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1. Their right of recovery against the bank is predicated on its alleged violation of a contract of deposit. But according to plaintiffs' own evidence it appears conclusively that there was no contract of deposit between the bank and Fisk, in his own right. Avowedly, the box which is the subject-matter of this litigation bore the name, and was deposited as the property, of Anne Conery, 157 Camp street, New Orleans, and the card, which evidenced the contract, entitled the bearer thereof to call for, and to obtain possession of, the box deposited in the bank in the name of Anne Conery. And the record shows that Fisk always obtained the box on presentation, and as the bearer, of the card in question, which was always kept by the bank until the box was returned.

Now, it is conceded that the last and final delivery of the box was obtained by the bearer, and on presentation of that identical card. Wherein, then, did the bank violate its contract touching that box? The avowed object of the device or scheme was to hold out Anne Conery as the true owner of the box and contents, so as to screen either from the reach and action of the divorced wife. And if it had happened that in any proceeding by the wife the bank had delivered the box as the property of Fisk, how clamorous would Anne Conery, instigated by him, have been in holding the bank responsible for a violation of its contract by an illegal and wrongful delivery of the box? Article 2949 of the Civil Code, which plaintiffs invoke as fixing the liability of the bank reads as follows: "The depository must restore the thing deposited only to him who delivered it, or in whose name the deposit was made, or who was pointed out to receive it." This is precisely what was done by the bank in the premises. The box had been deposited in the name of "Anne Conery,” and the party pointed out to receive it was the bearer of the card issued in her name. As often as Fisk obtained possession of the box,-and the record shows it occurred almost every day for four years,-it was in that capacity that he obtained it, the same means which Ringrose used in December, 1874. The fact that between Fisk and Anne Conery the box was truly and exclusively the property of Fisk, and that in point of fact he always held, and constantly carried on his person, the card which evidenced the contract of deposit, was of no concern to the bank, and cannot alter, vary, modify, or increase the responsibility of the bank touching the box, which it was bound to deliver to the bearer on presentation of the card. The bank therefore stands entirely exonerated from any liability in the premises. That conclusion is practically conceded by.one of the plaintiffs, who says in one part of his testimony: "As far as the bank is concerned, I did not think there was any conspiracy. I don't see why there should be."

2. The theory as to the liability of the defendant Washburn is predicated on three circumstances: (1) That the box marked "Anne Conery," and numbered 33, alleged to contain $100,000 in money and values, was found in his possession, some 10 years later, when it was returned and delivered by him to one of the plaintiffs herein. (2) That a short time after the death of Fisk he converted city gold bonds, of the kind alleged to be in the box, amounting to some $35,000, into premium bonds. (3) That as executor, and as the agent of the executrix, he entirely failed to make any effort, or to institute any search, for the recovery of the box, the previous existence and the missing of which had been made known to him at the time.

Before entering into a discussion of these three grounds of suspicion, and which at most amount to nothing else, it is but fair and proper to premise here the declaration of the entire failure of plaintiffs to have shown that Fisk had possession, at the time of his death, of money or securities, contained in the box in question, or anywhere else, in an amount equal to or approximating the sum which plaintiffs claina in this suit. It would serve no useful purpose, either in justice or in jurisprudence, to analyze in this opinion the testimony which bears on this point. It is sufficient to announce our conclusions on the

subject, and it is better to omit the publication of our views as to the insufficiency of any part of the testimony, or touching the veracity vel non of any of the witnesses in the case. But conceding, arguendo, that there was such a box containing the great values which plaintiffs describe, we find no reason in the record to justify the assertion that Washburn had any knowledge thereof, or any connection therewith.

First. The evidence shows that the trunk and tin boxes which Washburn turned over to F. M. Fisk, Jr., in 1884, had been brought to his place of business some 10 years before, when he represented the executrix, and that neither of them contained the values in question; and on the point that "Box 33," described by some of the witnesses as containing Fisk's treasures, was handled by Washburn, the evidence is not satisfactory that the identical box had ever been in Washburn's possession. Can it be supposed for one moment that he would at any time be so stupid as to turn over to one of the heirs the identical box which he had participated in despoiling 10 years before, and for which diligent search had been instituted, including the arrest of Anne Conery, and in the absence of any demand for the same? Much more natural, and much easier and safer, would it have been to have destroyed it, or to have made it otherwise disappear forever.

Second. The record shows Washburn to be, and to have been at the time, a man of means, and to have then speculated in city securities, which he first converted into gold bonds, and subsequently into premium bonds. There is nothing in the coincidence that he converted his bonds at about the time that the succession of Fisk was in course of settlement.

Third. As executor, or as the agent of the executrix, he was under no obligation to do more than to administer the property which was inventoried in the succession; and it was no part of his duty to institute detective researches for any missing money or paper, unless some tangible clue had been furnished him by the heirs or other interested parties. This is hardly as much as a reasonable ground of suspicion.

