Suares v. His Creditors

Martin, J. delivered the opinion of the court. Fernandez, one of the creditors, appeals from a judgment overruling his opposition to the tableau of distribution, in which he contends, his claim ought to be placed as a privileged one, on the proceeds of the sale of a house surrendered by the insolvent. He urges he was the endorser of a note given by the insolvent, to Hunter & Fagan, in payment of -slates furnished and work performed in covering that house, and he was compelled tp pay said note, these endorsees having obtained judgment against him as the insolvent’s endorser, whereby he became subrogated to their claim. • It is clear, that if these facts be established, he is entitled on the tableau, to the place which his endorsees would have occupied had he not paid them. He has proved indeed, that his endorsees performed the work, and that he endorsed for the insolvent, a note, which he has since been compelled to pay to the slaters. But the evidence offered, to establish that the slaters received the note in payment of work and materials for the [342] house, is mere hearsay testimony. A witness swears, he jlearcj jjunter, Fagan, and the insolvent say, that this is the fact. But the unsworn declarations of Hunter & Fagan are no evidence against the syndics of the insolvent, neither are those of the insolvent, when it does not appear whether they were made before or after the cession, admitting that in either case they may be. The moral evidence is, however, so strong, that we think justice requires the case should be remanded. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and the case remanded for a new trial, the costs of the appeal being borne by the appellees.