
    
      BORE’S EX’R. vs. QUIERRY’S EX’R.
    
    The record of a former suit, between the parties, is evidence, altho' it was dismissed.
    Appeal from the court of the first district.
    The plaintiff and appellant is the testamentary executor of Mary Bore, a free woman of colour, who is alleged to have been for a number of years in an universal partnership with one Quierry, the defendant and appellee’s testator, and the object of his suit is the recovery of one half of the property left by Quierry.
    The answer states that the plaintiff’s testatrix, in her life time, far from pretending to been in partnership with Quierty, acknowleged herself his servant; that she has been rewarded by a legacy of $ 1500; and that, finally, as she lived in public concubinage with the defendant’s testator, her suit cannot be maintained.
    East’n. District.
    Dec. 1816.
    During the trial, in the district court, the defendant offered in evidence, the record of two suits, instituted by the plaintiff’s testatrix against the present defendant and appellee, for the purpose of shewing that she was the servant of his testator. The plaintiff objected to the introduction of these records in evidence, and being overruled took his bill of exceptions.
    In support of his claim, the plaintiff introduced several witnesses, from the tenor of whose depositions, it appeared that about thirty years ago the plaintiff’s testatrix went to live with the defendant’s testator; she possessed, at that time, 400 dollars in cash and ten or twelve head of cattle, and both exerted their industry in common: he disposed of the proceeds of her property and was heard, at different times, to say that she and him were partners and one half of the property belonged to her.
    But the witnesses state that she was his concubine: that, when she came to live with him, he was settled on a tract of land which he owned, and he held property distinct from hers—that he gave her a receipt for the money which she brought, which he renewed ten or fifteen years afterwards and was seen so late as two years before his death; that she also held other property, in her own right, viz. a negro woman named Therese, whom he had bought and conveyed to her.
    The records introduced as evidente by the defendant, and objected to by the plaintiff, were those of two suits instituted by the testatrix of the former against the latter to recover her wages, as a servant during all the time which she lived with his testator, and those of two female slaves of hers. The first suit was dismissed as premature, and the second was withdrawn, since his death by his executor, the present plaintiff, “in consequence of an agree- “ment between the parties, and whereby it was “understood, that, upon the discontinuance of “said suit, the defendant should pay to the “plaintiff a legacy of 1500 dollars, left to his “testatrix by his testator, which was accord"ingly paid."
    The defendant produced a witness, who declared that he was a neighbour, and acquaintance of Quierry, during twenty years, and knew nothing of the alleged partnership.
    There was judgment for the defendant.
    
      Carleton for the plaintiff.
    It is a well established principle in law, that whenever a cause is dropped for want of prosecution, or, goes off on any other point than its merits, the judgment rendered thereon, or the allegations of the parties in the pleadings, cannot be read in evidence, or converted to their prejudice in a subsequent suit. A party often suffers a nonsuit, or discontinues his cause, when he discovers the grounds he had taken were untenable. A client speaks and acts only through his attorney, who may misconceive the nature and form of his action. A client may himself state his case erroneously, or new matter may come to light after the suit is begun. Shall he nevertheless persevere in his error? May he not rather discontinue his cause and commence another, wherein the record of the first cannot be read in evidence? Such is known to be the practice in courts of justice in every country, and until now, it is believed no attempt was ever made to introduce in evidence the record in a cause which was never decided upon its merits. 4 Bac. Abr. 107. 3 id. 679. 1 Chit. pleas and pl. 195. Har. Ch. prac. 254. Peake’s ev. note.
    