3. In so far as Ringrose is connected with the alleged appropriation of money, we refer to what was said above as to the absence of legal or satisfactory proof of the existence of the money at all, as the property of Fisk, and this is the essential prerequisite to any recovery against him. It appears from the record that his only connection with the succession, or with any property belonging thereto or connected therewith, was as the messenger or friend of Anne Conery, at whose request he called for and withdrew a certain bank-box, which had been deposited at the bank in her name; but the evidence entirely fails to show that the particular box in question contained any money or other valuables belonging to Fisk or anybody else. The box was claimed as her property by Anne Conery, who subsequently pledged its contents, some silver-ware, and other like effects,-to secure a loan of money. At her request he placed the box in the custody of Father Allen, a near neighbor, from whom he brought it back to Anne Conery, a few days later. But we repeat, the record is barren of evidence showing that the box contained money or securities such as plaintiffs' claim covers. We have carefully weighed all the testimony on this point, and we find no grounds to justify even a suspicion that the defendant Ringrose committed the crime of larceny, which is practically the substance of the charge herein made against him.

We therefore conclude with the district judge that the defense is clearly made out. Under these views we see no necessity to discuss the plea of prescription.

Judgment affirmed.

WEBB v. HоTH et al.

(Supreme Court of Louisiana. December 17, 1888.)

APPEAL JURISDICTIONAL AMOUNT-AFFIDAVIT.

Courts look first to the record in order to determine the question of appellate jurisdiction. It is only when the record fails to fix the amount in dispute that an appeal can be sustained by affidavits fixing such amount. But when the pleadings sustain a specific allegation stating definitely the value of the object in dispute, and when the record contains nothing in contradiction of such allegation, it will be held as conclusive on the question of jurisdiction, and cannot be contradicted for the first time by ex parte affidavits in this court.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; RIGITOR, Judge. Suit by E. P. Webb against Jacob Hoth et al. Defendant appeals. B. K. Miller, for appellant. H. C. Leake, F. Kernan, and Claiborne & Spearing, for appellees.

ON MOTION TO DISMISS.

FENNER, J. The petition in this suit contained the following specific allegation: "Petitioner further shows that the amount in dispute herein, the value of the property and of the rents of which he has been deprived, is the sum of twelve hundred dollars." There is not a word in the pleadings or evidence in the court below to contradict the allegation, or tending in any manner to show that the amount in dispute exceeds the sum stated in the petition. On the contrary, whatever does there appear, viz., the prices at which the property was sold at different times, the amounts of the taxes due, and the testimony as to the rents, all go to support the allegation. The cast defendant has, nevertheless, taken his appeal to this court, and has filed affidavits that the value of the property involved is $2,100. The appellant has filed counter-affidavits that the value does not exceed $1,000, and has also filed official certificates showing that the property has been assessed during the present and several past years at $900. Courts ordinarily look to the record in order to determine jurisdictional questions. Where the pleadings set forth the amount in dispute, and the record is barren of evidence to contradict the allegation, it will generally be taken as decisive of jurisdiction. It has been held that where the record is silent as to the value in dispute, an appeal to this court may be sustained by affidavits filed here establishing our jurisdiction; and so it has been held that, on a mere allegation that the value of the object in dispute exceeds or is not less than a sum under our jurisdictional limit, affidavits may be received to show that the excess is sufficient to sustain our jurisdiction. Testart v. Belot, 32 La. Ann. 603; Trimble v. Pleasant, 35 La. Ann. 874; Farquhar v. Iles, 39 La. Ann. 874, 2 South. Rep. 791. But where the pleadings fix the precise value of the disputed object, and this is uncontradicted by affidavits in this court, we are not disposed to establish such a precedent which would, in effect, give to the party cast an option to appeal either to this court or the circuit court at his pleasure; for it is well settled that, if the appeal had been taken to the latter court in this case, the appellee would have been bound by the allegation of his pleading, and could not have contested that court's jurisdiction. If, however, we felt ourselves at liberty to consider the affidavits filed, we could not hold that, taken altogether, they would sustain this appeal. It is therefore ordered that the appeal in this case be dismissed.

Rehearing refused.

AVEGNE v. CITIZENS' BANK of LOUISIANA.

(Supreme Court of Louisiana. January 17, 1889.)

CORPORATIONS-STOCKHOLDERS-CANCELLATION OF SUBSCRIPTION.

An original stockholder who signs without qualification a subscription for new stock to increase the original stock is not entitled to cancellation of his subscription and repetition for the amount paid in, on the ground that all the new shares were not subscribed for. In the absence of any stipulation or limitation to the contrary, his subscription is not contingent or dependent upon the taking of all the shares, but is absolute, and binds him accordingly.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; A. VOORHIES, Judge. W. S. Benedict, for appellant. Henry C. Miller, for appellee.

