author: Sliuell, J.

text:
    Succession of Daniel Stocking.
    The endorsement of credits on a promissory note within five years, is not such evidence as will bar prescription, unless the credits are proved to have been paid.
    A workman is not entitled to a privilege upon a succession for his services, unless the things upon which he worked exist at the time of the decease of the testator; and to entitle him to a privilege on the funds to he distributed, it must appear that they are the proceeds of the sale of the things worked upon by him. C. C. 3184.
    An attorney at law has no authority to execute in the name of his client, a release to make an interested witness competent, unless he be specially empowered so to do.
    APPEAL from the District Court of West Feliciana, Stirling, J. A statement of the facts of this case will be found in the briefs of the counsel engaged in the case.

      Brewer and Collins, for appellee, contended :

      Daniel Stocking died on the 1st day of January, 1848. John C. Morris applied for letters of curatorship bn the 7th of January, 1848; his application was published on the 8th of January, 1848, and he was appointed on the 12th of February, 1848. There was no opposition made to his application. On the 10th day of May, 1849, Morris filed an account and tableau of distribution, (the succession being insolvent,) upon which account he placed himself as a privileged creditor of the fifth rank, for the sum of $139 47, for supplies of provisions, &c., to the deceased, and as an ordinary creditor for the sum of $650 83.

      Jesse Barkdull, a creditor of Slocking, and the appellee in this case, opposed the account and tableau upon various grounds ; the opposition being sustained in part, and the account ordered to be amended in accordance with the decree of, the lower court, John C. Morris appealed.
    It is necessary to notice only two of the grounds of opposition made by Bark-dull to the account, &c. 1. He opposes item twenty-three of the account, “ John C. Morris, account for provisions of the year the deceased died, $139 47,” because there does not accompany the account a detailed statement of the items composing this amount; he denies that Morris furnished the deceased with any supplies, and calls upon him to advance proof in support of the charge. No evidence whatever was offered in support of this item — consequently the lower court rejected it. 2. Item twenty-six, “ five notes due by Daniel Stocking and held by J. C. Morris, principal and interest, after deducting credits, amounts to $650 83,” was opposed upon the grounds, that the notes which form the evidence of the charge, were found among the papers of the deceased by Morris, who was fraudulently attempting to recover the amount from the estate, he (Morris) having no title to them. The prescription of five years was also pleaded in bar to the notes. The opposition was sustained, and this item rejected.
    One of the notes is payable to the order of Collins and Baldwin, and is not endorsed; no evidence was offered to show by what means it came into Morris’ possession; this note is dated January, 1842, and payable one day after date. The second note is dated June 4th, 1842, payable the 1st of October following, for the sum of one hundred dollars, to John B. Stinson or order, and endorsed by Stinson, the payee, without recourse. There was no proof of Stinson’s endorsement: both notes are also clearly prescribed. The third note is due on the first day of January, 1843, and payable to Morris or his order. The fourth is due on demand, to Morris or bearer, and is dated 17th January, 1843. On all of these notes there were credits, which if proven, would have taken them out of prescription; but notwithstanding Morris was put upon his guard, no attempt was made by him to prove these payments upon the trial of the opposition.
    More than five years had elapsed from the time these two last notes became due, before Morris was appointed curator of the estate. The first note was prescribed the day Stocking died; but had Morris used diligence, he might have been appointed curator of the estate previous to the second one being prescribed, and thus interrupt prescription; having failed to do so, he cannot now take advantage of his own neglect, and the prescription of five years must prevail. C. C. 3506. Hite et ais. v. Vaught, 2d Ann. 970.
    The curator reserved a bill of exceptions to the opinion of the court admitting the testimony of L. Camp, after the attorney for Barkdull had given the witness a written release. This the attorney had clearly a right to do, and the testimony was properly received. Paxton v. Cobb, 1 L. E. 137.
    The appellee has asked that the judgment of the lower court be amended in his favor, by placing him upon the account and tableau of distribution as a privileged creditor for the sum of fifty-five dollars and seventeen cents, with eight per cent interest thereon from the 15th of August, 1847, to be paid out of the sale of the tinware found in the shop of the deceased at his death. This privilege was claimed in the lower court, but was.rejected.
    The note bears upon its face evidence that it was given for services rendered by Barkdull to the deceased. The testimony of Lartigue proves that Barkdull had been working in the tin-shop of Stocking for the last two years previous to the death of Stocking, and that he was his principal workman; Barkdull making the tinware and Stocking peddling it off. Barkdull was in the shop at' the time Stocking died, and remained in possession until the day of sale.
    The workman or artisan has a privilege for the price of his labor on the thing which he has repaired or made, if the thing still continues in his possession. C. C. 3184.

      C. Ratliff, for appellant, contended:

      Daniel Stocking died on the 1st of January, 1848, and John C. Morris applied for letters of curatorship on the 7th of January, 1848; his application was published on the 8th of January, and he qualified on the 12th of February, 1848. On the 10th of May, 1849, Morris filed an account and tableau of distribution of the funds pf said succession, and
      Jesse Barkdull filed an opposition to said account and tableau. This opposition being sustained in part, and the claims of Morris as a privileged and ordinary creditor being ruled out, he has appealed. The death of Morris being suggested to this court, and George Harrison, curator of the estate of Stocking, having made himself a party, the case is now in a condition to be disposed of.
    There are but one or two questions involved in this controversy. The first one I will present for the consideration of the court is this : John C. Morris held five notes of Daniel Stocking, principal and interest amounts to $650 83 ; the plea of prescription was interposed to the allowance of these notes, and was sustained by the court; and we think erroneously. One note is dated January, 1842, and is payable one day after date; the second is dated 4th January, 1842, and due the 1st of October, 1842 ; the third note is due 1st January, 1843; the fourth note is dated 17th January, 1843.
    The question of prescription is a simple one. • 1. Does the payments on the notes, endorsed thereon at a time not suspicious, and the notes in the hands of the payee, take them out of prescription? Is it not a strong presumption, that these payments and receipts on the notes were the reasons why suit was never brought to enforce their payment? But the main question is, two of the notes were not due five years before Stocking died, but were due five years before Morris wns qualified as curator; one note wns due five years the day Stocking died; the other was due five years on the 17th January, 1848 ; Stocking died on the 1st January, 1847; Morns applied for letters of curatorship on the 7th; on the 8th, his application was published, and on the 12th of February he was qualified as curator, &c. Now it is urged that prescription runs against those notes, because Morris could have qualified sooner; that he could have applied next or the same day Stocking died, and that he did not qualify as soon after the time that the notice expired as he might have done. It is clear Stocking had no legal heirs at his death; his estate was a vacant one ; Morris applied for letters in six days after his death, and was qualified in twenty-two days after be applied. During this period there was no one to make a demand on, nor bring a suit against, and after Morris was qualified as curator he could not sue himself. Now, the question is, did prescription run during this short delay in Morris obtaining his letters ? We think not:'no one opposed Morris’ application and he qualified in a reasonable time, and during the time there was no one he could sue on these notes, there was no danger during Stocking’s lifetime of prescription running against these notes, as he was making payments from time to time on them, and kept them alive. Prescription does not run against, a party when he is incapacitated from suing, and as Morris was proceeding to qualify without opposition, his doing so a day sooner or a day later would not change the relation of the parties, as he could not sue before, nor could he sue after he was qualified. The judgment sustaining the plea of prescription is certainly erroneous.
    2. The next question we will present for the consideration of the court is, is Barkdull a privileged creditor of the estate of Stocking? We think not. He was a journeyman in his (Stocking’s) tin-shop, but as such had no privilege on Stocking’s estate, if he had a privilege at all, it was only upon the materials he worked on ; and there is no evidence that a single thing that he made was sold at the sale. C. C. 3184. 2d Ann. 874.
    The claims of Barkdull consisted of a due-bill for $37 19, dated the 21st of September, 1846 ; it is clear this is no privilege. The other is a note for $55 17, dated 15th August, 1847, it is clear this is no privilege. C. C. 3174. The next item is an account of McCombs and Clauss, transferred to Barkdull by Clauss. There is no evidence in support of this item, except the evidence of Clauss the transferrer. The counsel for Morris objected to the reception of Clauss as a witness because he wns interested ; the counsel for Barkdull then entered a release of any recourse against the witness on the part of BarJcdull. The counsel for Morris objected that the attorney of record had no power to release the witness, it was an act of ownership, an alienation of so much property, rights and credits, which none but the owner or a duly authorized agent for that purpose could do; the court admitted the evidence, and the curator took his bill. We think the court erred in this, the counsel for Barkdull has in his brief stated that the notes opposed by him were found among the papers of the deceased by Morris, who was fraudulently attempting to recover the amount from the estate. As the record is not before me I will not be positive, but according to my recollection, no such allegation is in the opposition. Certain I am that no proof was offered in support of such a charge, and it is a reflection upon a -worthy officer who made the inventory, and unless such a charge was made in good earnest and well supported by evidence, common prudence aud self respect says they should be let alone. The court will examine the inventory and see how fallacious this charge is.
    In conclusion, we contend that the judgment of the court below is erroneous; the notes opposed by Barkdull is not prescribed and should be allowed; Bark-dull’s due bill and note is not privileged, and should be put down only as ordinary claims; the account of McCombs and Clauss transferred to Barkdull is not proved by any evidence; the evidence of Clauss should have been rejected, upon the grounds stated in curator’s bill of exceptions.
   The judgment of the court was pronounced by

Sliuell, J.

We think the plea of prescriptions was properly maintained. See Civil Code, 3505, 3506. Hatch v. Gilmore, 3d Ann. 509.

