Lambert v. His Creditors

2 Rob. 474 | La. | 1842

Martin, J. Bowman,

one of the creditors, is appellant from a judgment overruling his opposition to the claim of the insolvent’s wife to the sum of $1195 15, on the ground of collusion between her and her husband, and on an allegation that she brought nothing in marriage. Her marriage contract attests, that a sum of $2000 in current money was received by the husband in the presence of the notary and the underwritten witnesses, proceeding from her gains and economy, and brought by her in marriage as part of her dot. The appellant’s counsel has contended, that the fact of the two thousand dollars proceeding from her gains and economy, does not establish that the money which the notary and witnesses attest that they saw her pay, was her own ; that her declaration of the manner in which she obtained it, is no evidence against the creditors, -as she might have borrowed it even from one of the witnesses, who, without losing sight of it, might have regained possession as soon as he and the parties left the notary?s office. All this is very true. The first judge concluded that the attestation in the marriage contract, that the two thousand dollars were paid by the wife to the husband in his presence and that of the witnesses, is prima facie evidence of its having been legally paid, and that, no proof to the contrary having been offered, her claim must be sustained. The attestation of the notary that payment had been made in his presence and that of the witnesses, is the best evidence of which the payment is susceptible. None higher can or need be adduced. It is, indeed, susceptible of being rebutted, as by evidence of possession of the money having been momentarily obtained, and of its having been immediately after the act repaid by the husband to the lender, as urged by the appellant’s counsel; but the record affords not a tittle of evidence from which this may be suspected in the present case.

Judgment affirmed.