BERMUDEZ, C. J. The object of this suit is to annul a resolution of the board of directors of the defendant bank increasing the capital, and opening a subscription for the new stock, and to compel restitution of a sum paid by the bank in satisfaction of the new stock subscribed for by him. From a judgment sustaining an exception of no cause of action the plaintiff appeals. It appears that, the bank having sustained losses, the original capital was reduced to $350,000, with which it could not transact its business. It was then resolved that an additional capital of $250,000 should be secured, and a subscription list was opened, with a preference in favor of stockholders. Only $25,000 of the new capital was subscribed for, plaintiff participating to the extent of 25 shares of $100 each. Grounding himself upon the circumstances that the entire 2,500 shares which might have been were not subscribed for, as he expected, the plaintiff contends that his subscription should be annulled, and the money paid refunded him. There is no allegation in the petition that where the plaintiff subscribed he did so on the formal condition that all the shares would be subscribed for. Had he done so, and had the shares not been subscribed for, he would have been entitled to relief. The subscription list is not attached to the petition, and it must be inferred from its absence that the capital does not contain the qualification. Had 2,499 of the shares been subscribed for, and the subscription paid in, could the subscribers, on the sole ground that one share had not been subscribed for, ask the cancellation of their subscription and the return of the money paid over? Surely not, for the plain reason that the subscription, not having been made contingent on a subscription of all the shares, was voluntary, unqualified, and absolute, and not susceptible of any rescission or revocation. The plaintiff is therefore concluded by his spontaneous act in the premises. Judgment affirmed.

COLLIER . MORGAN'S L. & T. R. Co.

(Supreme Court of Louisiana. January 7, 1889.)

1. COSTS-MOTION FOR SECURITY FOR COSTS.

A motion for security for costs, under section 4 of act 136 of 1880, is not an appearance which goes to the merits of the suit. It is not a contestation of any point or matter raised by the action, as set forth in the petition. It is an ex parte proceeding, a matter of right, which the court has no legal discretion to refuse, and the purpose of which is to relieve the defendant from making any appearance for a contest of any kind until his demand has been satisfied.

2. WRITS-SERVICE ON CORPORATION.

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Service of a petition and citation addressed to a corporation is fatally defective, and bad, when made on one who is not a legal representative of such corporation authorized to receive legal process.

3. SAME-WAIVER.

A citation and service thereof are the foundation of the suit. The same cannot be considered as waived, unless by a formal renunciation, or by an appearance putting at issue some matter presented by the petition, the object of which is intended to be detrimental to the proceeding or to the action.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; RIGHTOR, Judge. Nicholls & Carroll and Honor & Lee, for appellant. Leony & Blair, for appellee.

BERMUDEZ, J. The plaintiff appeals from a judgment dismissing her suit on an exception to the mode of service of the citation issued in the case. It appears that the petition was filed on December 29, 1888; that citation was served on the same day, on one Fay, stated in the sheriff's return to be the secretary of the defendant company; that on the 7th of January following the defendant made a motion solely for the purpose of obtaining security for costs under section 4, act 136, 1880; that on the 12th of January next an exception was filed attacking the correctness and charging the nullity of the sheriff's return, on the ground that the person named therein as that on whom the service of the citation had been made was not, and never has been, the secretary of the company, the consequence being that the sheriff has no authority to make any service on him. On the trial the defendant, as plaintiff in exception, offered to introduce evidence to show the falsity of the return, to the admission of which the plaintiff objected, on the ground that, by appearing in the case to ask a bond for costs, the defendant had estopped itself from assailing the validity of the citation, and of the service thereof, but, the court having overruled the objection, the proof was received, and the plaintiff excepted. It is surely elementary that a citation and service thereof are the foundation of a suit, and that the same cannot be considered as waived unless by formal renunciation, or by an appearance putting at issue some matter presented by the petition, the object of which is detrimental to the proceeding or to the action. The Code of Practice (article 206) distinctly provides: "Citation being the essential ground of all civil actions in ordinary proceedings, the neglect of that formality annuls radically all proceedings had, unless the defendant has voluntarily appeared and answered the demand." McMicken v. Smith, 5 Mart. (N. S.) 429; Rowlett v. Shepherd, 4 La. 91; Collins v. Briggs, 5 La. 256; Dunbar v. Owens, 10 Rob. (La.) 140; Livingston v. Dick, 1 La. Ann. 323; McCan v. The Golden Age, 17 La. Ann. 91; Leblanc v. Perroux, 21 La. Ann. 27; City of New Orleans v. Hall, Id. 438; City of New Orleans v. Walker, 23 La. Ann. 803; Bartlett v. Wheeler, 31 La. Ann. 540; Succession of Baumgarden, 35 La. Ann. 130; Tutorship of Minor Heirs of Byland, 38 La. Ann. 759. This is so much so that it has been held that an appearance for the purpose of setting aside a writ of arrest is not such as can be treated as waiving a defective citation. Jacobs v. Sartorius, 3 La. Ann. 9. In the present instance it does not appear that any such appearance was made by the company. The motion for security for costs is, out of citation, carefully guarded. It distinctly states that the company appears for the sole purpose of demanding the bond for costs. It is a proceeding necessarily ex parte on a subject which required no hearing of the plaintiff, as the right of a defendant of requiring such is peremptory, and the order of court following the motion is one which, as a matter of course, must be granted, and is one about which the judge exercises no legal discretion, save incidentally as to the amount for which the bond is to be furnished. It is an appearance which puts at issue none of the matters set forth in the petition, either as to the jurisdiction, sufficiency of the cause of action averred, res judicata, prescription, or any other defense, the purpose of which would be to have the cause disposed of on account of any averment in the petition. Its object is simply to pre

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