Bush v. Decuir

Spofford, J. It does not appear that any evidence in the power of the defendant was rejected in consequence of the disallowance of the amended answer. As the defendant herself insists that the nature of the defence could not have been altered by the amendment, and that the issue would be substantially the same, only more explicitly stated, we cannot see any good ground for remanding the cause in the fact that the proposed amendment was refused. The refusal of the District Judge to permit the plaintiff’s counsel to be ex amined as to his having been employed by Samuel Bush works no injury to the defendant. If the facts were as alleged in the bill of exceptions, they would not affect the merits' of the case. There was no error in the refusal of the Judge to hear testimony to the effect that Samuel Bush, in the ordinary transactions of life acted as (he plaintiff’s "agent. That could not have given him power, or furnished even presumptive evidence of a power, to accept donations or to make contracts of the nature sought to be established by the defendant. We.think the declarations of Jean Baptiste Deouir and his conversations with Bush out of the presence of plaintiff were improperly received as evidence for his universal heir, who in this suit occupies the position of Deouir himself. The interrogatory put by the plaintiff’s counsel in cross-examination merely opened the question of concubinage, but did not authorize the introduction of incompetent evidence upon that question. ■Rejécting the evidence that was improperly received, there is nothing in the defence upon the merits but the simple fact that the defendant’s ancestor once lived in concubinage with the plaintiff. By a positive provision of the Code that fact did not incapacitate him from making a donation inter vivos to her of movables not exceeding one-tenth part of the whole value of his estate. 0. 0., 1468. [504] The act of donation was most formal; it was absolute and irrevocable; it was of a sum of money not exceeding the limit prescribed in Article 1468; it was accepted by the plaintiff in a formal act, and the acceptance notified to the donor before his death. The suit is founded upon the act of donation, not upon the note; the donation was of a specific sum of money, not of the note ; that was given, as the act states, merely to facilitate the donee in disposing of the amount donated, should she wish to do so; she has not done so, but now sues for it, and we think the heir is bound by the act of her ancestor. Prescription had not accrued when citation was served upon the defendant, a married woman; service of citation, so as to interrupt prescription, could have been lawfully made upon either husband or wife. O. P., 192. The fact that the husband was not personally cited, and the wife not authorized to defend the suit until after the term of prescription pleaded had elapsed, did not destroy the effect of a legal service of citation upon the wife. O. 0., 3484, 3516. It is, therefore, ordered that the judgment of the District Court be reversed; it is further ordered, adjudged and decreed that the plaintiff recover of the defendant the sum of two thousand dollars, with eight per cent, interest thereon from the 31st March, 1849, until paid, and costs in both courts.