10 La. 356 | La. | 1836
delivered the opinion of the court.
The appellee opposed the tableau filed by the administrators, on the ground, principally, that he had not been placed on it as a creditor for about two thousand dollars, balance of accounts, and for fourteen hundred and eighty-five dollars and fifteen cents, by note, with interest at ten per cent., dated 7th September, 1831., The administrator put in an answer, containing the general denial, and he is appellant from a judgment by which the opposition was sustained.
The evidence makes it clear, that while the note which bore interest at ten per cent, was due, Pargoud received about eleven hundred dollars, the proceeds of cotton of the deceased, sold in New-Orleans. That amount ought to have been imputed to the note, which was not only the most onerous but was in fact the only debt due at that time. That sum, together with the payments made by the representatives of the estate, since the death of the debtor, as shown in the record, nearly extinguished the note of the 7th September, 1831. 1
„ , . , ,, , , . , 13 ut the opponent credited the open account with the proceeds of the cotton. This we think he could not do, and that the court erred in sustaining his pretensions.
It only remains to inquire, whether the opponent has proved his account by sufficient evidence. It appears, that
' court below did not err, in our opinion, in disregarding the exception as to the mode of proceeding in the shape of .. . , . . , an opposition, instead of instituting a separate suit, the administrator having pleaded the general issue, and the evidence was properly admitted. 1 1 *
R is,' therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed; J ° * . . and proceeding to render such judgment, as ought m our opinion to have been given below, it is further adjudged and decreed, that the opponent be placed on the tableau as a simple creditor, for the sum of three thousand three hundred and forty dollars and twenty-three cents, to be paid in due course of administration, with interest at five per cent., if there be sufficient funds to authorize it; that his opposition, so far as relates to the note of the 7th September, 1831, be rejected, and the note cancelled, that the claim of the estate of Jeremiah Griffing be disallowed and rejected, and that the tableau, as thus amended, be homologated; the costs of the Court of Probates to be paid by the estate, and those of the appeal by the appellee.
Bullard, J., delivered the opinion of the court.
We are satisfied, on the re-hearing in this case, that the judgment first pronounced was erroneous, in rejecting in toto the claim of the opponent for the note of the deceased; that the judgment is therefore set aside, and the following pronounced in lieu of it:
