3 La. 74 | La. | 1831
delivered the opinion of the court,
'The plaintiff Celeste Dranguet, assisted by her husband, B. Dranguet, sues the defendant, to be relieved from a contract which she entered into with him ;• and to have the property, or its value restored' to her, which she has lost in consequence of the defendant having taken out an order of seizure and sale, and having sold effects belonging to her in part satisfaction of the debt, evidenced by that contract. There was judgment in her favor in the court of the first instance, and the defendant appealed.
The facts of the case are few, and free from controversy. The counsel for the appellant has correctly stated, that i offers only one question of law; and the objection made b; him on which that question arises, has been argued with an| ability highly satisfactory to the court.
The petition, after the usual allegations, and a special statement of the contract the plaintiff had made with the
The answer after a general denial, avers that in the absence of her husband, Benjamin Dranguet, Celeste Dranguet was legally authorised by the judge to contract.”
The question already alluded to, which the case presents, grows out of the pleadings. The plaintiff insists that she is not required to prove, she was not authorised. That the proposition is a negative one, which throws the burthen of proof on the defendant. He, on the contrary, denies the truth of the proposition in any case, and particularly combats its correctness, when applied to that now before the court. To strengthen the position taken by him, he has referred to the contract made by authentic act, in which the wife stated, “ that her husband was absent from the state, and that she was duly authorised by the parish judge to contract.” Counsel has referred us to 1 Starkie, 376. Febrero, part 2, liber 3, chapter 1, § 7, numbers 278 — ‘80, and 8 Touillier, page 19.
The first writer does not support the doctrine contended for. The second enounces principles very analagous to the rules of evidence which the law of England recognises on this point. But the latter goes the whole length of the proposition for which the advocate of the appellant contends. It is supported by that writer with his usual ability and learning, and we, who so often derive assistance from his opinions and researches, regret to find ourselves unable to concur with him on this question. It is impossible, we think, on examining what he has written on it, not to feel that the question is rather argued on one side, than examined on both, and then decided. This diminishes, in some manner, the weight due to it as authority. The doctrine for which he contends, though no doubt supported by some who have preceded him, is not that which has been generally received and acted on by courts of justice ; and when novelty reaches us through airy source, it must trust to its adoption, to the force of the
The error of the argument on the part of the appellant arises, we think, out of giving too much importance to the rule, that he who affirms should prove. That rule is certainly a valuable one; but it is valuable because in by far the . . greater number of instances, the anirmative contains an assertion that such a thing has existed, or that such an event has- taken place. But there is nothing in the general rule more than in any other, which should render legislators and courts of justice so particularly enamoured with it as not exceptions to it. It was framed like all other * rules of evidence with reference to the transactions of men, and the nature of things, , to assist in the investigation of truth; and whenever it is pushed to an extreme, which makes it defeat the object it has in view, the exception instantly arises out of the principle on which the rule was
But there are cases where the negative cannot be proved at „ . ° all, where not even presumptions can be obtained: and where the interrogatories, on which Touillier places so much importance, would be in vain administered to the adversary, , ’ What then " Are the legal rights which the law confers, to be sacrificed to the aphorism, that he who affirms must prove ? It is not more worthy of an enlightened legislation to suppose that the law did not intend so vain a thing as to recognise contracts as legal and binding which in the nature of things, could not, on the doctrine contended for, ever be proved. Several cases have suggested themselves to us in illustration of this principle, but as that now before the court is as striking a one as can be selected, it may be better taken than any other.
The law it is admitted, prohibits the wife from contracting, unless authorised by her husband or by the judge; and if she does contract without their permission or approbation she has a right to have the contract set aside. A case occurs
The appellee has required us to amend the judgment in his favor, but on looking into the evidence, we think the judge below decided correctly. She has also asked for damages by reason of the appeal being frivolous. We do not think this a case in which they should be accorded.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
After the foregoing opinion was delivered,
Rost, counsel for the defendant, presented a petition asking for a re-hearing of this cause.
The judges took the case under advisement, and during the term overruled the application for a re-hearing, and pro