    
      These authorities which apply to the cases of nonsuit and dismissal, receive greater strength in discontinuances, where the party voluntarily abandons his cause. In a nonsuit, the law implies no such cause of action as the party alleged; in a discontinuance the party anticipates the law, and confesses his error himself. The same doctrine is also found in the Spanish laws.—There a party may retract a confession which he or his attorney may have erroneously made, even in the progress of the same cause, provided he shew his error, before final judgment. Part. 3, 13, 5 and 6, and in Part. 3, 12, 9, it is expressly said, that if a plaintiff withdraw his suit from court, after the defendant has answered, nothing alleged by such defendant can be raised against him in a subsequent suit, brought by the plaintiff for the same cause of action. Had the defendant therefore confessed the debt in the first suit he might deny it in the second: this rule, if it be a just one, will surely afford the same protection to the plaintiff.
    The testatrix herself was unknown to her attornies. Her case was represented to them by her friend. They took such grounds in their petition as they thought would enable them to recover. She was probably never called the servant of Querry, but by her attornies, and the proof in the present case in which she is stiled "mistress” and “partner,” shows how her attornies either misconceived her cause of action or were uninformed of its real nature.
    If notwithstanding this view of the subject the court should still think the defendant might avail himself of the declaration of the plaintiff, in a former suit which was never tried, the plaintiff may undoubtedly avail himself of the declaration of the defendant. The court will not afford to one party a weapon of attack which it denies to the other in defence. If the testatrix called herself the servant of Quierry, the defendant denied it; which puts the matter at large. Nay, the defendant further declares that the testatrix lived in community of revenues with his testator, thus laying the foundation of the present action. If the court believe the defendant, they have only to give judgment for the plaintiff.
    It is said the second suit was discontinued in order to receive the legacy of 1500 dolls. It's impossible to construe this into an abandonment of the claim set up by the plaintiff in the present suit. He knew the legacy was secure to him and that he could enforce the payment of U unconditionally. The suit was discontinued solely with a view to institute one in the present form. The very object of the discontinuance was to enforce, not to abandon the present claim, and without an express relinquishment of a right to so considerable real estate the court can never imply one.
    The contract of partnership and every material circumstance relating thereto, having taken place long before the adoption of the civil code, in 1808, the Spanish and civil laws only can apply to this case. These laws recognize but two sorts of partnership, universal and particular. Inst. 3, 26, §. 1. preamble—Part. 3, 10, 3—Cur. phil. com. ter. c. 3, nos. 5. 6.
    In the universal partnership all goods and effects, both present and future, become immediately the joint property of the contracting parties.ff. 17, 2, 1, § 1—Cur. phil. com. ter. c. 3. nos. 6,7, and the authorities there cited.
    If there be no express agreement about the profits, they are to be equally divided. Inst. 3. 26. § 1—ff. 17, 2,7, §. 2—Cur. phil. com. ter. c. 3. no. 9—Part. 5, 10, 4, 7.
    And this whether the acquisition be made in the joint names of the parties, or one of them only—Cur. phil. com. ter. c. 3. no. 7—Poth. trait, de. soc. nos. 32, 33, 35, 46.
    And though ad acquisition he made in the name of one of the parties, it is immediately delivered to the other by construction of law, 
      ff. 17, 2, 2, quia licet specialiter traditio non interveniat, tacite tamen creditur intervenire. Also, Part. 3. 28, 47.
    Again under the Spanish and Roman laws it was not necessary that the contract of partnership should be in writing. Societatem coire et re, et verbis, et per nuncium posse nos, dubium non est. ff. 17, 2, 4, 4. Under the Romans the social contract or partnership, needed no other solemnity, but the consent of the parties, without any writing at all, Watson on part. 4. Barbeyrac in his notes on Puffendorf, observes that "a partnership is contracted sometimes silently.” The same doctrine is laid down in the partidas. E facesse la compania con consentimiento, i con ortogamiento de los que quieren ser companeros. Part, 5, 10, 1. So in the Cur. phil. com. ter. c. 3. no. 1. La compania se contrae expressamente por palabras, o tacita, o calladamente sin ellas, por hacer acto que la induzga, o por usar de ella, como si se huviere hecha, respecto de contraerse por el consentimiento de los que hacen.
    
    The testimony offered by the plaintiff is not weakened by one opposing fact. The only witness examined on the part of the defendant declares negatively, that he did not know of any partnership. It is therefore conceived that the existence of the partnership is proved beyond dispute. It would be impossible to persuade the mind of the truth of any fact, if it doubted after such testimony. The witness are aged, respectable and personally known to the court. They could have had no interest in deceiving, as it is pretended they had.
    
      Seghers, for the defendant.
    The district court did not err in admitting as evidence, the records of the two suits instituted by the plaintiff’s testatrix. These two suits disclosed two facts, which cannot exist with that alleged in the petition, in the present case. The testatrix claimed charges for her labour and for that of her slaves; therefore, it is clear that in her judgment she had not placed her industry in a partnership with the defendant’s testator; she also held her property separate from him, there was therefore no universal partnership, as is alleged in the petition.
    The confession or acknowledgment of facts made by the parties, in their counsel and their pleadings, are evidence and must be admitted as such in any action against them. 2 Pothier, Obl. n. 797.
    The evidence offered by the plaintiff does not support his claim. No part of it shews that the alleged universal partnership existed. It shews on the contrary that each party held property in his own tight, and to his own use, independently of the other. If no universal partnership existed, the plaintiff cannot recover on a special one, because none such is alleged, and if any such was, we would yet seek in vain for a single tittle of evidence on the record, to support it.
    Further, the evidence, offered by the plaintiff himself, establishes a fact which alone suffices to repel his claim, viz. the concubinage of his testatrix with the defendant’s testator. Their union was an immoral one, and could not give rise to any action. Partida 5, 11, 28. Code Civil, 264. art. 33. And if the advantage which is claimed, viz. a participation in the defendant’s testator's profit, was proven to have been actually promised, the court would see, in the engagement taken by the man, nothing else but an intention to cover a donation, on an universal title, to the woman, which the law reproves. Code Civil, 210 & 212, art. 10 & 17.
   Derbigny, J.