We also concur in the refusal of a privilege to Barkdull which he claimed under article 3184 C. C., No. 2. It is a sufficient reason for doing so, that it is not proved, that the articles upon which he worked existed at the death of Stocking, and that the money in the hands of the curator for distribution, was the proceeds of sale of those articles.

We incline to the opinion that the judge erred in admitting an interested witness to be sworn on behalf of Barkdull upon the execution of a release in his favor by Barlcdull’s attorney of record, to whom no special authority appears to have been given. See Ball v. Bank of Alabama, 8 Alabama 590. Marshall v. Nagel, 1 Balay, 308. Springer v. Whipple, 5 Shep. 351. York Bank v. Appleton, Ib. 55. Murray v. House, 11 Johnson, 464. But the item dependant upon the testimony of the witness is so small, that we have not considered the matter of sufficient moment to authorize'a reversal, and impose upon the parties the expense of further litigation.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: RoSt, J. Preston, J., Eustis, C. J.

license: Public Domain

text:
    Martha Ann Pearson v. Warren A. Grice, Executor.

    In the inheritance of successions amongst collateral relations, the nearest in degree excludes all others ; and if there are several in the same degree, they partake equally. C. C. 910.
    The propinquity of consanguinity is established by the number of generations, and each generation is called a degree. O. C. 885.
    In successions falling to collateral relations, there is no distinction between those of the whole blood and those of the half blood: they share alike.
    A joint proprietor, or heir, or co parcener, can maintain a petitory action for the whole undivided property, against a mere possessor without title.
    A right is litigious only where there exists a suit and contestation on the same. O. C. 2623* C. O. 3522, $ 22.
    The defendant who wishes to avail himself of the privilege of paying the plaintiff the price at which a litigious right has been purchased, must actually tender or deposit the amount and cease all litigation as to the existence of the right.
    APPEAL from the District Court of Concordia, Farrar, J.

      Stacy and Sparrow, Bullard and Frost, and Ogden, for plaintiff.

      R, H. Mart, for intervenor.
    A. Hennen, for defendant.

      A statement of this case will be found in the dissenting Opinion of Prisión, J.

   The judgment of the court was pronounced by

RoSt, J.

The only question presenting any difficulty in this case, and the only one in relation to which we differ from Mr. Justice Preston is, whether the intervenor, who is the sister of the half blood of' the father of the deceased, is entitled to share her succession equally with the plaintiff, who is a sister of the whole blood of the mother of said deceased. Article 910, C. C., provides, that among the collateral relations, he who is the nearest in degree excludes all the others; and if there are several in the same degree, they partake equally and by heads, according to their number.

The propinquity of consanguinity is established by the number of generations, and each generation is called a degree. Art.. 885.

The language of these articles is free from ambiguity, and the plain import of the words used applies equally to relationship of the half blood and of the whole blood. But for the discrimination which art. 909 makes in favor of brothers of the whole blood, their interpretation could never have presented any difficulty. But that article provides, that when brothers and sisters of different marriages are called to an inheritance, the succession is equally divided between the paternal and maternal lines of the deceased; that the german brothers and sisters take a part in the two lines, while the paternal and maternal brothers and sisters take a part in their respective lines only. And it is contended, that, by analogy, the rule should be extended to all collateral relations, and applied to the present case. It is urged in support of that view, that-it was provided in the Old Code, that the prerogative of the whole blood existed only in favor of the brothers of the whole blood of the deceased, and of their children, to the exclusion of brothers of the half blood, but that it extends no further; and that as this limitation has been left out of the New Code, it is a fair presumption that the Legislature intended the prerogative in favor of the brothers, to be extended to all collateral relations. ■ -

Under our system of jurisprudence, blood is not the foundation of the right of inheritance in collateral successions; neither is it now in England, under the statute of distributions. With us, the law which defers successions to all the relations of the deceased nearest in degree, is the general rule, and is a law of public order. The prerogative established in favor of brothers of the whole blood, is an exception to that general rule, and, like all other exceptions, is stricti juris. It would be subversive of all principles of jurisprudence to extend it to other persons than those to whom it has expressly been granted. The suppression of the limitation found in the Old Code could not have had the effect of converting the exception into the rule, and the circumstances under which it was made negative any such intention in the Legislature. The only reason given for it in the projet is, that the changes introduced in the New Code, in the succession of ascendants, had introduced such modifications in collateral successions that it was found necessary to suppress all the articles of the Old Code treating of collateral successions but one, and to replace them by others more in hnrmony with the new legislation introduced. Ten articles were accordingly suppressed, one of which was the one relied on. It was left out without any reference to the question under consideration, and no doubt because the disposition it contained is found in substance in art. 910 of the New Code.

The new articles adopted were all taken from the code of France, under which it is considered elementary, that in collateral successions the proximity of the degree is alone to be looked to, without regal'd whether the relationship to the deceased is of the whole or of the half blood. Toullier, vol. 4, book 3, tit. 1, No. 224. Duranton, vol. 6, b. 3, tit. 1, Nos. 150, 256. Mareadé, vol. 3, b. 3, tit. 1, p. 61. Vazeille, Successions, vol. 1, pp. 35, 66, 67, and notes. 12 Sirey, part 2, p. 197, Héritiers Corbisitr.

This has been a fundamental principle of the Civil Law since the promulgation of the 118th Novel of Justinian. It was, and still is the law of Spain and of France, and we are at a loss to conceive how it could have been enacted in more express or clearer terms than it has been in art. 910 of the code. Domat, vol. 2, law 2, tit. 3, pp. 465, 470, 471. Gregorio Lopez in sexta partida, tit. 13, law 5, No, 1. Febrero, b. 2, ch. 9, de los herederos ab intestato, pp. 417, 421.

We are of opinion that the judgment should be affirmed. It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.

Preston, J.,

dissenting. Nancy Neale Jones departed this life in the parish of Concordia, on the 29th of August, 1849, leaving a large estate in land and negroes. The day before her death, she signed a private writing, which was, by the clerk of the parish, admitted to probate as her will. Warren A. Grice was qualified as her testamentary executor, and letters of executorship delivered to him. He is also tutor of Mary Louisa Grice, the universal legatee, and-of several minors to whom particular legacies were given. The writing purporting to be her will was not written by the testator, nor is it signed by any witnesses. It is not an olographic will, because not entirely written, dated, and signed by the testator. It is not a nuncupative will, under private signature, because not executed in the presence of the witnesses, nor in the manner required by law. It is, therefore, null and void, by article 1588, of our Code, if there be heirs of the deceased entitled to have its nullity declared by judgment.

Marika Ann, Pearson alleges that she is the aunt of the deceased, and her only heir, being the nearest relative she left at her death. She claims, that the wall be annulled, and the whole estate delivered to her. Sarah Ashford has intervened, and alleges that she is the aunt of the deceased, and her only heir, and that the plaintiff is not an aunt. The executor and tutor denies that either are aunts, and alleges that the deceased died without any relations.

A great deal of testimony has been offered by the plaintiff and infervenor, to establish the relationship to the deceased respectively claimed by them. Much of it was objected .to by the defendant, and for various reasons and exceptions taken to its admission. Thus, the deposition of Mary H. Brockington was opposed because no prods verbal was made of the manner of executing the commission and taking her testimony, as required by the 433d article of the Code of Practice. And we think it should have been rejected. Some of the commissions were accompanied by interrogatories which might strictly be considered leading interrogatories, the answers to which were objectionable on that account. And hearsay testimony was admitted, beyond what strictly the rules of evidence would allow even with regard to pedigree, as to which the rules of evidence have been so greatly relaxed.

But there is ample evidence in the record to establish the relationship claimed by the plaintiff and the intervenor, independently of all that which is objectionable. Thus, the deceased caused a letter to be written to a nephew shortly before her death, in which she fully recognized the plaintiff to be her aunt. The deceased also made many inquiries of another nephew, Benjamin F. Rogers, of this State, in relation to the plaintiff, as her aunt, and reciprocal inquiries were made by the aunt as to her niece. The deceased in effect acknowledged the same thing to the witness Whitaker; and in fact the relationship which existed between her and the plaintiff is proved by the personal knowledge of Mrs. Powe, and several other witnesses examined in South Carolina under a commission.

Mrs. Ashford, the intervenor, has been equally successful in proving that she also was an aunt of the deceased, on the father’s side, both by the acknowledgments of the deceased and by many witnesses. '

It is proved by connexions of the deceased, that she died without ascendants or descendants, brothers or sisters, or their descendants. If there were any doubt on this subject, it would be removed by the testimony of several witnesses offered by the defendant himself, to prove that the deceased had no relations. And this would also remove all doubt, if there were any, that all the uncles and aunts of the deceased, except the plaintiff and intervenor, were dead. And even if there were others, the district court was correct in instructing the jury that a joint-proprietor, or heir, or coparcener, can sue and maintain a petitory action against a mere possessor without title, for the whole undivided succession or property. 3 L. R. 164.

Being perfectly satisfied by evidence that is unquestionably legal, that the plaintiff and the intervenor were, as they allege, aunts of the deceased, we cannot'think of remanding the cause for another arduous trial, because some illegal evidence has been admitted, and may have operated on the minds of the jury. So far as the verdict establishes the heirship of the claimants, we are satisfied that truth has prevailed and justice has been done. The plaintiff and intervenor have, therefore, the right to have the will of the deceased annulled, and to recover her whole succession from the defendants.

But a new and difficult question is presented by the plaintiff and the intervenor, as to the proportions in which they are entitled to share the inheritance of their deceased neice. The testimony shows, that the plaintiff was the full sister of the mother of the deceased, and that the intervenor was but the half sister of her father. The plaintiff, being the aunt of the whole blood, contends, that her relationship was nearer to the deceased than an aunt of the half blood, and that she is entitled to inherit the whole succession. The intervenor, on the other h¿nd, insists, that she was as near in the degree of relationship to the deceased as the plaintiff, and that they should share the succession equally. The intervenor invokes article 910 of the Civil Code; the plaintiff, that and the preceding article. Their respective counsel have referred to other articles of the code, and have favored us with very able arguments on both sides, having in their investigations made great researches into the Roman, Spanish, French, and English jurisprudence on the subject.

