
    B. Cestia & J. Seignouret v. Ferrandon & Cessac.
    Proceedings vroro institutdd against defendants, who wore non-rosidonts, or absent from tho Stato; a curator ad hoc was appointod to represent tho absent'dofondants. An exception was filed in the causo, sotting up that the defendants liad a duly appointod attorney in fact, rosiding in tho Stato, who was empoworod to ropresont thorn, and that ho should havo beon citod to defend the action. On the trial of tho oxcoption, it appoarod in ovidonco that tho attorney in fact had refused to accept tho mandato, but afterwards substituted anothor person to act for dofondants :
    
      ZTrld .- — That tho oxcoption was not woll taken; that the attorney in fact, who had refused to accopt tho mandato himself, could not substitute another porson as attorney under tho mandato; that tho appointment of tho curator ad hoc was regular and correct.
    APPEAL from tho Sixth District Court of Now Orleans,
    
      Buplantier, J. G. Roselius and A. Philips, for plaintiffs and appellants. J. L. Tissot, for defondants and appellees.
   Tadiapeero, J.

In May, 1859, the plaintiffs, as partners in commendam,. entered into a commercial partnership with tho defendants, under the name and stylo of Forrandon k Cessac. Tho association was engaged in tho dry goods business, in New Orleans, and, by its limitation, was to terminate at the end of the year 1865. It appears tliat the partnership became embarrassed in its commercial operations. In August, 1862, the store in which its business was conducted was closed, and it doos not appear that the house did much business afterwards. The creditors of the firm became clamorous, and efforts (for the most part ineffectual) were made to compromise with thorn. Tho defendants, Ferrandon & Cessac, loft the State in 1864; tho former in tho spring of tho year, the latter about tho first of July, one of them taking- with him about two thousand dollars in cash, or rather as the record shows, that sum was sent to him after ho left. With this state of affairs the plaintiffs, the partners in commendam, became dissatisfied. A few days after the departure of. Cessac, they sued out a writ of sequestration, under which the. entire stock of goods and assets of the concern wore seized. A receiver was appointed, and tho business of the firm put in liquidation. The proceedings were carried on contradictorily, with a curator ad hoc duly appointed at their incoption.

A short time before leaving the State, Oossac, acting in the name of the firm, executed by notarial act a power of attorney to Joseph Baylo, authorizing him to transact tho business of the partnership generally, and specifying, among other things, the authority to sue on the part of the firm, and to defend suits brought against it. The mandatory was not a party to this act, and nothing appears in tho instrument showing that he accepted tho mandato. But afterwards, on the 27th of July, he appointed Edward Dubois in his placo. This substitution appears not to have been accepted in any manner by Dubois, and Baylo, by public act, on the 24th of October of tho . same year, delegated his power to Charles Espenau. The record, shows an admission by the parties, that this second substitute engaged Mr. Tissot, an attorney at law, to defend the suit brought by the plaintiffs against the defendants, although the exception filed by the attorney representing the defendants appears to have been filed on the 21th of August, previous to the substitution of Espenau.

The receiver proceeded, under authority of the Court, to sell for cash, on the 20th of September, the stock of merchandize and the assets generally of the firm ; and, on the 15th of October following, presented his account and tableau. Oppositions were filed by the curator ad hoc and some of the creditors. These oppositions were afterwards withdrawn, and on the 29th of October the account was duly homologated, and an order rendered that payments to the creditors be made in conformity with the tableau.

The exception before referrod to is of the peremptory kind, and was tried on the 21th December, 1861. On the 9th of January following, the Court rendered judgment sustaining the exception and dismissing the suit, on the ground that, in the opinion of' th.e Court, defendants had established satisfactorily that they had an agent in New Orleans, and that the exception filed was a sufficient notice to plaintiffs to discontinue their proceedings.

From this judgment the plaintiffs have appealed.

We are unable to concur with the Judge a quo in the conclusions to which he arrived. The procuration from the defendants to Bayle seems to have been ignored by him. He states clearly in his own testimony, given in the caso, his refusal to act undor the mandate, and his reasons for refusing. This was, that ho was threatened that, if he acted under the power of attorney himself, he would be liable. Ho was cognizant- of the proceeding taken against the-defendants. He states, in particular, that he was notified of the taking of the inventory, and that ho refused to act. It is not shown or protended that his fear of liability, if he acted under the mandate, was in any manner brought about by the agency of the plaintiffs. From his own declarations, and refusal to participate on behalf of the defendants in any of the proceedings going on, to his knowledge, against them, wo do not see that the plaintiffs were bound to recognize him as agent of the defondants. Having declined to act, it is not clear that he could, afterward, by a substitution, impower another to perform under the mandate, acts which ho refused to perform himself.

For these reasons, wo think the judgment of the lower Court should be altered.

It is therefore ordorod, adjudged and decreed, that the judgment of the District Court bo annulled, avoided and reversed; that the exception be overruled; and it is further ordered, adjudged and decreed, that the receiver’s account and tableau bo homologated and confirmed, and payments made in conformity with the sanie, The defendants and appellees paying costs in both Courts.  