the collation in kind by returning the property. The omission of the court below in not decreeing that the dividends of shareholders indebted to the bank for stock loans shall go pro tanto to the extinguishment of their debt, instead of being paid over to them, must have been an oversight under the view taken by the court of the rights of share olders. These loans are in fact debts due by the stock, and, as far as the dividends go, they should have been compensated with them; in that respect the judgment must be amended. We have not noticed the exception as to the want of proper parties, because we consider it to have been properly overruled in the first instance. It is therefore ordered that the judgment in this case be amended, so as to compensate any future dividends coming to stockholders indebted to the defendants on stock loans, with an equal amount of that indebtedness. It is further ordered, that the judgment as amended be affirmed, with costs. GILMORE et al. v. BRENHAM et al. A party may interrogate his adversary in relation to the character of a witness; but such questions only can be put to him as could be propounded to a witness, in whose place the party interrogated must be considered as standing. Where the general character of a witness has not been impeached. but it has only been attempted to do so in reference to particular facts, the party by whom he was introduced cannot sustain his credibility by testimony of general character. The enrolment, and accompanying affidavit made by the master of a steamer, are not con clusive evidence that the person stated in them to be the owner of the steamer is really such. A PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. Mott, Prentiss and Finney, for the plaintiffs, contended that the court correctly refused to admit a copy of the enrollment of the boat, and the affidavit of the master, in evidence, citing 1 Greenleaf on Ev. 542, 533, 494. 3 Kent's Com. 149, 150. 1 Mason's R. 306, 318. 8 Pick. 86. Abbott on Shipping, 63, 66. G. B. Duncan and Roselius, for the appellant. The judgment of the counsel was pronounced by EUSTIS, C. J. This case has already been before this court, and it is substantially stated, so far as relates to the matter at issue between the parties, in Heffernan v. Brenham, 1 Ann. R. 146, decided in June, 1846. In December afterwards, a motion to dismiss the appeal in this and several other cases against the same defendants was disallowed, and they were all remanded to be tried on the opposition of John H. James, residing in Urbanna, in the State of Ohio. 1 Annual Reports, 440. The previous reports of the case sufficiently explain it. The matter at issue in this case appears to have been as to the ownership of John H. James, of three-fourths of the steamer Ambassador. The judge of the Fourth District Court of New Orleans, before whom the case was tried, determined under the evidence that John H. James was not the owner as alleged in his opposition, which was accordingly dismissed, and he has appealed. The argument of counsel has been directed to the evidence, and two bills of excep. tion taken to the admission of evidence on the trial. The first bill of exceptions was taken to the admission of the enrollment and the affidavit of Brenham, the master, which was appended to the bill of exceptions. As the document is before us we can judge of its effect; and, if it would not affect the result of the case, there is no necessity for determining the technical question of its admissibility in evidence under the pleadings. By the second bill of exceptions it appears that, on the trial of the cause the third opponent, John H. James, propounded certain interrogatories to Gilmore, one of the plaintiffs, and among them the following: Have you any knowledge, information, or belief, which would tend to impeach the veracity of Captain J. J. James? If so, state the same. Would you believe the statements of J. J. James under oath? To those interrogatories the plaintiff's objected, on the ground that as they had not impeached the general character of the witness, and only attempted to do so in reference to particular facts, it was incompetent to sustain the character of the witness by testimony of general character. The judge sustained the objection, and refused to direct the plaintiff, Gilmore, to answer the interrogatories, though he was on the witness stand. It appears that J. J. James had been examined as a witness for the third opponent, and was the person to whom the plaintiffs alleged, and were attempting to prove, that the three-fourths interest of the steamer, which was the subject of the controversy, really belonged. He had sworn that he never had any interest in the steamer, but that John H. James was the true and lawful owner of the three-fourths. We are not aware of any objection to the right of a litigant to probe the conscience of his adversary in relation to the character of a witness; but in so doing, we do not understand that any deviation from the ordinary rules of evidence on that subject is authorised. Those questions can only be put to a party which could be put to a witness, in whose place the party interrogated must be considered as standing. The questions proposed could not be put to a witness as the case was then situated before the court, and we think the judge did not err in refusing to allow them to be put as stated in the bill of exceptions. GILMORE ย. BRENHAM. On the evidence adduced the judge of the District Court considered that John H. James was not the owner of the interest in the steamer, which he alleged belonged to him. We do not consider that the fact that, by the enrollment he appeared as the owner, and that Brenham, the master, took the oath stated as to his, James', interest, materially changes the aspect of the case. The issue between the parties was as to the reality-the truth of this apparent ownership. In establishing the fact of ownership, when it really exists, we can scarcely imagine any difficulty to occur. Abundant time and opportunity has been afforded to enable the party to put this matter beyond all question, and notwithstanding this there are facts that surround the case which we consider inconsistent with the ownership being in the opponent, judging them according to the usual standard which govern men in transactions with each other. We cannot resist the conclusion to which so much of the evidence points, that John H. James lent his name and his credit to J. J. James, who, from his embarassments, could not hold property in his own name. The evidence certainly preponderates in favor of the view taken of it by the learned judge who tried the cause, and we do not feel ourselves authorised in disturbing his judgment. Judgment affirmed. UNION BANK OF LOUISIANA v. MARIN. Decrees rendered by consent of parties, decide nothing; they merely authenticate private agreements, and render them executory between the parties. Their effect as to third persons, is that of a transaction made in an authentic form. A decree rendered by consent in a proceeding in which a father and his children are parties, by which a mortgage is created on the property of the former, after an execution issued against him at the suit of a third person had been returned “nulla bona," and his insolvency at the time thereby ascertained, cannot affect the rights of the creditor. The separate creditors of a husband, when alleging neither fraud nor simulation, can exercise no greater rights than he could; and they are bound to show, as he would be, in a contest with his children, which of the effects existing at the death of his wife were brought into marriage by him, or acquired during its continuance by donation or inheritance. C. C. 2371. The legal mortgage of a minor will attach to the individual share of the tutor in the immovables of a succession as soon as he accepts it, subject to the right of priority of the creditors of the succession; and where those immovables are divided in kind, the mortgage will be restricted to his share; but where they have been sold at public auction, the mortgage will attach to the proceeds to the extent of the share of the tutor. Stat. 27 March, 1843, s. 2. A PPEAL from the Fifth District Court of New Orleans, Buchanan, J. Denis, for the plaintiffs. Lewis and Bermudez, for the appellants. The judgment of the court was pronounced by ROST, J. The plaintiffs being judgment creditors of the defendant, took out an execution, which was returned "no property found". The defendant having subsequently inherited one undivided fifth of the succession of Antonio Villalobos, the plaintiffs took an alias writ of fi. fa., and directed the sheriff to seize and advertise for sale the rights and interest of the defendant in said succession. The children of the defendant came into court by way of third opposition, and claimed to be paid by preference out of the proceeds of the *Eustis, C. J., did not sit in this case, being a stockholder in the Union Bank. |