The principles and decisions invoked have depended very much upon positive enactments as to the rights of brothers and sisters of the whole or half blood. And we cannot say, from an examination of the authorities cited, that there has been a fixed and permanent rule in any of those systems of jurisprudence, which would govern the rare contingency that has occui'red in the present case. We find provisions and decisions by which the relations of the half blood, though in the same degree, have been excluded entirely by those of the whole blood, and others by which they have been admiitted to an equal participation in the inheritance. Even in this State there has been changes of legislation on the subject. Under the Old Code, the brothers and their children of the whole excluded entirely the brothers and their children of the half blood; but it was expressly provided that the preference given to the whole blood should extend no further. Therefore we are to conclude, that among more remote collaterals those of the half blood would have inherited equally with those of the whole blood in the same degree, under the Old Code, p. 154, art. 39. But the whole article was omitted in the New Code; thus expressly repealing the limitation of the preference, and, in place of the whole, substituting article 909 of the New Code.

The following clause of article 910 of the New Code, on which both parties rely, is the only clause of the whole chapter on collateral successions in the Old Code which has been preserved : “ Among the collateral relations, he who is the nearest in degree excludes all the others; and if there are several in the same degree, they partake equally and by heads according to their number.”

In the Old Code, it was the necessary consequence of the principle established immediately before, that brothers of the whole blood should exclude brothers of the half blood with this express limitation, “ The prerogative of the whole blood exists only in favor of the brothers of the whole blood of the deceased, and of their children, to the exclusion of brothers of the half blood; but it extends no further.”

But in the New Code this clause as to collateral relations was retained, with a new principle governing the inheritance from a deceased brother by brothers of the whole and half blood, and their descendants; which in effect regulates their shares in the inheritance in proportion to the quantity of the same blood with that of the deceased which flows in their veins. The principle was not expressly extended to more remote collaterals; yet it was not like the principle in the Old Code, expressly limited to brothers and their children. On the contrary, this limitation was repealed by being omitted. In a word, the Legislature did not contemplate or provide for the case before the court, so unlikely to occur, that it was not anticipated. It is, therefore, the duty of the court to exercise the power given by the 21st article of the Code, when the law is silent; and in interpreting article 910, to derive the best light we can from nature, 2'ea-son and the analogies and usages of our law. We think they lead to a middle course between the pretensions of the parties in this case.

The aunt of the half blood is a relation as near in degree as an aunt of the whole blood; but she is as near by one parent only. She is not as fully related, because the aunt of the whole blood, though standing in the same degree of relationship, is doubly related through both father and mother. The laws of nature, therefore, seem to render us more dear to an aunt of the full blood, and she to us, than to an aunt of the half blood, though in the same degree of relationship.

The connexion of blood is the natural basis of inheritance. Mrs. Pearson is the daughter of two grand-parents of the deceased; Mrs. Ashford is the daughter of but one. The blood of two grand-parents flows in the veins of the plaintiff; the blood of but one in the veins of the intervenor. The claim of the former, on account of the totality of her blood, to inherit more from her neice than the latter, on account of her partial blood, seems to be strongly founded in nature.

So, consulting our reason, we are to consider that the laws of inheritance are founded much upon the principles of reciprocity. Had Mrs. Pearson died, leaving her parents aB her only heirs, her whole fortune through them might have been inherited by Mrs. Jones. Had Mrs. Ashford died, leaving her father and mother her only heirs, half her fortune would have ascended to her mother and half to her father, the grand-father of Mrs. Jones; which half alone could have descended to the latter. So, if Mrs. Pearson had died, leaving as her nearest relation her neice, Mrs. Jones, the latter would have inherited her whole estate, to the exclusion of a step-daughter of her sister by the father of Mrs. Jones, and of course her half sister. On the other side, if Mrs. Ashford had died, leaving her nearest relations, Mrs. Jcnes and her half sister, they would have inherited her estate equally. So that Mrs. Jones, under the same circumstances precisely, would inherit the whole estate of her whole aunt, and but half the estate of her half aunt. It is but just and reasonable, therefore, that her aunts of the whole and of the half blood, being her only heirs, should inherit her estate in the same proportions, and that Mrs. Pearson should have double as much as Mrs. Ashford.

The analogy of our law, in the case of the whole and half brothers of a deceased brother, is conclusive. The estate being equally divided between the paternal and maternal lines of the deceased, his german brother takes a part in both lines ; his half brother in one line alone. I can see no reason for giving brothers of the whole and half blood, and their children, portions of the succession of a deceased brother in proportion tq the blood they inherited in common with the deceased, which does not equally apply to more remote collateral relations. The two cases are precisely analogous. The Legislature have given us a fixed rule in the one case ; the reason of the rule applies with all its force to the other cases. And if we adopt it, we follow a rational rule which will apply to, and govern with uniformity, every possible case that can arise. If we reject it, we are without any rule given by the Legislature, and the cases that may occur must be left to the uncertain discretion of the courts ; which appears to have been much exercised by them in England, as well as by the tribunals under the jurisprudence of Rome.

The whole section of our code, as to the successions of collaterals, must be interpreted together; and the fair construction of the whole as applied to the present case, is, that the plaintiff, being the aunt of the whole blood, inherits twice as much of the succession of her deceased neice as the intervenor, being the aunt of the half blood — the one having twice as much as the other of the same blood which belonged to the deceased.

The defendant alleges, that having discovered in the progress of the trial that Mrs. Ashford had sold her rights in the succession to George R. Price for $10,000, upon certain conditions, he tendered the price to him, under article 2622 of the Civil Code, in order to obtain a release to him of her rights and those of the transferree, because he had purchased a litigious right from which the defendant was entitled to be released on paying the real price of the purchase. But it appears that Mrs. Ashford sold her rights to George R. Price on the 24th day of January, 1850, and he did not file her intervention, claiming her interest in the estate, until the 21st of March following.

The article of the code invoked is found in the chapter upon the contract of sale, and is immediately followed by an article declaring that a right is said to be litigious whenever there exists a suit and contestation on the same. The two articles must have reference to and govern each other. The right of Mrs. Ashford in the succession before she commenced suit or intervened to assert the same, was not therefore a litigious right. It is true, the last article of our code in defining the terms used in the code, declares that litigious rights are those which cannot be exercised without undergoing a law-suit. The two articles are not inconsistent. The impossibility of exercising the right without undergoing a law-suit is never certainly ascertained until the law-suit is commenced. Before its commencement, it is to be supposed that if the claim be just, the person against whom it is made will do justice by according it to the claimant without suit; or that he will at least arbitrate or compromise the matter, and that the claimant will not be forced to a law-suit. It is only when forced to commence a law-suit, that it is ascertained that the claim cannot be exercised without undergoing a law-suit, and it becomes a litigious right by the commencement and existence of the law-suit. And when that misfortune for the defendant occurs, the law beneficently allows to him the preference in purchasing in order to buy his peace. This court has, therefore, uniformly refused to avoid the sale of a thing on the ground that it was a litigious right, unless suit had been brought to enforce the right at the time of the sale. 2d Ann. 60. Ib. 79. 3d Ann. 554.

Further, the record shows that the defendant has not availed himself of the privilege to'substitute himself to the purchaser of a litigious claim against him by tendering the real price of the purchase. He should have actually tendered or deposited the price and ceased all litigation with the intervenor. He has done neither; on the contrary, has contested the rights of the intervenor as zealously since as before the apparent offer to purchase them. See the case of Leftwitch et al. v. Brown, 4th Ann. 104, in which it was held, that under such cii'curastances the defendant was not entitled to the privilege of releasing himself by paying the price of the purchase. We adhere to that decision in the present case.

The answer of the intervenors to the plaintiff’s objection that they cannot maintain their intervention, having sold their rights, is conclusive that the agreement required them to bring suit in their own names to establish their rights, they agreeing to convey to Price whatever might be recovered in the suit. I am therefore of opinion, that the judgment of the district court, as to the defendants, should be affirmed ; but that the judgment as between the plaintiff and intervenor should be reversed, and that the plaintiff should recover two-thirds of the succession of Nancy Neale Jones from the defendants, and the intervenors one-third of the succession.

Same Case — On a "Re-hearing.

ON the petition for a re-hearing, the judgment of the court was pronounced by

Eustis, C. J.

It is ordered, adjudged and decreed, that the plaintiff and Warren A. Brice, the executor, each pay one-half of the costs of the appeal.


author: Prestos, J.

text:
    David R. Wingate, Administrator, v. Jane Wheat et al.
    A foreign administrator, having given ample bonds, has a right to sue for property fraudulently brought to this State, belonging to his intestate. An administrator is considered by relation as being in possession of the property of an estate from the date of the decease of the intestate.
    from the District Court of Washington, Stirling, J.

      Jesse R. Jones, for plaintiff.
   The judgment of the court was pronounced by

Prestos, J.

The plaintiff, as administrate* of Joseph Wheat, sues the defendants for eight slaves, which he alleges belongs to the estate of the deceased. He was appointed and qualified by the Probate Court of Marion County, in the State of Mississippi,

He alleges, and establishes by a duly certified copy of the records of that court of the proceedings as to the estate of Joseph Wheat, the following facts: That he died in that State and county, intestate, and without children, in the month of A ugust, 1845. He left a plantation, eight slaves, and some movable property. His widow, Jane Wheat, survived him. On the 16th of March, 1846, she was appointed, qualified, and gave security as administratrix of her deceased husband’s estate, She made an inventory, to the truth of which she attested on oath, and in which the eight slaves for which the present suit is brought are stated to be the property of the estate.

In January, 1847, she applied to the court, and obtained an order for the sale of the slaves, as the property of her deceased husband’s estate, for the purpose, as stated by her, of making a distribution among his heirs. She named, as his heirs, a sister and several nephews and nieces. Willliam Wallis, one of the present defendants, and his wife purchased six of the slaves, and Mrs. Wheat, the administratrix, the other two; and the sale was confirmed by the judge of the court of probates, on the 16th of March, 1847.

On the 15th of March, 1847, the day before the confirmation of the sale of the slaves, the sureties of Mrs. Wheat, as administratrix of the estate, applied to the court to compel her to give them counter-security, or to execute a new bond as administratrix, on the ground that they were in danger of suffering on account of being her sureties. She refused to do so, and the court thereupon revoked her appointment as administratrix, and committed the administration of the estate to the sureties, Daniel Felder and William M. Rankin.

In May, 1847, they sued Mrs. Wheat and Elias Wallis and wife, to annul the sale to them of the slaves, on the ground that it was a fraudulent sale. On the 21st of July, 1847, the court, after hearing testimony, and the exceptions and arguments of the counsel of the defendants, annulled the sales of the slaves, for the reasons alleged by the administrators in their petition, and also on the ground that they were not only voidable but void ab initio. In the progress of the suit, they alleged and made oath to their fears that the defendants would remove the slaves out of the State, and obtained an order of the sheriff to seize them. He succeeded in obtaining possession of four of them, Toby, March, Clarissa and Maria, in August, 1847. The administrators applied for and obtained an order to hire out, at public auction, these four slaves until the 25th of December, 1847. Elias Wallis, one of the defendants in the present suit, bid them off, and gave Jane Wheat, the other defendant, as his security for their hire. Felder and Rankin then applied to be, and were released, as adtninistrators; and on the 21st of September, 1847, David R. Wingate was duly appointed administrator, de bonis non, on the estate, to whom the note for the hire of the slave was delivered.

This appointment, we consider, transferred to him not only the possession of his immediate predecessors in the administration of the four slaves which had just been hired by them, but entitled him to all the rights of all previous administrators to any property of the estate of which the administration remained incomplete.

Mr. Greenleaf lays down the principle as follows : “An executor or administrator has the. property of the goods of his testator or intestate vested in him before his actual possession, and therefore may have trover or trespass against one who lias taken them. And although he does not prove the will or receive letters of administration for a long time after the death of the intestate, yet the property will be adjudged to have been in him by relation immediately upon the decease.” Vol. 2, sec. 641.

The facts detailed leave no doubt of the tortious conversion by the defendants to their own use of eight slaves belonging to the estate of Thomas Wheat; that they unlawfully removed four of them from the State of Mississippi, while a suit was pending against them by the administrators for the slaves, and which terminated in a judgment against them;. and that they, in like manner, removed four others from the possession of an administrator, and by him hired to them, and that their possession afterwards, at least, was in bad faith, and has continued so from that time until the present.

The defendants were found in possession of the eight slaves in Louisiana, and at the suit of the present administrator, they were sequestered by the sheriff of Washington parish, on the 21st of February, 1849.

Wallis answered to the suit that Jane Wheat had dispossessed him by suit; and she answered that she held them by the judgment of the district court for that parish, obtained by her against Wallis. She gave in evidence the record of a suit brought by her, as a resident of Marion County, State of Mississippi, against Wallis, for seven of the slaves. The petition was filed in the district court for the parish of Washington, on the 21st day of October, 1847. An answer was filed by the defendant the same day, and judgment entered and signed by the district judge the next day, by which she recovered the slaves.

This occurred within a month after four of the slaves had been hired by the administrator to Wallis, of whom Jane Wheat became the security for the payment of the hire. If this suit was a Iona fide suit, the recovery by Mrs. Wheat of the slaves would have inured to the benefit of her deceased husband’s estate, to which she had, during that and the preceding year, in judicial proceedings, as administratrix, declared under oath that they belonged. If it was a fraudulent suit, it was a flimsy veil to cover their fraud in running off part of the slaves from the State of Mississippi, at the very moment when lawful administrators were suing them for, or had obtained judgment against them for the slaves, and the other half from the possession of the administrators from whom they had hired them.

They also produced a paper purporting to be a copy of a private bill of sale of Rose, one of the slaves and mother of the rest, to Jane Wheat, purporting to be dated in 1818, and recorded in the parish of Washington, in August, 1847. Jane Wheat was then a resident of Mississippi, by the showing of her petition, filed two months afterwards, and had no honest motive to record her titles in Louisiana. But six months before it was recorded she held the slaves in Mississippi, as administratrix of her husband’s estate; and but a month before, the administrators who succeeded her recovered judgment for the slaves in Mississippi against her'and Wallis.

It remained unrecorded for thirty years, and was not exhibited when it was needed in the State of Mississippi, but at that moment is recorded in Louisiana, where the owner of the slave did not reside, and where the slave should not have been. It is used a single day as the basis of a judgment rendered in a suit the day after issue joined; was then withdrawn from the record; is lost, though essential to the defence of a suit that must afterwards take place, and is not produced on the trial of that suit, but a copy, without proof of its loss.

This copy of the sale of the slave Rose was illegally admitted in evidence, and an exception taken. The original is believed to have been manufactured to complete, in this State, the frauds commenced in the State of Mississippi: and whether it was a true or false bill of sale, and whether made in Louisiana or Mississippi, by its very terms, in selling to Jane Wheat, vested the slave and her issue in Joseph Wheat, her husband. Our courts should not be made handmaids to these vile attempts to defeat the lawful administration and legal distribution of property in a sister State. We should not interfere more than possible with the property of citizens of other States, or the jurisdiction of their courts. We have discountenanced it as much as possible, by dissolving attachments of property brought into this State for the express purpose of being attached, by enabling sheriffs and administrators of other States to' pursue property in this State taken from their possession, by aiding parties to restore to the place where it should be, property, where the courts of our sister States had in any manner jurisdiction over the subject matter; and in many other cases and modes, as the recent decisions of the court abundantly show. 1st Ann. 49. Paradise v. The Farmer's Bank of Memphis. McKee v. Amonett et al.

On the trial of the cause, the defendants filed what they called a peremptory exception, founded in law, to the suit, that Wingate was not recognised as administrator by our courts, or under our laws. It is not a peremptory but a dilatory exception to his capacity to sue. But even if it was a peremptory exception, it was only as to form, and in either case the defendants waived it by filing general and special defences on the merits, and the district court properly disregarded it. C. P. 333. 4 L. R. 328. 2d Ann. 1017.

If it had been filed in time, it was not well founded in law, in the present case. A foreigu administrator, having given ample bonds, as in this case, has a i-ight to sue for property fraudulently brought to this State, belonging to his intestate. 2 N. S. 17.. 1st Ann. 48. 2d Ann. 430. 2 Greenleaf on Evidence, as quoted above.

There are few cases in which the allegations in the petition and evidence in support of them could more strongly fortify the right and demonstrate the necessity of the principle than the present.

The district court gave judgment against Wallis, for one of the slaves. He should, in like manner, have rendered judgment against Mrs. Wheat for the remainder.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed. And it is further ordered and decreed, that the plaintiff David R. Wingate, in his capacity of administrator de bonis non of the estate of Thomas Wheat, deceased, recover from the defendants, Jane Wheat, Elias Wallis, Martha Wallis, and William Wallis, the slaves Toby, March, Clarissa, Maria, Tom, Peter, Rose, and David, described in the .petition, with costs in both courts.


author: SniDEm,, J.

text:
    Succession of David Pate.
    It is not required in the recording of mortgages that the acts of mortgage he inscribed in fall. It is sufficient if the registration contains all that it is essential for the public to know.

      The registration of a mortgage will not be affected with nullity because the recorder has . 110fc complied with the directions of the law ag> to the manner in which the hook of record has been paraphed and bound.
    APPEAL from the District Court of East Baton Rouge, Burk, J. On the opposition of William D. Baker to the account of the administrator.

      C. Ratliff, for opponent.

      A. S. Herron, for administrator.
   The judgment of the court was pronounced by

SniDEm,, J.

Baker, who holds a judgment recorded in 1846, has appealed from a decree refusing him a precedence over certain conventional mortgagees, who had recorded their mortgages at previous dates, but, as the appellant contends, in an insufficient manner. The principal objection to the sufficiency of the registry is, that they did not cause the acts of.mortgage to be inscribed in full, but merely inscribed certificates of the parish judge before whom the mortgages were executed, in which respectively he certifies that an act of mortgage had been executed before him, the material and substantial details of which are stated. The appellant does not deny that this registration contained all that it was essential for the public to know — the names of the mortgagor and mortgagee, a description of the property mortgaged, the sum, interest, time of payment, &c. We have hitherto said that the object of registration is public notice with reasonable certainty; and we cannot sanction a construction which would avoid the registry of a mortgage upon the ground that the entire deed of mortgage was not spread verbatim and literatim upon the public records.

Objection is made to the sufficiency of the registry of a judgment in favor of another creditor, Hugh Wilson. It seems that it was recorded in a book kept for judicial mortgages; which book, as a witness, the present recorder, testifies, was not bound fully, but merely loosely stitched and not paraphed. The recorder would have better fulfilled his duty as a public officer if he had prepared this important record book in a more durable form, and had obtained the paraph of the judge, as the law directed him to do. But we do not think this negligence of the public officer affects the registration with nullity. The code directs parish judges, who were formerly the recording officers in their respective parishes, to keep three registers, one for conventional mortgages, one for judicial mortgages, and one for donations. See C. C. arts. 3351, 3352. Many parish judges kept a single book, but this irregularity on the part of the public officer was not considered fatal to the mortgage creditor. See Gillespie v. Cammack, 3d Ann. 251.

