vs. The defendant offered in evidence, the sheriff's deed of the Western Dist. sale of Peter, to John Sands, which was objected to by the August, 1834. plaintiffs' counsel, on the ground, that it did not appear to be KIMBALL'S HEIRS returned and recorded in the clerk's office, and because the LOPEZ'S HEIRS. judgment and execution, in virtue of which the sale was made, had not been previously shown by him; the court admitted the document in evidence as sufficient, upon which to found the plea of prescription. The plaintiffs' counsel took his bill of exceptions to the opinion of the court. The defendant, after the other evidence had been produced, and the testimony gone through on both sides, offered the record of the judgment and execution of Stewart vs. Kimball et als., under which the slave in contest was sold, which was objected and excepted to by the plaintiffs' counsel, as coming too late, but was admitted. The district judge considered the plaintiffs failed to make out their case, and gave judgment for the defendants, from which, after an unsuccessful motion for a new trial, the plaintiffs appealed. Turner, for the plaintiffs. R. & A. N. Ogden, for the defendants. Bullard, J., delivered the opinion of the court. When the record does not furnish a certifi cate either by the that it contains all the evidence The plaintiffs sue to recover a slave, which they claim as the property of their ancestors, in the possession of the defendants. The defendants plead title derived from one Sands, judge or clerk, who was cited in warranty, and whose title exhibited is a sheriff's deed, and the defendants further rely on prescription. on which the cause was tried, The transcript of the record does not furnish us a certificate nor a statement either by the judge or the clerk, that it contains all the evi- of facts, the case dence on which the cause was tried in the court below, nor mined on its merits; but the a statement of facts. We cannot, therefore, examine the court will decide case on its merits, but confine our attention to the questions of law, presented on the bill of exceptions in the record. In the progress of the trial, it appears that T. C. Stannard, record. was examined as a witness to prove, what proceedings took not be called as cannot be exa on the questions of law presented by the bills of exception in the A sheriff can vs. WESTERN DIST. place in execution of a fieri facias, by virtue of which the August, 1834. slave in question was sold. He had acted as deputy sheriff, KIMBALL'S HEIRS and the return on the execution was silent as to the sale, and LOPEZ'S HEIRS. indeed, stated that the execution had been stayed by order of witness to prove the District Court. His testimony was objected to, and a what proceedings took place bill of exceptions taken to its admission by the court. The court was clearly in error. The testimony went directly to made by him, when the return contradict the official returns of the officer, and to supply a ecution is silent, defect in the proceedings which can only be done by record Parole evidence is, in our opinion inadmissible to been stayed by supply so important a link in the chain of titles, as the adjudication of the property by the sheriff. at a certain sale made on the ex or stated that the execution had order of the District Court. Parole evidence is inadmissible to sup evidence. It is, therefore, ordered, adjudged and decreed, that the ply defects in the sheriff's re- judgment of the District Court be annulled and reversed, turn of proceed- that the case be remanded for a new trial, with directions to ings under an execution, or the district judge, not to admit parole evidence to contradict diets the official the return of the sheriff, nor to prove the adjudication of the property, and that the defendants pay the costs of the appeal. where it contra return of the officer. POND VS. HORTON. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE Where the record is not filed in the Supreme Court, on the return day thereof, and no application is made to the court for leave to file it after that day, the appeal will be dismissed on motion. In this case, the appeal was granted on the 27th November, 1833, returnable to the Supreme Court, at Baton Rouge, the first Monday in August, 1834. The first Monday was the third day of the month, and the appeal record was not filed, until the ninth day of the month. WESTERN DIST. The appeal was taken by the defendant and appellant. Andrews, for the plaintiff and appellee, moved to dismiss the appeal on the following grounds: 1. That the record was not filed on the return day thereof. 2. The transcript of the record, was filed with the clerk after the return day, without leave of the court, or showing cause why it was not sent up in time. 3. It appears from the sheriff's return, that a copy of a copy of the petition of appeal, was served on the appellee. 4. And should this motion be overruled, the appellee denies that there is error to the injury of the appellant; and further says, that the appeal is frivolous, and taken for delay; wherefore he prays the affirmance of the judgment below, with ten per cent. damages, and costs. Saunders, contra. Mathews, J., delivered the opinion of the court. August, 1834. POND VS. HORTON. Where the record is not filed In this case the appellee moves to dismiss the appeal, on the grounds, that the transcript of the record of proceedings in the Supreme was not filed in the Supreme Court, on the day of the return Court, on the return day thereof the appeal, as required by the 587th article of the Code of of, and no appliPractice and that no application was made to the court, for cation is made to leave to file it after that day, as prescribed by law. These we believe to be good grounds, in support of the the appeal will motion to dismiss. It is, therefore, ordered, that the appeal in this case be dismissed. 23 the court for leave to file it after that day, be dismissed on motion. WESTERN DIST. LOPEZ ET ALS. vs. BERGEL. LOPEZ ET ALS. VS. BERGEL. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE When the defendant suffers judgment by default, to be taken against him, it is a presumption, that by his silence, he acknowledges the justice of the plaintiffs' demand, Where the defendant does not deny the plaintiffs' debt, but lets judgment go by default, this fact will be considered as a corroborating circumstance, which taken with the testimony of one witness, is sufficient proof of the demand, to make such judgment final. The omission of the defendant, to deny the plaintiffs' capacity to sue, waives the right to do so, and dispenses him from the necessity of proving it, even when the demand is denied. The same consequence should follow, when there is a legal presumption of its justice being confessed. The defendant's acknowledgment, and promise to pay his note, before and after the lapse of five years from the time it became due, and before suit is brought, will take the case out of prescription, when the action would otherwise be barred. This is an action on a promissory note, executed by Gregorio Bergel, to the ancestor of the plaintiffs, the 22d August, 1825, for five hundred and thirteen dollars, payable one year after date, with interest, at the rate of ten per cent. per annum, from the time it became due, until paid. The suit was filed December 21st, 1833, and citation served the third day thereafter. The plaintiffs sue, as the widow and heirs of the obligee of the note, and pray judgment for the amount thereof, with interest. Judgment by default was rendered against the defendant, on the 7th January, 1834, and made final, after producing satisfactory proof of the demand, on the 17th of the same month, and signed on the 19th February following, without any appearance of the defendant. August, 1834. The plaintiffs called a single witness to prove their demand, WESTERN DIST. who testified, that he presented the note repeatedly to the defendant for payment, who always promised to pay it; that the first time he presented it, was in 1828, and at other times, every year thereafter. On the 13th June, 1834, the defendant obtained an order of appeal, to this term of the court (August, 1834). Lawrence & Winthrop for the defendant and appellant, urged the following points, in support of the case on the appeal : 1. There is no proof, that the plaintiffs possess the character in which they sue. They sue as the heirs and legal representatives of Lopez, which they specially set out and allege, and it is not seen why they should not be held to as strict proof of it, as if the defendant had denied it specially. 2. The Code of Practice requires, that to be entitled to a judgment by default, the plaintiff must prove his demand, which is required in all cases. Code of Practice, 312. 3. The execution of the note is not legally proved, according to the phraseology of the article of the Code of Practice referred to. When the law prescribes a particular mode of judicially investigating a fact, the judge is not at liberty to adopt a different course, and if he does, the fact will not be considered as proved. Code of Practice, 325. 4. The acknowledgment of the note, and promise to pay it, are not sufficiently proved. They should have been, either in writing, or have been evidenced by the testimony of one witness at least, with corroborating circumstances. 5. A contract for the payment of a sum exceeding five hundred dollars, must be proved by the testimony of one credible witness, and other corroborating circumstances. Pothier admits, that a verbal promise to pay, when the debt exceeds one hundred livres, is inadmissible, according to the ordinance of 1667, which requires such a promise to be in writing. Pothier on Obligations, No. 659. La. Code, 2257. 8 Martin, N. S. 457. 3 La. Reports, 213. 5 Ibid. 266. 6 Ibid. 525. LOPEZ ET ALS 08. BERGEL |