WESTERN DIST. BRUMGARD vs. ANDERSON. Where wit on their voir are and believe in terested in the want of the suit, they are incompetent to testify. in opposition to the affidavit, to throw on the plaintiff the burden of proving its verity. This he has attempted to do, by two witnesses; the rejection of whom by the court, on the score of interest, has been the occasion of two bills of exceptions which are to be found in the record. It appears that both witnesses, when examined on their voir dire, declared nesses declare that they were, and believed themselves to be interested in dire that they the suit. This surely rendered them incompetent to testify. themselves But the plaintiff offered to prove that one of the two witnesses rejected, John M. Perry, was not interested. We think that the judge did not err in refusing to admit this testimony. John M. Perry disclosed the grounds of his belief: He states that a part of the property attached was sold by him to his son, L. P. Perry, (one of defendant's vendors) for the purpose of securing the payment of certain debts, for which he (witness) was and still is responsible; and that his son has assumed the payment of those debts. That, as the agent of his son, he has taken an attachment against the same property in the hands of the defendant; and that the writ has issued upon his own affidavit, as agent of his son. These facts, independent of the witnesses' belief, would have sufficed, perhaps, to exclude his testimony; but when coupied with the declaration made by the witness, that he believed himself interested, they fully justify the decision of the judge a quo. Under this view of the case, we have not found it necessary to inquire into the alleged irregularities which form the other grounds urged below, by the defendant, to set aside the attachment. It is, therefore, ordered, that the judgment appealed from be affirmed, with costs. WESTERN DIST. BROWN'S EXECUTOR vs. WILLIAMS ET AL. BROWN'S CUTOR 28. EXE WILLIAMS ET AL. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF OUACHITA. Parole evidence will not be received to show that an executor continued to act as such, after the expiration of the year for which he was appointed. The 7th section of the act approved March 13, 1837, continuing the execu torship, only applies to such executors as were in the legal exercise of their functions at the time of its promulgation, or those appointed afterwards. This case was formerly before this court, and remanded to inquire into the fact of the existence of the executorship, at the time of his appearance as such in this case. See 12 Louisiana Reports, 613. The judge of probates decided, after hearing the evidence, that Isaac T. Preston was not executor of James Brown, deceased, at the time of filing his petition of appeal, his term having expired. The executor again appealed. Downes, for the appellant, submitted the case. M'Guire, contra. Garland, J., delivered the opinion of the court. Isaiah Garret filed his petition in the probate court, alleging that he had become the purchaser, at a probate sale made on the 20th July, 1836, of two tracts of land, composing a portion of the vacant estate of James Brown, deceased, and asked for a monition in compliance with the provisions of the act of the legislature, approved March 10th, 1834. On the 23d October, 1836, a judgment of homologation was rendered, no opposition having been previously filed. On the 23d August, 1837, Isaac T. Preston alleging himself to be the executor of James Brown, deceased, whose succession it is said was opened in the parish of Orleans, presented his that on October, 1840. BROWN'S EXEC UTOR vs. Parole evidence petition, asking an appeal from the aforesaid judgment. In WESTErn Dist. this court it was denied that Preston was executor, and the case was remanded to ascertain that fact. It appears the 11th July, 1835, Preston was appointed executor, in NewOrleans, and as the law then existed, his functions continued WILLIAMS ET AL. for one year only, Louisiana Code, article 1666. He did not apply to be continued in his functions, and took this appeal more than thirteen months after they had ceased. It is contended in this court, that Preston continued to act as execu- will not be retor, but of that we have no legal evidence, and think the ceived to show probate judge did not err in rejecting parole proof to show he continued to act did. He was authorized by law to continue the prosecution expiration of the or defence of any suits commenced during the year of his exe- year for which cutorship, Louisiana Code, article 1669; but that authority pointed. does not extend to new cases. The petition in this case, was filed, July 23, 1836, more than one year after the date of the letter testamentary. Had Preston been a party to this proceeding, previous to the expiration of the year, there is no doubt he could have taken this appeal. that an executor as such, after the he was executors ap But it is alleged, that the 7th section of an act of the legislature, in relation to voluntary surrenders and the settlement of successions, approved March 13, 1837, continued the executorship. We are of opinion that law applies only to The 7th secsuch executors, administrators or syndics, as were in the legal tion of the act exercise of their functions, at the time of the promulgation of 13th, 1837, conapproved March the act, or appointed afterwards. The act does not revive tinuing the executorship, only any defunct representatives of successions. It has been urged applies to such that if this appeal is not maintained, the estate of Brown is were in the legal without remedy, and the spectacle is presented of a succes- functions, at the sion administered in one parish by a curator, and in another time of its promulgation, by a testamentary executor. It is not established that an those appointed afterwards. appeal is the sole remedy, and what it is, will be time enough for us to decide when the case shall be presented. As the case now stands, we are satisfied Preston had no right to take an appeal at the time he did, and, therefore, dismiss it with costs. as exercise of their or LAMBETH & THOMPSON vs. DOSSON AND LOVELACE. APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, FOR THE PARISH OF Evidence should be admitted on the trial, of an exception that one of the This is an action against the defendants as joint and several obligors in a promissory note; they with one S. W. M'Clure having all signed. The note is payable to the order of the plaintiffs at Harrisonburg, in the parish of Catahoula, where the defendants reside. The defendants failed to put in any answer; but at the trial filed an exception by counsel, averring that they had not been legally cited or served with a true copy of the petition. They offered the clerk and sheriff to show that the paper purporting to be a copy, was the only copy of the petition served on Dosson, and that it was not a true copy. The testimony was refused and the defendants' counsel excepted to the opinion of the court. This copy differs from the original petition in this: The latter reads "that the said note has often been demanded of the said defendants [at Harrisonburg, and of the defendants at other places and times."] The copy reads, "that said note has often been demanded of the said defendants [personally, and at other places and times."] There was judgment against both defendants, and they appealed. The clerk certifies that the record contains all the documents on file and proceedings in the case, but omits that it contains all the evidence adduced. Copley and Downes, for the plaintiffs. Mayo, for the defendants. Martin, J., delivered the opinion of the court. This case is before us on a bill of exception, taken by the defendants to the refusal of the judge to receive the testimo October, 1840. V8. ny of the clerk and sheriff, to support the exception they had WESTERN DIST filed, alleging that one of them had not been served with a true and correct copy of the petition; it being stated in the SEXTON ET UL petition, that payment of the note sued on "had been demanded of said defendants [at Harrisonburg, and of the defendants at other places and times;"] while in the copy, it states only that the note had been demanded of the said defendants, ["personally at other places and times."] There was judgment against both defendants, and they appealed. The District Court, in our opinion, erred in refusing to receive testimony of the fact on which the defendant bases his bill of exception. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as to the defendant Dosson, be annulled and reversed, and that the case be remanded for a new trial, with directions to admit the testimony mentioned in the bill of exceptions; the plaintiffs and appellees paying the costs of the appeal, and that as to the defendant Lovelace, the judgment be affirmed, with costs and ten per cent. damages. BROCK. SEXTON ET UX. vs. BROCK. APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF Judgment entered by consent of both parties, reversing the judgment appealed from and remanding the case for a new trial. This suit was for a tract of land, alleged to have been wrongfully taken possession of by the defendant. The plaintiff had judgment decreeing her the land, and one thousand 'six hundred dollars, for the use of it, and the defendant appealed. |