Under the pleadings, it was not necessary that Wilson should prove his judgment. Its registry only was disputed. The recorder’s certificate of its registry seems to us sufficient in form.

The execution and registry of the mortgages in favor of the heirs of Bird and others appear to us to have been sufficiently proved.

Judgment affirmed, with costs.


author: Eustis, C. J. Preston, J.,

text:
    Philip Vernon v. John Vernon’s Heirs.
    The legitimacy of a child horn during Wedlock cannot he contested under any other circUnistances than those provided for by law. C. C¡ 808, 810, 811.

      The declarations of the father are insufficient to bastardize the issue of the marriage. To rehut the presumption of legitimacy resulting from marriage the evidence must be distinct and clear.
    To render a nuncupativ e will valid, it must either have been read by the testator to the witness, or have been read by one of the witnesses to the others, in the presence of the testator. C. C. 1575,3588.
    APPEAL from the District Court of Washington, Penn, J.

      A. Hennen, for the plaintiff, contended:
    1. The plaintiff is the legitimate son and heir of the deceased; born and reared in lawful wedlock. Is pater est quem nuptial demonstran!. C. C. 203. 2. The declarations of his parents cannot render him illegitimate. Tate v. Penn, 7 N. S. 548. Eloiv. Mader, 1 R. R. 584. 2 Toullier, 119 3 Partidas, tit. 14,1. 19. Pand. lib. 22, tit. 9,1. 29. Lacombe, “ Mat. Enfant,” No. 10. 2 Manf., 442. Cowper, 591. To the introduction of such evidence, bills of exception were duly taken, and should prevail. 3. No evidence to estabbsh the illegitimacy.
    The reconciliation and co-habitation of the parents, after the alleged adultery, prevent all action on it now, or prejudice to the plaintiff. Fuero Real, lib. 4, t. 7,1. 5. Partidas 7, tit. 17, 11. 8, 9. Pand. lib. 48, tit. 5,1. 13, § 6, 9, and 10,. and 1. 40. Tenari Bibliotheca, verbo, “Adulterem.” Gomer Tauri, 1. 80, No. 71.
    The nuncupative will of the deceased is void, because not read by one of the witnesses, but by a third person, i. e. Judge Jones; and for other reasons, stated in the petition. C. C. 1574, 1575, 1576, 1642.
    The plaintiff is entitled to an undivided half of the estate of John Vernon, deceased, and to be paid for one half the services of the slave Bob, who has not been sold, and has been in the service of the defendants — his services being worth fifteen dollars per month — with costs.

      Jesse JR. Jones, for defendants contended:
    The plaintiff claims to be the legitimate son of John Vernon, deceased, and attempts to gain a standing as such by proof of the estimation in which he was held by the deceased, his family, and the world at large; but the testimony shows that he was declared by-deceased not to be his son; that the plaintiff acknowledged himself that he was not the reputed son of John Vernon, deceased; and that he was always considered illegitimate by the family and the world.
    It further appears by the evidence of John Dicks, the father-in-law of plaintiff, and the cousin of Mary Vernon, that John Vernon and Mary Vernon were married in the year 1790, in Orangeburgh, South Carolina; that she left him, without having any children, in the year 1793, and went to Kentucky and remained until the year 1800; that she then returned to South Carolina, and brought back two boys, Daniel and Philip ; that Daniel appeared to be about six years old, and Philip appeared to be about four years old. The facts detailed by this witness establish positively that at the time of the conception of Philip Vernon, the remoteness of the parties was such as to render their cohabitation physically impossible; consequently the plaintiff was an adulterous bastard, and incapable of inheriting.
    It is now the settled doctrine, both in England and the United States, that, although the birth of a child during wedlock raises a presumption that such child is legitimate, yet, that this presumption may be rebutted, both by direct and presumptive evidence. And in arriving at a conclusion upon this subject, the jury may not only take into their consideration proofs tending to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity by attending to the relative situation of the parties, their habits of life, the evidence of conduct, and of declarations connected with conduct, and to every induction which reason suggests for determining upon the probabilities of the case. See 4 Phillips on Evidence, 288. 2 Greenleaf on Evidence, secs. 150, 151. 1 Phillips on Evidence, note 379.
    The fact of non access may always lawfully be proved by means of such legal evidence as is strictly admissible in every other case where a physical fact is to be proved. 1 Phillips on evidence, 158, note 305. According to our code, the presumption of paternity as an incident to the marriage is at an end when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible. C. C. 208, 216.

      The only decisions on this subject which I have been able to find in our own reports are, Tate v. jPenn, 7 N. S. 548, and ELoi v. Macler, 1 R. R. 581. In these cases it is merely decided that the declarations of the parents cannot destroy the legitimacy of the child; and in the first mentioned case, that the fact of the husband residing in New Orleans and the wife on the opposite side of Lake Pontchartrain, distant about twenty-five miles, was not sufficient evidence of a physical impossibility of cohabitation. I do not consider that there is any thing in these decisions to show any variance between our jurisprudence and that of the other States of the Union, and of England on this subject. The same rules also prevail in France. 2 Toullier, Nos. 799, 820.
    The articles in the Civil Code which require the husband, when he intends to contest the legitimacy of the child, to do it in a certain time after the birth, can have no bearing on this case, for all these events occurred while John Vernon resided in South Carolina, and he never became subject to the Civil Code of Louisiana until the close of the year 1811, at which time the plaintiff was, according to the evidence, seventeen ■ or eighteen years of age, and had never pretended to be the legitimate son of John Vernon; was not so considered in the estimation of the family and community; and indeed never made any such claims until the petition in the present suit was filed.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit was instituted to set aside the last will of John Vernon, deceased; the plaintiff alleging himself to be the son and forced heir of the testator concurrently with the heirs of his deceased brother, Daniel Vernon. By the will the plaintiff was excluded from all share iu the succession, the testator declaring therein that John Vernon was his only legitimate child, and that the children of John were his sole legal heirs: these children were instituted his heirs, under the will, to the exclusion of all others.

The district judge was of opinion that the 'condition of the plaintiff, as heir of the testator, was disproved by its being established that he was the issue of an adulterous connection between Mary Vernon, the wife of John Vernon, the testator, and another person — having been born at a time when the distance of the husband and wife from each other rendered their cohabitation impossible. The plaintiff was non suited in the court below, and has taken this appeal.

If the plaintiff is not the legitimate son of the testator he has no interest in contesting the will. This question is therefore the first object of inquiry. The facts relating to the legitimacy of the plaintiff ar-e disclosed in the testimony of John Dicks, a witness examined on behalf of the defendants. Pie is the father-in-law of the plaintiff, and was the cousin of Mary Vernon, the mother of the plaintiff. By this testimony it appears that John Vernon and Mary Vernon were married about the year 1790, in Orangeburgh district in South Carolina, where they resided. In March, 1793, she abandoned her husband, and report said she went to Kentucky. She did not return until the fall of 1800. A report had reached the neighborhood that she desired to return, which originated in a letter written by her to that effect. By this letter it would appear that she was living under a feigned name, and that the man with whom she had abandoned her home had left her. She had no children during the period of her living with her husband, but after her return to Carolina in 1800 she again was absent with her brother, and brought back two children born during- her absence: these children were Daniel Vernon, whose heirs are the defendants, and Philip, whe is the plaintiff in this suit. The former was in appearance about six, and the latter about four years of age. After the return of the mother, the husband made repeated overtures for a reconciliation. She objected on the ground that she had misbehaved, and that it would always be thrown up to her, and that she could not live with him without her child. The parties met at the house of the sister of Vernon. He proposed their coming together. She said she could not live with him unless her child was received. Vernon said they had one between them, but that long before she had left him he had had an illegitimate child, named Jack, who was then in the neighborhood; that he was willing to take all the boys, Daniel, Philip and Jack, and bring them up as brothers and treat them as children, and that at his or his wife’s death they should share alike. His wife agreed to this ; they embraced, and the reconciliation was consummated, and they lived conjugally together until the death of Mrs. Vernon. The parents and children remained together in South Carolina until 1806. In 1810, the witness found them all living together on the Tanchipao, in this State; they eontiuned living together until the marriage of Daniel and Philip. At the death of Mrs. Vernon, John Vernon, the father, divided equally the property belonging to her between her sons Daniel and Philip. When Mrs. Vernon and her brother went after her children, they said they were going to Cumberland river; they were absent about five weeks. The witness and John Vernon lived close together in the same neighborhood in Carolina. Vernon did not leave at any time that section of country. Witness knows this fact from being intimate with him, and that he never left South Carolina until he removed from there in 1806.

The testimony of this witness, who" appears to be a conscientious and truthful man, is weakened or rather explained in his cross-examination, in which he says he has no personal knowledge of Mrs. Vernon having been in Kentucky. From all the witness knows, she might have been during her absence within fifty miles of John Vernon’s residence. He saw the latter two or three times every month during Mrs. Vernon’s absence ; thinks he was never longer than three weeks at any one time without seeing him; it may have been a month. The witness is satisfied, from his intimacy with Vernon, that had they ever met during her absence from 1793 to 1800 he, the witness, would have known it. We have thus stated the material parts of the testimony of this witness lor the purpose of showing its extent and its legal effect.

It is certainly proved that in 1793 Mrs. Vernon left the residence and neighborhood of her husband; but as to where she went there is no satisfactory evidence. Supposing she went to the region which the report stated, — to Kentucky, — to that part of it in which the Cumberland river has its source, and that John Vernon never left his neighborhood in South Carolina, it is obvious that these facts do not establish the impossibility of access and cohabitation of these parties. The evidence on this point is not at all satisfactory. There is no proof, other than that stated, as to where Mrs. Vernon went, or was at any time from 1793 to 1800.

