37 La. Ann. 604 | La. | 1885
The opinion, of the Court was delivered by
L. W. Miller, the syndic in these insolvency proceedings, prosecutes this appeal from a judgment recognizing the opponent, Solomon Michelbacher, as a creditor on the account in which he had been ignored.
Appellant does not deny that the opponent is a creditor of L. W. Miller, but Ms contention is that the creditors of the firm of L. W. Miller & Co. must he preferred to the creditors of L. W. Miller individually.
The question presented on appeal involves the issue of the existence of any firm, or partnership distinct from L. W. Miller individually.
In the petition for surrender, L. W. Miller avers that he “is carrying on a commercial business in New Orleans under the commercial style of Lucius W. Miller & Co,” and in his affidavit attached to his schedule he states, among other similar matters, “that the above schedule contains a correct and, faithful statement of all the property I possess,” etc., etc. On trial he offered the testimony of a witness to prove that the latter had been bis partner from 1879 to 1881, and that no public notice had been given of the dissolution of the firm.
The evidence was admitted over opponent’s objections. It should have been rejected. The insolvent, who was subsequently chosen as syndic, having alleged and sworn that he alone composed the concern known under the commercial style of “L. W. Miller & Co.” should have been held to his judicial declarations, and should not have been permitted to prove a state of things entirely different from that set fortli in his pleadings. This rule of practice is elementary and need not be supported by authority at this stage of our jurisprudence.
Judgment affirmed.