delivered the opinion of the court. It has been contended generally that the record of a suit, in which the plaintiff has been non-suited, cannot be produced against him, either for the purpose of estopping him, or as evidence of facts by him acknowledged.

We do not indeed believe that the doctrine of estoppel, as known to our laws, extends to the length which the defendant contends for. In order that a demand may operate as a bar against another, it must appear, that, by the first, all rights to the second have been waved. But, altho’ it must be confessed, that it is not easy to reconcile a demand of wages as a servant, with a claim as a partner, the one does not of necessity-exclude the other. Actions, contrary to one another, altho’ they cannot be united in a libel, may be separately instituted quando sunt talia jura, quœ non tolluntur electione, says Lopez, n. 1. Part. 3, 10, 7.

But the plaintiff has not only contended that those records could not be introduced, in support of the defendant’s plea in bar, he has also attempted to shew, that they could not he produced as evidence of facts acknowledged by his testatrix. To establish this point he has quoted from Part. 3, 22, 9. a passage which goes to say that after a defendant has obtained the dismissal of a suit, owing to the absence or neglect of the plaintiff, it shall not be permitted to the plaintiff thereafter to avail himself, in a new action, of any thing written on the first, because the defendant has been liberated of that by the judgment of dismissal. But, this provision, denying to the plaintiff the right of producing in such a case the pleadings of the first suit, is certainly not applicable to the defendant.

We do not presume that the plaintiff further intended to deny generally, that the acknowlegment of parties, by their attornies in the pleadings are evidence. "The confessions or "acknowledgments," says Pothier, "which the "parties make in several stages of a suit, by "their instruments of writing or pleas, may also "pass for a sort of judicial confession, when "the attorney has authority from his client to "make them, and he is presumed to have such "an authority as long as he is not disavowed.” 2 Pothier’s Obl. n. In Gilbert's law of evidence "chancery is evidence against the complainant, "for the allegations of every man’s bill shall "be supposed to be true, nor shall it be pre "ferred by the counsel or solicitor, without the "privity of the party, and therefore it is evidence "as to the confession or admission of the truth "of any fact by the party himself.” In this particular instance, the soundness of that doctrine is manifest: for here is the disclosure of an all-important fact, the proof of which was perhaps in the power of the plaintiff alone, to wit: her possessing two slaves in her own right, during all the time of her residence with Quierry.

Upon the whole, we think that the records offered in evidence by the defendant, were properly admitted, so far as his object was to establish facts disclosed by the plaintiff.

We have, in support of the partnership, acknowledgments of Quierry, made, it is not said at what time, and in opposition to them his own acts, and the acknowledgment of Martha Bore. Independently of her own avowal, that she was only his servant, we have it in evidence front her own mouth, and that of one of her witnesses, that he possessed land in his own right, and she, two slaves in hers. An universal partnership between them is then out of question; and if there was a, particular one, nothing shews in what it did exist.

We are therefore of opinion, that the plaintiff’s claim is not supported by the evidence: this will preclude the necessity of inquiring here, how far these can exist in the state of any such thing as a partnership between a man and his concubine particularly between a white man and a free woman of color, living together in concubinage, and how far such a contract may come within the provisions of the Part. 5, 11, 28, and the 33d art. of our Code 264, which declares void all contracts, the cause of which is contrary to good morals and public order.

It becomes also unnecessary to decide whether the plaintiff could bring this, or any other action, against the estate of Quierry, after having consented to withdraw the suit for wages, for the purpose of receiving the legacy left to his testatrix: altho’ it may be proper to observe, we were inclined to view this agreement as a compromise intended to put an end to his claim.

It is ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

GENERAL RULE.

December, 3, 1816.

It is ordered that candidates for admission to the bar, who have taken a degree in one of the incorporated seminaries in the United States, or their territories, may he examined, on shewing that they have studied two years under the direction of one of the attorneys duly, admitted in this State.  