It appears in evidence that Philip was brought up and married in the house of John Vernon, and was until his marriage on the same footing as Daniel. But John Vernon, in the significant language of the neighborhood, did not claim Philip as his son. This Philip himself said to a witness ; and it concurs with the declaration of the testator in his will.

The marriage of John Vernon with Mary, the mother of the plaintiff, in 1790, having been proved to have taken place in South Carolina, the argument has principally been directed to the status of the plaintiff under the jurisprudence of that State. Under our laws, as the case stands, the defendants would not be permitted to question the legitimacy of the plaintiff. Code, 209, 210, 211.

We assume that the rule established by the judges in the Banbury peerage case would control the condition of the plaintiff at the time of his birth. He was born during marriage; and the marriage having been proved, nothing is allowed to impugn his legitimacy, short of the proof of facts showing it to be impossible that the husband of his mother could be his father. The declarations of the father are entirely insufficient to bastardize the issue of the marriage, both by our law and that of England. Goodright v. Moses, Cowper’s Rep. 591. 2 Greenleafon Evidence, § 153.

We understand, that to rebut the presumption of legitimacy resulting from marriage, the evidence against it ought to be distinct, clear and conclusive. It is sufficient to state that the evidence adduced in this case is not of that character. It is at best, conjectural; and at this distance of time it would be equally unjust and dangerous to deprive a man of his status of legitimacy by any evidence short of that which the law and public policy require to be administered in order to destroy the effect of a civil institution upon which society rests for its security.

The plaintiff being therefore a competent party to contest the will of John Vernon, it remains to consider the objections to its validity. The most important is that the formalities of the article 1575 of the Code have not been complied with in making it. The will was intended to be a nuncupative will under private signature. The article 1575 requires this kind of testament to be read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator. The article 1588 provides that the formalities to which testaments are subject by the provisions of this section must be observed ; otherwise the testaments are null and void.

The will declares it to have been dictated by the testator and written by his request, and to have been read to him in the presence of the witnesses, but does not state that it was read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator. And it is not proved by the testimony taken in the cause that it was so read by the testator or one of the witnesses. Indeed, the testator was incapable of reading the will, and it was read by the professional gentleman who wrote it to the testator and the witnesses. This is the only reading of the will which is established by the testimony. We think this an essential requisite to the validity of the will. Succession of Key, 5 R. R. 483. It not having been complied with, the will is null and void.

It is therefore decreed, that the j udgment of the district court be reversed ; and it is further decreed, that the instrument of date the 17th day of January, 1847, purporting to be the last will and testament of John Vernon be declared null, void, and of no effect; and it is further decreed that the plaintiff, Philip Vernon, be admitted as one of the heirs of the deceased John Vernon, to share equally with the defendants, representing the deceased Daniel Vernon, and receive as heir one half of the effects of the succession of the deceased, and that the case be remanded for a partition of the same, and a settlement of the accounts thereof; the defendants paying costs in both courts.

Preston, J.,

dissenting. The plaintiff declares he is the legitimate son of John Vernon, deceased; and sues his grand-children, one of whom is his executor, to annul his will and for half his succession. They deny that he is the son of John Vernon.

The plaintiff very properly rests his case on sufficient proof of the fact that he was born of the wife of John Vernon during the existence of their marriage.

But one of his witnesses, Simeon C. Bankston, proves that he heal'd “ the old man say that he did not own Philip as his child ; that Philip himself said that the old man did not claim him, and that it was the general understanding in the neighborhood that Philip was not claimed by the old man Vernon as his child.”

John Dicks is the father-in-law of the plaintiff, and was also the cousin of his mother. There is not a shade of suspicion cast upon his testimony by the plaintiff. He had every possible motive to support his pretensions. His testimony must therefore be regarded as a severe sacrifice to truth and justice.

He proves that' Mrs. Vernon left her husband in South Carolina in March, 1793, and did not return until 1800 ; during which time her husband was not absent from his residence; that she left without children and returned with two, of whom plaintiff was the youngest. He then enters into details which show ^lly that Mrs. Vernon went to Kentucky and lived under an assumed name with a paramour, who abandoned her; when she returned to Carolina, and in the subsequent negotiation, by which her husband was reconciled to her, fully acknowledged that Philip was not his child.

This testimony establishes beyond all reasonable doubt that the husband had not access to his wife for seven years, during which time she had two children. The youngest could not therefore be the child of the husband.

The answer to hypothetical cross-interrogatories, so often put in cases of this kind, — for example, might not the husband and wife have come together without your knowledge ? — must always be the same which counsel, judges, or jurymen would give without the answer of the witness, and never has any effect upon the case, the court, or the jury.

John Vernon, at a great age, and on the brink of the grave, in the midst of infirmity, being blind, and having no motive to deceive, but every possible inducement to declare the truth, and not leave the world with the stain of falsehood on his soul, with regard to the only thing any longer of importance to him or those connected with him, made what was intended to be his last will, which was reduced to writing under his direction and signed before three neighbors and his legal adviser. Although informal as a will, it is a formal declaration of the truth. After appealing, as usual, to the name of God, he said, “ I now solemnly declare that Daniel =Vernon, now deceased, was my only legitimate child, and that his children are my only legal heirs.”

The plaintiff, pretending to be the son of the deceased for the purpose of claiming a portion of his properly, is compelled to stamp this solemn and, we may say, dying declaration of his supposed father with falsity. But it is impossible to yield to his pretensions to Vernon's property, based upon the stigma of him he calls father, unless compelled by irresistible proof or the inexorable rules of law.

There is not the slightest proof to counteract all this irresistible evidence of the plaintiff’s illegitimacy. Is it counteracted by law ? The principles of our Code which require the husband to denounce the infidelity of his wife, and judicially to bartardize her offspring are not applicable to the circumstances of this case, which occurred in South Carolina fifty years ago. They are rigorous principles of law requiring the husband and father to spread the shame of his wife and children on record, and thus to render reconciliation and forgiveness impossible, or to subject himself to the paternity of her spurious offspring. It is more conformable to the spirit of Christian forgiveness, if possible to be reconciled to a wife and mother of one’s children, even after the foul blot of her infidelity, as was done in the present case. These rules of our Civil Code should not be extended to a case which did not arise under them.

So the arbitrary rules of evidence which exclude the truth should not be extended beyond the positive enactments of law. There is no enactment of our own Legislature which excludes the acknowledgment of the plaintiff’s mother that he was not her husband’s child, and the most solemn written declarations of the husband to the same effect, as evidence in this case, in opposition to his claim as heir of tbe husband. On the contrary, the articles 214 and 215 of our Code authoi’izes every species of evidence, written or oral, in support of legitimate filiation; and the next article, 216, authorizes proof against legitimation, that “the plaintiff is not the child of the husband of his mother.” The article limits it to no particular species of evidence, and seems by its connection with the preceding articles, all are on one subject, to authorize all proof in opposition to legitimacy which could be offered in its support. The declarations of parents are the strongest evidence in support of legitimacy, and therefore should be admitted in opposition to it.

I am led to the conclusion from reading the opinion of Lord Mansfield, in the case of Goodright v. Moses, 2 Cowper’s Rep. 594, so much relied upon by the counsel of plaintiff, that such declarations are admissible as evidence to the jury n England. The rule that no evidence, except the impossibility of the husband’s access, should be admitted to establish the illegitimacy of a child born of the wife during the marriage has long since been abandoned in that country _

In the case of Goodright v. Saul a new trial was granted to prove a child illegitimate, his mother and her husband both living in London at his birth, because she lived with a paramour, called the child by his name, and it was reputed in the family to be illegitimate. 4 Durnf. and East. 358. The cases are numerous to that effect.

It is certainly laid down in general terms by Toullier, that the declarations of husband and wife shall not establish the illegitimacy of the wife’s child, born during the marriage : and our Supreme Court adopted the principle in the case of Tate v. Penn, to prevent the mother from reaping advantage from her shameless declaration.

But a note to the very section of Toullier furnishes a decision of the courts in France to the contrary, in the case of the illegitimate daughters of Antoine Lamarie. They were baptized by the mother as the children of Beancé, with whom she lived in adultery during Lamarié’s life. And after his death they failed in a suit to change the act of baptism and recover the succession of Lamarie.

The whole evidence was received by the district judge. He resided in the parish, knew the parties and witnesses, and on the question of fact decided against the plaintiff’s pretensions; and I think his judgment should prevail.


author: Seidell, J.

text:
    Thompson J. Bird et al. v. J. C. Cain et al.
    Where the garnishee had been served With the interrogatories, and the order of court requiring the same to he answered, and had been cited to answer the same, in default of which judgment pro confesso had been taken against him; in an action brought by him to annual the judgment upon the grounds, there was no legal citation and that the petition for the garnishment asked for no judgment against him: Held, there were no such errors in the form of the proceeding as to justify the annulment of the judgment,

      APPEAL from the District Court of East Baton Rouge, Burk, J.

