
    Commissioners of the Exchange and Banking Company of New Orleans v. Yorke et al.
    A decision of a court of the first instance on an incidental question, not presented by the pleadings, will not be examined on appeal,unless tile evidence on which the court acted is stated in a bill of exceptions, or referred'to as making a part of it
    3?he effect of the answers of a garnishee is- to throw the burthen- of disproving them on the other party.
    When an agent makes a purchase for himself which he was bound to make for his principal, the latter may, if he choose, take the purchase, and the agent will be bound to account to him for it; but this principle cannot prevent an agent from purchasing a judgment against his principal, though to the detriment of the creditors of the latter.
    from the Fifth District Court of New Orleans, Buchanan, T„
    
    
      Carter and Bradford., for the appellant.
    
      L. Peirce and Micou, contrfi.
   The judgment of the court was pronounced by

Eostis, O. .1.

Those cases have already been before us on appeals taken by Henry Florance ; they were remanded for further proceedings, in- December, 1847, and January, 1848, and wiilbe found reported in 2d and 3d Annual,, pp. 995, 155. In the District Court the cases were consolidated and tried together. .1 urigment was rendered against Florance. by which his traverse to the answer of Hanna, garnishee, as wall as his third opposition, in which he claimed priority of payment out. of n certain fund ii> the hands of the sheriff of the parish of Orleans, were both dismissed at his costs. Florance has again appealed. Several bills of exception have been taken to the decisions of the district judge on points raised o-n the trial of the cause.

The first is to the order of the District Court, consolidating these causes. When they were before us on the first appeal they were in such a condition that the ordinary rules of proceeding could not be applied to them, and their consolidation was one step towards restoring them to that order which is necessary to their proper termination. The bill of exceptions to this proceeding is without any ground whatever.

A second bill of exceptions was taken to the decision of the district judge refusing the appellant, a continuance. Tt appears that, ou the 13th November, 1848, the day before the cause was fixed for trial, on the motion of tlie counsel of Florance, it was ordered that Hanna produce in court,on the trial, the letters received by him from the defendant Yorke, and his correspondence with Yorke referred to in his answers to the interrogatories propounded to -him as garnishee. The return of the sheriff showed that ffanna was absent from the city, and there was consequently no service of the rute; and Florance thereupon applied for a continuance.

The district judge refused the continuance because the only correspondence which had taken place between Yorke and Hanna, according to the answers of the latter to -interrogatories, was a letter from the latter to the former inform- , , = , ....... . ing h-im of me purchase of certain judgments, which it did not appear was in Hanna’s possession. The judge did not think that the party in his call for pape-rs, had complied with article 473 of the Code of .Practice, which provides that the order of court to produce papers -or documents on the trial of a cause must-describe such papers or documents. In this opinion of the district judge we concur.

It has been contended in argument that the district judge ought to have granted the appellant a continuance on account of the absence of a witness, on tile affidavit -of the party as to his materiality, &c. It is conceded that the continuance was applied and refused, but no bill of exceptions was taken to the decision of the court. We -concur wit-h the counsel for the appellee, ns to the rule of practice which prevails in this court. We can only review the opinion of the judge when we have his decision before us with the grounds on which it is based, except where the question decided is presented by the pleadings. We have never examined the decision of a court of the first instance on any incidental question raised, without having tlie evidence on which the court acted stated in a bill of exceptions or referred to as making part of it. Such we take to be the only safe-rule in reviewing such decisions in an appellate court.

A bill of exceptions was also taken to the admission in evidence of the answers of the garnishee I-lanna, which had been traversed, and on which issue was thereby made. As the whole case is before us, we shall only consider the effect of those answers in the garnishment, that is as to the matters set tip in the answers of the garnishee. The effect of these answers was to throw the burthen of disproving them on the appellant, which he lias, in our opinion, failed in doing. It, therefore, remains to be considered, what the appellant’s right is, on the evidence as presented on his third opposition to the distribution of the funds in the hands of the sheriff of the parish of Orleans.

Hanna, it appears, had purchased a judgment against Yorke. Florance also bought one, which was recorded subsequently to that purchased by Hanna. On execution on Hanna’s judgment a certain sum was made, -which is now in the hands of the sheriff. Florance filed his third opposition claiming precedence on this sum by virtue of his judgment and execution which had been issued’ on the ground that Hanna had bought the judgment for the benefit of Yorke’ the debtor, and that it is consequently satisfied in law. and that the proceeds of the property sold fell to him ns holding the next judgment and execution. Han_ na filed a general denial to this opposition, and on this issue evidence on both sides was adduced.

We think it proved by the testimony of one of Florance's own witnesses that the judgments purchased by Hanna at the sale of the effects of the Exchange and Banking Company, were bought by him with means obtained on his own credit exclusively, and that by the purchase the judgments became his and not Yorke’s, and were consequently not extinguished thereby.

Yorke was an absconding debtor, and had left with Hanna, who was his brother-in-law, a general power of attorney. He had attempted to compromise with Yorke's creditors, and had remitted money received on his account to him for his support. It is contended by the counsel for the appellant that, holding this power of attorney, he. the agent, could not buy a judgment against his principal to the detriment of Yorke’s creditors. We do not understand the doctrine on which this argument is produced to be extended beyond the well recognized.principle that, when an agent makes a purchase for himself, which he was bound to make for his principal, itrests with the principal, if he ehooses, t0 taiie t|]0 plu.c]las6j an(j {j]0 agent is bound to account to him for it. It was optional with Yorke to take this purchase made by Hanna, if the agency continued at the time of making it; but he was undoubtedly bound to re-emburse Hanna the price which he paid for it. But the object of Florance is to make the money made under execution directly available to his execution as the property of Yorke, the defendant, subject to seizure. Whatever suspicions there are about these transactions, and there is certainly much ground for them, the evidence does not authorize us in subjecting this fund to the execution of the appellant. There is nothing shown to have transpired on the part of Yorke indicating his intention or wish tohaye the benefit of the judgments, nor on the part of Hanna to hold them for his benefit. On the issue made between these parties, we see no reason for reversing the judgment of the District Court.

Judgment affirmed.  