
    No. 5644.
    Carrie A. Drake and Husband v. Thos. P. Hays et als.
    Defendants, who were members ol the laie commercial firm of Cornwell & Hays, refuse pay- • ment of a note of said firm, which was executed to plaintiff, separate in property from her husband, before said separation had taken place. Previous to the existence of the firm of Cornwell & Hays, there existed the firm of L. S. Cornwell & Co., which owed plaintiff borrowed money to the amount of the note in suit. In liquidation of this debt of L. S. Cornwell & Co., the liquidating partner of that firm gave plaintiff the note sued on, having previously consigned to the factors of said Cornwell & Hays forty-four halos of cotton belonging to said firm of L. S. Cornwell & Co. in liquidation. The proceeds of this cotton, exceeding the amount of the note, passed to the credit of Cornwell & Hays on the hooks of their factors. Thus, the liquidating partner of D. S. Cornwell & Co., instead of paying over to plaintiff the sum which was duo to her, passed that sum, the proceeds of the cotton, to the credit of Cornwell & Hays, and executed to plaintiff the note of llio last named firm, of which he was a partner. Therefore the firm of Cornwell & Hays received a valuable consideration for tbe note and plaintiffs’ claim is established.
    It is shown that the money loaned by plaintiff was her paraphernal property. Whether or not the husband was a member of either firm, or both the aforementioned firms, is immaterial.
    The plaintiff is not bound by statements made out of her presence by the partners at the partition of the partnership of Cornwell & Hays.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.
    
      W. £. Speneer and L. V. Reeves, Semmes & Mott, for Thomas P. Hays, defendant and appellee. Drake <& Garnett, for Mrs. Hays, defendant and appellee. Steele Olinton & Farrar, for plaintiff and appellant.
   Wyly, J.

Carrie A. Drake, a married woman, separated in property from her husband, brings this suit against the defendants, who were members of the late commercial ñrm of Cornwell & Hays, on the note of said firm for $3000, which was executed to plaintiff before she obtained said separation of property.

The court rejected the demand, and plaintiff appeals.

Previous to the existence of the firm of Cornwell & Hays there existed the firm of L. S. Cornwell & Co., which owed plaintiff borrowed money to the amount of the note in suit.

In liquidation of this debt L. S. Cornwell, the liquidating partner of the firm of L. S. Cornwell & Co., gave plaintiff the note sued on, and having previously consigned to the factors of said Cornwell & Hays forty-four bales of cotton belonging to said firm of L. S. Cornwell & Co. in liquidation. The proceeds of this cotton, exceeding the amount of the note, passed to the credit of Cornwell & Hays on the books of their factors. This fact, proved by Cornwell, the partner who executed the note in suit, stands uncontradicted.

It appears, therefore, that the liquidating partner of L. S. Cornwell & Co., instead of paying over to plaintiff the $3000 which was due her, passed that sum, the proceeds of the cotton, to the credit of Cornwell & Hays ana executed to plaintiff the note of the last-named firm, of which he was a partner. The firm of Cornwell & Hays received therefore a valuable consideration for the note.

It is shown that the money loaned by plaintiff as before stated was her paraphernal property administered by herself.

Whether or not her husband was a member of either or both the aforenamed firms is immaterial. So, also, the statement of Cornwell made out of her presence in regard to the note in suit.

She was not present and is not bound by statements made by the partners at the partition of the partnership of Cornwell & Hays.

It is therefore ordered that the judgment herein be annulled, and that there be judgment against the defendants in solido for three thousand dollars, with legal interest thereon from first November, 1870, and costs of both courts.

Rehearing refused.  