      A. M. Dunn, for plaintiffs, contended:
    1. As Cain, in his petition, asked for no judgment, was it proper to render one ? 2. Should not the petition have notified them that Caz» sought to recover from them a judgment? He only demanded that they answer the interrogatories; and as they owed Hereford nothing, and no judgment was prayed for against them, they might well conclude that none was to be rendered. 3. No citation issued. The order accompanying the petition was to answer the interrogatories; they were not therein notified of the demand of $500 or any sum; they were not required to comply with any demand; neither is the order in any respect a citation ; it wants all the requisites. 4. Citation is the commencement of an action. An action of a suit and the judgment follows, and should be analogous to the prayer of the petition. Now, as there is no demand, no prayer in the petition or citation that these plaintiffs were to be condemned to pay severally $500, it certainly could not have been in the ordinary course of things. 5. But defendants says it was an extraordinary proceeding authorized by an act of the Legislature. I deny this proposition, for the act relied on expressly declares, verbatim, “ Plaintiffs in fi. fa. shall cause such third person to be cited to answer under oath,” &c., “in the same manner and with the same regulations as are provided in relation to garnishees in cases of attachment,” and “garnishees liability in the same manner as in cases of attachment.” 6. Art. 246 C. P. reads “A creditor may make a third person a party to the suit by having him cited, and he is termed the garnishee.” .
    In cases of attachment the law assuredly requires a citation, a copy of the petition, and a prayer for judgment, all duly and legally notified to the garnishee. The textual provision of the code is clear, and it would be very extraordinary in such a case to render a judgment when none was prayed for, or the demand notified to the party; then the act of the Legislature, instead of making a change in practice, expressly provides that the same manner, same regulations shall be observed in this summary proceeding. It confers upon the creditor, on the return of nulla bona, the right to sue a third person indebted; to sue by petition and citation in ordinary form, and not in a summary manner, loosing sight of all form and taking judgments not asked for. Any man might be deceived by such a proceeding.
    7. The nullity of a judgment can be demanded, if the defendant has not been legally cited. C. P. 604, 605, 606.
    In conclusion, the court will observe that the judgment appealed from is acquiesced in by plaintiffs; that all rights are resei’ved to Cain as of the date of his imperfect proceedings; that he can amend and these plaintiffs ruled to answer; he cannot suffer, and should not wish these plaintiffs to pay other men’s debts, at least without strict law, when they owe nothing.

      J. M. Brunot, for defendants, contended:
    This honorable court will see from the proceedings themselves, the garnishees have no right whatever to complain; they had not notice and ample time granted them to answer the plaintiffs interrogatories. There was no attempt to take any advantage whatever, and, as mere stakeholders, we cannot understand what right they have to complain that the original petition addressed to Hereford was not served on them. 14 L. R. 511. The garnishees could not open the judgment obtained by Cain v. Hereford,. We think, under the law as laid down in Lee and Hardy v. Palmer et al., 18 L. R. 411, this honorable court will reverse the judgment of the court below, annulling our judgment in the suit No. 203 against the garnishees, as being entirely unsupported either by the law or evidence. In the case just cited this honorable court remarks, “ we have noticed in a number of attachment cases that have come before us, that much of the litigation is to be traced to the garnishees, for what purpose is not difficult to discover.”
    In the case of Sturges v. Kendall, found in 2d Ann. 566, this honorable court will discover we have done more in the present instance than was required there, and it would seem strange, if the garnishees should be suffered to escape, where it is clear they have had eveiy chance to discharge themselves by obeying the order of the court, if in point of fact they had a valid defence.
   The judgment of the court was pronounced by

Seidell, J.

This is an action to annul a judgment obtained by Cain against Bird, Dawson and Scudder, under the following circumstances: In May, 1849, Cain obtained a judgment against Hereford, in a suit entitled Cain v. Hereford, for the sum of $500, interest and costs. A fieri facias was issued upon this judgment in October, 1849 ; and upon the 30th November, 1849, Cain filed a petition, entitled In the suit of Cain v. Hereford, and in the same court wherein the judgment had been rendered, in which he states that he has issued a fieri facias, that no property has been found by the sheriff, and that he has good reason to believe that Bird, Dawson, Scudder and Adams, are indebted to Hereford, and prays that they answer the following interrogatories: Interrogatory 1st. Are you liable to pay now, or at any time hereafter, any monies to the defendant Francis N. Hereford; and if yea, does said indebtedness amount to five hundred dollars, or any smaller or larger sum ? Please state amount. If said monies have been paid, when were they paid, and to whom ? Interrogatory 2d. Are you liable to the defendant for any property or effects of any nature or description whatever ? If yea, describe same and their value. Upon this petition the following order was made: “Ordered, the parties named in the foregoing petition and prayed to be held to answer interrogatories be served with same, and respond thereto under oath as prayed for, on or before the 15th day of December next, or show cause at the next term of our court why they should not be taken for confessed. November 30, 1849. (Signed,) J. J. Burk, Judge Sixth Judicial District.” Thereupon a citation was issued by the clerk of the following tenor: “Citation. State of Louisiana, Parish of East Baton Rouge, Sixth Judicial District Court, Clerk’s office. To Mr. John W. Dawson, Thompson J. Bird, Amos Adams, and John R. Scudder, residing in the parish of East Baton Rouge, greeting: You are hereby ordered to answer under oath, the interrogatories propounded to you and hereto annexed, on or before the 15th instant, or show cause at the next term of our said court why they should not be taken for conffessed. John C. Cain v. F. M. Hereford et al., garnishees. No. 208. Witness the honorable John J. Burk, Judge of our said Sixth Judicial District Court, this 3d December, A. D. 1849. M. Moreno, Clerk.”

Personal service of this citation, together with a certified copy of the petition of garnishment and interrogatories, was made upon each of the garnishees upon the 4th December, 1849. Adams answered the interrogatories. The others made no appearance. On the 9th January, 1850, being the third day of the next term of the court, a judgment by default was entered against Bird, Dawson and Scudder; and on the 14th January, at the same term, a final judgment was rendered, decreeing that the interrogatories be taken as confessed, and that the plaintiff recover of Bird, Dawson and Scudder, severally, the sum of $500, or such sum as may pay and satisfy the execution, not to exceed $500, issued on the judgment rendered in favor of Cain v. Hereford, and costs. Notice of this judgment was duly served upon each of them.

A fieri facias was issued upon this judgment against the three garnishees which has been enjoined in the present cause. A decree was rendered in the court below perpetuating the injunction, and declaring the judgment against the garnishees null and void. From this decree Cain has appealed.

In support of this decree it is urged, that Cain asked for no judgment in his petition of garnishment, but merely required Bird and the others to answer the interrogatories ; that the process issued has not the essential requisites of a citation ; that in proceedings under the act of 1839 citation is necessary; and that under the Code of Practice the nullity of a judgment may be demanded in an action of nullity, where the defendant has not been legally cited.

We are not prepared to say that there was such irregularity in the proceedings as would have enabled the garnishees to reverse the judgment rendered against them, if they had taken an appeal from that judgment. But without expressing an opinion upon that point, we conceive it to be clear that there was no such radical defect in those proceedings as would authorize them to proceed by action of nullity. Under the provisions of the Code of Practice, a party may be relieved from a judgment by an action of nullity, where there has been an utter absence of citation; and perhaps that remedy might extend to a case where the citation was so grossly defective as to justify the belief that the party to whom it was addressed was left in the dark as to when and where he was to appear and make defence. But we see no warrant in the code for extending the remedy by action of nullity to minor defects of form, where the party has been warned by such process as is here shown, emanating from a court of competent jurisdiction, seasonably and personally served upon him, to appear before such court at a certain day and answer in the cause. As to the .argument that no judgment was expressly demanded in the petition, it seems to us untenable. The petition sufficiently informed the appellees that the plaintiff was proceeding against them as garnishees for an amount of $500, and the order made upon it, of which a copy was served upon them, warned them of the creditor’s intention to take a judgment pro confesso, if the interrogatories were not answered. It is difficult to attribute the non-appearance of the garnishees to any other cause than either negligence, or an unwillingness to answer the interrogatories.

Being of opinion that there was no irregularity in the proceedings which can be reached by action of nullity, and that the parties should have sought relief, if any they were entitled to, by an appeal, the j udgment in this cause must be reversed.

It is therefore decreed, that the judgment be reversed; that the injunction be dissolved; that there be judgment in favor of the defendant; that the said defendant recover from the said Bird, Dawson and Scudder, and Charles Tessier, their surety, in solido, the sum of fifty dollars as extra interest and damages; and that the said plaintiffs pay the costs of this suit in both courts.


author: Preston, J.

text:
    Armstead G. Rhodes et al. v. S. Scholfield et al.
    Where two plaintiffs join in a suit and recover judgments in favor of each for less than three hundred dollars, but both judgments united exceeding three hundred dollars, the Supreme Court has jurisdiction of an appeal taken by the defendant.
    Where a judge holding a special court adjourned his court to the first day of the next regular term of the court, the time intervening between the adjournment and the next term is not considered as constituting judicial days, and a motion may be made for a new trial at the next term, provided three judicial days shall not have elapsed since the rendition of the judgment.
    Where the heirs or representatives of a deceased person pursue a suit which had been commenced by the deceased, it is considered rather as a new suit than as an amendment, and should be done by petition and citation, and an issue made upon the new pleadings before proceeding to trial.
    The silence of a party who happens to be in court during the absence of his counsel, wil! not be considered as implying the consent of the party to the proceedings, which may be carried on in his suit.
    APPEAL from the District Court of East Baton Rouge, Duffel, J.

      A. M. Dunn and Herron, for plaintiffs.

      T. (?. Morgan, for defendants,
   The judgment of the court was pronounced by

Preston, J.

The shei'iff of East Baton Rouge was about to sell under execution a number of horses, a stock of cattle, sheep and hogs, also a barouche, wagon and other personal property, which he had seized to satisfy a judgment obtained by Samuel Seholfleld, attorney of F. Dalton against Theodore Rhodes, Sarah Rhodes, and Dlihu Hooper.

The plaintiffs brought suit against the defendánts, each alleging that part of the property belonged to him, and claiming the value of their respective portions of it from the sheriff if he should sell it, being unable to give security to enjoin the sale. They fixed the value of their respective portions at two hundred and fifty dollars.

