Keys v. Powell

Bullard, J., delivered the opinion of the court. This case was before us at August term, 1834, (see 7 Louisiana Reports, 143) and was then remanded for a new trial. The appellant now relies on a bill of exceptions taken to the opinion of the court, overruling a motion for a continuance. The defendant moved for a postponement of the trial, on account of the absence of one of the subscribing witnesses to a bill of sale, under the ordinary mark of the vendor. The affidavit is in the usual form, and the defendant states on oath, that she expects to prove by the absent witness .that he was present when the vendor put his mark to the bill of sale, and that, in fact, it was executed in the state of Mississippi, although the instrument itself purports to have been executed in East Baton Róuge, and the reason for so dating it. The continuance was opposed, on the ground that no parole evidence could be received to establish the facts sought to be proved, inasmuch as it would go to contradict the written evidence. The continuance was refused, and a bill of exceptions taken. ^ bas keen Ul'ged by the appellees, that it is not competent to contradict the tenor of a written instrument, by showing that it was executed in a different place from the one at which it purports to have been passed, and that parole evidence of a sale of slaves by an instrument bearing only the ordinary mark of the vendor, is inadmissible, and that the witness, if present at the trial, could not have been examined ., . . X7[T r . . ,, . . _ . on Miat point. We are or opinion the court erred m refusing ^ continuance. The place at which an act was passed, is not essential, and the party might well show that the . . . . « r j b instrument was, in lact, executed at a different place, in order to rebut a presumption of forgery or perjury, arising from other circumstances in the case. A continuance should be granted on an affidavit, to obtain the testimony of a subscribing* witness, to show that the bill of sale under which the party claims was witnessed byhim,andexe-eufpiLe^tiom in the body of it. Whether effect can be given to a paper under the ordinary mark of a vendor of lands or slaves, or whether such can be in law regarded as written evidence, is a question which we do not consider it proper for us to decide upon, incidentally upon a mere motion for a continuance. That question must be reserved until the case stands for decision on it merits. For the purpose of showing by a subscribing witness that the bill of sale was signed by him as a witness, at a place different from that stated in the body of it, we think the trial ought to have been postponed. . * It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered, that the case be remanded for a new . , . , . . trial, the plaintiffs and appellees paying" the costs of this appeal.