
    Olinde and Husband et al. v. M. Saizan, Administrator.
    "Where several attorneys in fact are employed, they are bound jointly for acts jointly done, and moneys jointly received. O. 0. 2983.
    If a subscribing witness to a paper when called on to prove his handwriting, deny it, experts may be appointed to establish it, by comparing the signature to the paper with the admitted signature of the witness. This is an exception to the general rule that a party cannot contradict his own witness.
    from the District Court of the Parish of Pointe Coupée,
    
      JRobert-son, J. W. H. Oooley, for plaintiffs.
    
      Provosty, for defendant and appellant.
   Buchanan, J.

This record offers a lamentable example of the manner in ■which a settlement of a small succession may be burdened with unnecessary costs. We have here, in a transcript of two hundred pages, the history of three suits, brought by the same heirs, against the same mandataries, to recover the share of the former in an inheritance of which the latter had the management; the two first of which suits were dismissed, and the third resulted in the payment of three hundred and sixty-five dollars, which is fully sustained by the evidence, and from which, nevertheless, both parties have appealed.

Oesain Olinde died in the parish of Poínte Coupée, in the year 183C, leaving a numerous progenjr by two marriages. One of his daughters, Manon or Marie, died shortly after him, leaving four children, who were collectively entitled, by representation, to one-ninth part of their grandfather’s succession. On the 27th April, 1841, Hubert Olinde, as natural tutor of those children, Oelanie and Eugenie, and Baptiste Olinde, one of the sons and co-heirs of the deceased Gesain Olinde, by notarial act before Samuel Bush, notary in Poínte Coupée, constituted and appointed Jean Laurans and Laurent Ghitz their general and special attorneys in fact, for everything necessary for the settlement and liquidation of the estate of their ancestor. Pour days afterwards, the same parties, joined by two other co-heirs of Cesain OlindeJ his daughters, Julie andPelagie, made another procuration, by authentic act before Gustare Delaman, notary in Pointe Coupée, for the same purposes, to the same attorneys in fact. The only difference between the two procurations is that in the last the mandataries were authorized to act either jointly or separately. Under these powers of attorney Laurans and Ghitz acted in a partial partition of the estate of Oesain Olinde, which took place in August, 1841, and in making collections and payments on account of their principals through a series of years. In May, 1845, Julie Olinde revoked her mandate to laurans and Ghitz and constituted Charles Boy dr as her attorney in fact in relation to the inheritance of her grandfather. In the month of Juno following, Poydras, as attor" ney in fact of Julie Olinde, settled with laurans, whom he styles “un des liquidataires de la succession Gésain Olinde,” and gave him a receipt in full for “ ce qui revient á, la dite dame, d’aprés le réglement final de la dite succession.”

In May, I860, Gelanie and Eugenie brought suit against the representatives of Laurans and Ghitz, who were both dead, for their portion of their grandfather’s estate, collected by them under the powers aforesaid, and stating the amount of the same at $8,157 57 — which is the amount stated as their share in the partial partition of August, 1841. In March, 1851, this suit was dismissed on motion of plaintiff’s counsel.

In September, 1851, another suit was brought by Gelanie and Julie against the representatives of Laurans and Ghitz for the same object as the former suit, stating the amount due plaintiffs at $1,464, after giving a credit for sums received on account, of $1,561. This suit was dismissed by judgment of court, in April, 1852, on some exception which we do not find in the record. It is to bo observed that the counsel of plaintiffs in the second suit was Mr. Mahouieau, who did not represent Gelanie Olinde either in the first suit brought in 1850, nor in the present action, but who had an intimate acquaintance with all that has been done in the settlement of Gesain Olinde's succession, and who was a witness in the present case. Indeed it was upon his evidence that the District Judge has fixed the amount due to Gelanie, in the judgment appealed from.

Finally, in September, 1852, Gelanie and Julia Olinde instituted the present action through different counsel from those previously employed, claiming $3,500 as their share in their grandfather’s succession, charged as having been jointly received by Laurans and Ghitz, and without any credit given. A great deal of evidence has been taken, and the result was, as already stated, in June, 1854, a judgment in favor of Gelanie against the succession of Laurans for .$'365 25. --.As to Julia Olinde, there was judgment of dismissal.

,.-T^ie,on,ly fíales before this court are Gelanie Olinde, wife of Gebhart, and Auguste Prbvosty, "administrator of Laurans ; both of whom have appealed.

, The judgment.$ the court below proceeds upon the ground that the attorneys plaintiff are bound jointly for acts jointly dono and moneys jointly.received,.under the powers of attorney in evidence. This is in accor-cla'nce 'with .&rt. -2983 of the Code. There has been an attempt to show that Ohitz was the sole agent of plaintiffs, but, as the Judge below correctly said, this attempt has failed. All sorts of evidence seem to have been offered and received on this point — declarations of Laurans — loose memoranda of Ghitz— mutual receipts passed between them, impressions of witnesses, &c. This has been the subject of a bill of exceptions, which wo would examine now minutely if the objectionable evidence had appeared to have exercised a prejudicial effect upon plaintiffs’ case. But the Judge, in a very carefully prepared opinion, has separated the wheat from the chaff in the evidence, and has thus spared us a good deal of labor.

Another bill of exceptions relates to the admission of evidence to contradict a witness introduced by the party who sought to contradict him. TYc think, under the circumstances, the court did not err. A procuration under private signature (of Julia Olinde to Gharles Poydras) signed with the ordinary mark of the constituent, was attested by those subscribing witnesses, two of whom were living, and in court at the trial. The first of those witnesses, Martin Major, being called, swore that his name at the bottom of the paper as witness, was not written by him. The other subscribing witness was asked whether he did not see the first one sign his name to the paper, and answered affirmatively. He also proved his own handwriting, and the mark of the constituent. The party who had offered both those witnesses, then asked the court to appoint experts to compare the name of Martin Major, at the bottom of the procuration, with admitted signatures of the witness, for the purpose of contradicting him, which tho court ordered. This is clearly an exception to the ordinary rule that a party cannot contradict his own witness. Being the subscribing witness of the paper, the party who wished to make use of the paper-as evidence, was bound to produce him, if he could be had. But that very necessity is a reason for protecting him against the defective memory, or wilful prevarication of the witness. 1st Greenleaf’s Evid. § 447.

It is needless for us to notice those points 'which have been made in argument, in relation to the interest of the plaintiff, Julie Olinde, as she has not appealed from the judgment dismissing her action.

Judgment affirmed; costs of both courts to be paid by the defendant, Au-guste Prowsty, administrator of the succession of Jean Zaurans.  