15 La. 42 | La. | 1840
delivered the opinion of the court.
This case was before us at a former term, and was then remanded for a new trial. (See 10 Louisiana Reports.) The result was a second verdict for the plaintiffs, which was set
A bill of exceptions, to which our attention has been drawn, shows, that on the last trial the plaintiffs offered Joseph Taquino as a witness, to prove that he had frequently presented the nóte on which the judgment was rendered against Gregorio Berghel, who had always acknowledged it to be his note, and promised to pay it; and that these acknowledgments and promises were made at different times, within five years from its maturity, to wit, in 1828, and afterwards and before the said Gregorio Berghel sold the property in question. That these acknowledgments and promises were made in presence of the defendant. The plaintiffs offered to prove further, by said witness, that the consideration of the note was á loan to Manuel Lopez. But evidence of these acknowledgments and promises was rejected, on the ground that the pote was not first proved. Whereupon the plaintiffs’ counsel offered the note in evidence, but its introduction was opposed, on the ground that there was a subscribing witness, whose signature should be proved. The plaintiffs then offered to prove the signature of the subscribing witness, by G. Berghel, who, on his voire dire stated, that he was the brother of the witness, and son of the defendant, whereupon he was objected to by this defendant as incompetent. It appears, that the subscribing witness was the son of the defendant, and the reputed son of the maker of the note, G. Berghel.
It is necessary to premise, that this court held, on the former appeal, that the defendant had a right to controvert the plaintiff’s demand against her vendor, and even to avail herself of the same defence, which he had in vain set up. The answer of the defendant, among other things, denied that Berghel was in any manner indebted to the plaintiffs ; and alleged that the note was prescribed ; that no consideration was given, and that Berghel did not execute the note, and was in no measure liable to pay the same. There is a further plea of a prescription of three years.
We are of opinion the court erred in rejecting the evidence offered to prove the execution of the note by the repeated acknowledgments of Berghel. The note was signed by an ordinary mark, and attested by a witness, who was incompetent to testify in the case from his relationship to one or both of the parties. The evidence offered would have been better than the proof of the signature of the subscribing witness to an ordinary mark.
The case of Plicque et al. vs. La Branche, 11 Louisiana , .i i * Reports, relied on by the defendant, was quite different from this. In that case, the signature was expressly alleged to have been forged and counterfeited, and we held, that evidence of acknowledgments was not sufficient. The proof offered in this case goes to show, that the defendant’s vendor was indebted to the plaintiffs, at the time of the sale, by note, apparently prescribed, but which he had repeatedly admitted was still due, and promised to pay.
We have been asked to render a final judgment upon the evidence given on a former trial. This we think cannot be done. The statement of facts does not show that the same evidence was given on the last trial, and the case must go back for trial before another jury.
We are also of opinion, that the evidence of a witness since deceased, taken down in writing on a former trial, is admisoihip SIUle>
It is, therefore, ordered and decreed, that the judgment of the District Court be reversed; that the case be remanded for a new trial, with instructions to the jury not to refuse to admit evidence of the repeated acknowledgments of G. Berghel, as set forth in the bill of exceptions, and that the appellee pay the costs of this appeal.