The sheriff proceeded to sell the property, and in answer to the suit, he and the plaintiff in the execution denied that the property belonged to the plaintiffs, alleging that it belonged to Theodore Rhodes, one of the defendants in the execution, and that he had made fraudulent sales of it to the plaintiffs, to protect it from the execution.

The cause was regularly assigned and fixed for trial, but was tried in the absence of the defendants’ counsel. Judgment was rendered against the sheriff for the amounts claimed, and was signed the same day.

A suggestion of the death of one of the plaintiffs was made on the day of the trial, and his heirs were made parties to the suit. It is to be observed that Sarah Rhodes, one of the defendants in the execution, was an heir of the deceased plaintiff, and with other heirs was made a plaintiff in the suit.

The sheriff applied for a new trial on the ground that new parties had been made on the day of the trial, and that the judgment was prematurely signed. The new trial was refused; he took a bill of exceptions setting forth the facts of the case, and has appealed.

The plaintiffs have moved to dismiss the appeal on the ground that there are two distinct judgments, each for two hundred and fifty dollars, over neither of which this court has jurisdiction. The defendant, however, has been condemned in one suit to pay five hundred dollars, which gives this court appellate jurisdiction.

It is said that the motion for a new trial was made three months after the judgment had been rendered and signed, and before a court that had no jurisdiction of the case.

The judgment was rendered by a judge of an adjoining district, holding a special court for the trial of cases in which the judge of the district was recused. He adjourned the special court he was holding, not sine die, but to the second Monday in Octobei-, 1850. There was nothing illegal in this. It was a matter within his discretion, which we are bound to believe he reasonably exercised, perhaps with a due regard to the business of his own district.

On the day to which the special court was adjourned, and within less than three judicial days after the rendition of the judgment, the defendant applied for a new trial, and the judge received and considei’ed the application notwithstanding the judgment had been signed. He thus repaired the error of signing the judg-* ment prematurely, and we have only to enquire whether the new trial should have been granted or not.

The late Supreme Court, in the case of Liquet’s Heirs v. Pierce, settled the practice in asimilar case as follows: “When heirs or representatives of a deceased suitor pursues an action already commenced by their ancestor, by reviving the judicial process, it may be considered rather in the nature of a new suit than an amendment to the pleadings in that previously commenced. The article 419 of the Code of Practice, relates solely to^amendments which may be permitted after^iSsue joined.

“ If the supplemental petition be viewed rather as á revival of the action (and in this manner we think it must be viewed,) than an amendment to the pleadings, the defendant, before he could be properly ruled to trial, ought to have been notified of the revival, either by service of the new petition and citation, or by direct and positive notice to the counsel, (if such would suffice,) in order to answer and plead de novo in such manner as thegcase might require.” -15 L. R. 361.

A supplemental petition should, therefore, have been filed in this case, and the defendants should have answered it before trial, to form a proper issue.

Ther^ is no doubt, that by consent appearing upon the record, new parties may be made by motion, and that in so consenting the opposite party might, in the case of heirs or representatives, acknowledge their capacity and waive an answer, but no such consent appears in this case.

It is said the defendant Morris was sheriff, and was in court when the new parties were made, and that his consent to make the parties and waive an answer must be presumed from his silence. It does not appear by the record that he was in court; and if he was, although silence may give consent in some matters, it does not, necessarily, in matters of litigation. Having employed counsel to defend him, it is more reasonable to presume, that if the sheriff was present, he remained silent, lest his unadvised action might compromit his rights.

It is not a sufficient reason'against reversing the judgment, as contended, that the evidence makes out the plaintiffs’ case. A very different case might have been presented, if the cause had on the trial been properly at issue, and defended by counsel. Indeed this case presents a striking example of the propriety of the practice established by the late Supreme Coui't. One of the heirs made a plaintiff was a defendant in the execution, and actually recovers the value of property seized and sold to pay her debts.

The delay which a reversal of the judgment, on what may turn out to be but form, occasions it to be regretted; but it has been caused by the heirs themselves in not promptly and properly becoming parties to the suit of the deceased and forcing an issue by citation and answer, or by judgment by default.

The judgment of the district court is reversed, a new trial granted, and the cause remanded; and the appellees are condemned to pay the costs of the appeal.


author: Smdell, J.

text:
    Brown v. Wright.
    In an action of slander, where the plaintiff has introduced evidence to prove the falsity of the charge, and the falsity of the declarations of the defendant as to the circumstances in support of the charge, the defendant is at liberty, in order to rehut the presumption of malice, even under the general issue, to introduce evidence to prove the truth of the charge and the truth of his declarations as to the circumstances on which the charge was made.
    from the District Court of West Feliciana, Stirling, J.

      C. Ratliff, for plaintiff.

      Brewer and Collins, for defendant.
   The judgment of the court was pronounced by

Smdell, J.

This is an action for slander. The slander alleged in the petition is the having falsely and maliciously asserted in conversations with third persons that the plaintiff had stolen fifty dollars. The defendant pleaded a general denial. There was a verdict in favor of the plaintiff for $5000, being the amount of damages claimed. In refusing an application for a new trial, the district judge stated that if the cause had been submitted to him without a jury he would have assessed the damages at a lower rate, but that he did not consider himself as having authority to disturb a verdict in such a case, unless the amount was beyond all reason; and as this court had power to reduce, he thought it proper to leave the defendant to an appeal, as the shortest and least expensive mode of terminating the litigation.

Two bills of exception were taken at the trial by the defendant. Before reciting them, it is proper to notice certain testimony which was before the jury, and the circumstances under which it was introduced.

The plaintiff had introduced a witness named West, who on his direct examination stated that the defendant, on the day after the money, a fifty dollar bank note, was missed, told him that he, the defendant, believed Brown had stolen it. Upon his cross-examination by the defendant, he testified that he asked the defendant what cause he had for suspecting Brown. He replied, among other things, that when the railroad cars arrived, on the evening of the disappearance of the bank note, he requested Brown to attend in his shop while he received some freight from the cars at the depot. He also stated that on that-evening Brown had stopped at the house of one Lemon, and there ate some honey with his gloves on, and that the stains of the honey were upon the bank note when subsequently found in the road by another person. This cross-examination took place without any objection on the part of the plaintiff. Afterwards, the plaintiff introduced the testimony of Lemon, which was offered, as is mentioned in the statement of facts prepared by the clerk, “for the purpose of showing that the statements made by defendant to the witness West, as drawn out on the cross-examination of the witness, were not true.” A witness was then offered by defendant and rejected; and the first bill of exceptions, which will be presently recited, was then taken. The plaintiff then introduced the testimony of another witness, one Robertson ; it being also noted on the clerk’s statement, “that the object of the testimony of this witness is to prove that the plaintiff Brown was not in the store at the time that the defendant Wright was receiving the goods at the depot, for the purpose of showing that the statement of Wright that he was there at that time and alone, made to the witness West, as stated in said witness’ cross-examination, was not true.” To the admission of Robertson’s testimony the second bill of exceptions was taken. The bills of exception are as follows:

1st. Bill. Be it remembered that on the trial of this cause, after evidence had been offered by the plaintiff to disprove the statements or declarations made by the defendant, as testified to by Wm. T. West, the defendant offered to prove by Wm. West and other witnesses that said statements were true; which testimony was objected to by the plaintiff, on the ground that no justification had been pleaded by defendant, and the objection sustained. Wherefore the defendant reserved this his bill of exceptions, and tendered the same for the signature of the court.

2d Bill. Be it remembered that on the trial of this cause, after the plaintiff had offered evidence to disprove the statements or declarations of the defendant, as testified by the witness W?n. West and other witnesses, that said statements or declarations were true, which evidence was objected to by the plaintiff, and the objection sustained by the court, the plaintiff then offered further to prove by the witness Robertson that said statements or declarations were untrue; to which the defendant objected, on the ground that the court had refused to permit the defendant to substantiate his statements or declarations after they had been attacked by the plaintiff, and that the plaintiff had no right to offer evidence to disprove matters which the defendant was prohibited, under the ruling of the court, to prove or substantiate. Which objections being overruled by the court, the defendant reserved this his bill of exceptions, and tendered the same for the signature of the court.

We think the court erred, and that its ruling may have operated injuriously upon the defendant’s case, and aggravated the estimate of damages made by the jury. If the statements referred to, and which the witness West was permitted to narrate without objection by the plaintiff, were true, the jury might have drawn from that evidence the inference that the defendant had made the charge under the influence of circumstances calculated to awaken his suspicions as to the plaintiff, and not in mere wantonness and malice; and if they drew such inference, it might and probably would have been with them a just reason for mitigating damages. But if, on the other hand, the jury believed from the testimony adduced by the plaintiff, and which the defendant was not permitted to contradict, that the defendants’s statements to West, above referred to, were false, it was a strong reason for inferring wanton and gross malice on the part of the defendant.

We find the following doctrines laid down by a learned author, in treating of the law of evidence in cases of libel and slander: “ In the defence of this action, under the general issue, the defendant may give in evidence any matter tending to deny or disprove any material allegations of the plaintiff: such as the speaking and publishing of the words, the malicious intention, or the injurious consequences resulting from the act complained of. If the plaintiff in proof of malice, relies upon the falsity of the charge, the defendant may rebut the inference by evidence of the truth of the charge, even under the general issue. Greenleaf on Evidence, vol. 2, § 421.

A fortiori, then, if the plaintiff undertakes to show that matters asserted by the defendant, as the grounds for his belief of the truth of the charge, were false, and thus to establish malice, the defendant should be permitted to rebut such testimony, and show the truth of such assertions in order to resist the inference of malice.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and the cause remanded for a new trial according to law; the plaintiff and appellee paying the costs of this appeal.