| La. | Apr 15, 1847
The judgment of the court was pronounced by
The plaintiff seeks the recovery of the amount of two promissory notes, drawn by John W. Brown, and endorsed by the plaintiff, both dated at Natchez, December 20,1836, one for $7,000, payable twelve months after date, and the other for $7,875, payable twenty-four months after date. He alleges that, these notes were given for the price of certain slaves sold by one Slaughter to Brown: That the notes not being paid at maturity, the plaintiff was sued as endorser by Slaughter, and compelled to pay their amount: That Brown died and left a child and a surviving wife, the defendant, now the wife of Steele: That she was in community with Bmen, aud by intermeddling with the community after his death, has made herself personally liable for his debts: That the child also died, and the mother has accepted its succession purely and simply: That Brown, in the year 1838, to screen his property and defraud his creditors, made simulated sales to Steele of certain slaves, being those sold by Slaughter, the said slaves, however, really remaining the secret property of Brown, judgment was asked against the widow Brown, for the amount of the sums thus paid by plaintiff as endorser, with interest and costs. It was also prayed that the sales of the slaves to Steele be annulled, and that they be decreed to be sold to satisfy the plaintiff’s claim. There was judgment for the plaintiff, and the defendants appealed.
Portions of these averments were mado by a supplemental petition; but we deem it unnecessary to consider any objections of form in that respect, 'as the defendants have not pressed a dismissal, but have asked that the cause be remanded for a new trial. There are bills of exceptions in the record which entitle them to this relief.
The court erred in admitting an account rendered, and a letter written to Groves by Bogart, his commission merchant, to prove certain payments to Slaughter, for account of Groves. Bogart was alive, and residing in the State. His testimony could have been procured.
In the answer it was pleaded, among other matters, that Groves had received from Brown a conveyance of a tract of land, which was made for the purpose of securing Groves on account of his liabilities as endorser for Brown, and that Groves was barred by the arrangement from recovering in the present suit. The deed from Brown to Groves was offered in evidence. It purported to be for a consideration of $13,200, paid by Groves to Brown in cash. In the inventory of Groves’s estate, these lands’ were inventoried as belonging to his sue.
We think he was clearly entitled to the benefit of such testimony, tie was a third person, nota party to, nor representing a party to, the act. The' declarations of Brown arid wife, made shortly before and after the sale to Steele, but out of Steele's presence, acknowledging the simulation, were admissible against Steele to prove fraud in the vendor. The defendant, Steele, might have asked the court to charge the jury as to the limited effect of this evidence, and its insufficiency in itself to- establish fraud in the vendee. The doctrine on this subjects more fully stated in Martin v. Reeves, 3 Mart. N. S. 24. See also Guidry v. Grivol, 2 Mart. N. S. 13.
The charge “ that the surety is not the creditor of the principal until he has paid the debt,” was calculated, in the form asked for, to mislead the jury, and was properly refused. If there' was simulation as alleged, it was a fraud upon Slaughter, then the crédito;1. That very fraud may have induced Slaughter to believe that it was useless to attack Brown, and have led him to pursue the endorser, Groves. Slaughter could have attacked the sale, for it was made while he was a creditor; and as the conditional liability of Groves existed at the date of the sale, it is just that when he subsequently was compelled to pay, he should be considered as standing in the place of Slaughter, and subrogated to his right to maintain this action. Civil Code, art. 2157.
A witness, the mother of Mrs. Brown, now the1 wife of Steele, living in the parish where the cause was tried, had been examined under commission, obtained upon the affidavit of the defendant Steele, that she was infirm and unable to attend the court. After her testimony had been taken under commission, a rule was taken, under the statute of 1839, upon the plaintiff, to show cause why the testimony should not be read. This rule was returnable on the same day that the cause was put on trial, and was made absolute, without opposition, before the trial commenced. It would have been a surprise upon the defendants to permit the plaintiff still to object to this testimony, upon the ground that the witness was really able to attend personally. We think, however, that at a future trial, the enquiry may be raised upon affidavit by the plaintiff, whether the infirmity and disability to attend still continues; and, if it should satisfactorily appear that the witness is still living in the parish and able to attend the trial, the testimony under commission should not be received. The privilege accorded by article 430 of the Code of Practice should not be extended beyond the fair intendment of the law. It is always desirable that witnesses should be seen and heard by the judge and jury, if possible, and especially in a controversy involving questions of fraud.
Objection was made to the competency of this witness, on the ground that she was the mother of Mrs. Steele. If such was the fact, she was incompetent to testify either for or against her daughter (Civil Code, art. 2260); but her testimony was admissible in favor of Steele. Her credibility, as affected by her connection with him, was a proper subject for the consideration of the jury. See 6 La. 74. 10 Mart. 554.