
    
      BARKER vs. CONNELLIN's SYNDICS.
    
    Appeal from the court of the parish and city of New-Orleans.
    If an agent does at times business on his own account, and purchases goods, in his own name, his creditors will be entitled to them, unless the principal proves they were purchased on his own account.
    
      Abram Barker, in his petition, stated himself to be the lawful owner of a quantity of cotton, shipped by Connellin to Jacob Barker, of New-York, on his account and risk, which he, Connellin, had purchased, as agent of the said Jacob Barker, who assigned it to the petitioner: that the cotton was attached by Jacob Barker, discontinued his suit: that the defendants have possessed themselves of it and refuse to deliver it.
    East’n. District.
    
      March 1816.
    
    The defendants pleaded the general issue and there was judgment for them: the plaintiff appealed.
    The statement of facts shews that Connellin purchased the cotton from Samuel Elkins, and shipped it, on board of a vessel belonging to Jacob Barker of New-York: that the vendor instituted a suit, in which the cotton was seized, and in which Jacob Barker intervened, but the suit was discontinued: that the vendor instituted another suit, claiming a privilege on the cotton as vendor, in which the cotton was sequestrated and removed on shore, and a part of it was sold, by an order of court, to satisfy the sheriff for some disbursements made thereon, and the petitioner intervened, but the suit was discontinued, and Connellin having failed, the residue of the cotton was delivered by the sheriff to the defendants, who afterwards obtained an order of cour for the sale of some of the cotton, to pay charges of storage, &c. The present suit is brought to recover the residue, claimed by the petitioner, under an assignment from Jacob Barker. The defendants proved that Connellin, though an agent of Jacob Barker, did at times business on his own account, and in order to shew that the cotton in dispute was bought in his own right, they produced the oath of the vendor, now one of the syndics and defendants, and Connellin’s own declaration, annexed to his schedule. No bill of lading was produced or proven to have been given; and it was proven that Talcott and Bowers were the agents of Jacob Barker, in New-Orleans.
    Talcott, of the firm of Talcott & Bowers, deposed that the cotton was, as Connellin informed him, shipped for the account and risk of Jacob Barker, for whom he had purchased it, and on whom he had drawn bills for its amount, in favor of Elkin.—that he had knowledge of Connellin’s concerns, and believes he did little, if any business at all, on his own account. He had been sent to New-Orleans, as the agent of Jacob Barker, whose affairs here consisted in the purchase of produce and the dispatch of vessels, of which he had several, at the time in New-Orleans : he was furnished with a considerable sum in post notes, and had authority to draw. The witness heard that Connellin's bills on Jacob Barker, for the purchase of the cotton, had been suffered to lie over, but he has since understood he had got over his difficulties, was fully able to pay his debts, and was about satisfying the holders.
    Basset deposed that, shortly after the failure of Jacob Barker, he heard Connellin say that, although Barker owed him about $6000 for a balance of accounts, he would remain perfectly easy, as he had no fears of losing one cent of it.
    
      Ellery for the plaintiff.
    Our case is fully proven. It is in evidence that the insolvent was our agent in New-Orleans for the purchase of produce. It is true it is shewn that, independently of this, he did at times some business on his own account, but the witness say little, if any, business was done by him in this way. To balance the presumption arising from this circumstance, we shew that the cotton was shipped in our vessel, that the payment of it was effected with our funds, by bills given to the vendor on ourselves or rather the person under whom we claim. These three circumstances, viz. the purchase of the cotton by Jacob Barker's agent, the payment of it by bills drawn by the agent on the principal, under the authority with which he was clothed, and the shipment of it in Jacob Barker’s vessel, lead to the conclusion that the cotton was bought on his account. Admitting that the proof is not absolutely conclusive, and that it might be shewn against it, that the insolvent bought the cotton for his own account, yet the circumstances raise a violent presumption, which will stand till the contrary be proven. Stabit presumptio donec contrarium probetur.
    
    
      Morse for the defendants.
    There is no proof of the insolvent having acted as the agent of Jacob Barker, except in the deposition of Talcott, and this witness derives all his knowledge from his conversations with the insolvent. After failure the debtor cannot even acknowledge his signature on a note. In the case of Menendez vs. Larinda's syndics, 3 Martin 258, 705, this courtield that on a contest as to the legitimacy of claim among creditors, the confession of the insolven, or his acknowledgment of any instrument, takes no proof, except as to his liability to pay, but not against his creditors ; because it is considered as fraudulent. Fraud is always presumed in case of bankruptcy. Misotiere’s syndics vs. Cognard, id. 561. Mitchell vs. McMillan id. 695.
    It is true the statement of facts shews that the cotton was shipped, by the insolvent, on board of a vessel belonging to Jacob Barker ; but it does not appear that it was even consigned to him, much less that it was shipped on his account and risk, a circumstance which, by the production of the bills of lading, might have been placed beyond a doubt. It is in evidence that the insolvent traded on his own account, and other circumstances in the statement shew that cotton was not purchased for the account of Jacob Barker.
    If the declarations of the insolvent are to have any weight, in deciding the question, Bass’s deposition shews that he made large advances or considerable shipments, on his account to the person, under whom the cotton is now claimed.
   Derbigny, J.

delivered the opinion of the court. The plaintiff and appellant claims, as his property, a parcel of cotton, which he defendants and appellees took possession of, as syndics of Michael Connellin, an insolvent debtor.

It is admitted that Connellin bought this cotton from Samuel Elkins, one of the appellees : but, the appellant contends that Conellin purchased it, as agent of one Jacob Barker, under whom he claims.

It is in evidence that Connellin was the agent of Jacob Barker of New-York, and that on this occasion, he gave to the vendor, in payment of the cotton, his bills on the said Jacob. But it is also in evidence, that he did business sometimes in his own name and on his individual account. It does not appear that the vendor even knew that Connellin was the agent of Jacob Barker, much less that he intended to sell to him as agent, or, in other words, to sell to Jacob Barker through him. On the contrary, if we can listen to the contracting parties themselves, they have both declared that Connellin bought in his own name. The plaintiff’s title to this cotton is not made out : he has raised a light presumption, but produced no proof. Upon that ground, his action must be dismissed, which precludes the necessity of assigning the reasons, why his claim was inadmissible also upon another ground, viz. that this cotton was not paid for.

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