Dwight v. Smith

Bullard, J. This is an action against the tutor of certain minors, to recover an amount alleged to be due to the plaintiff’s insolvent, for board, lodging, tuition and money paid for them according to the account annexed to the petition. The defendant first answered by a general denial, and then answered that33 Roberts, the insolvent, had no such claim as the one sued on, never placed it on his schedule when he made his surrender, and that consequently the plaintiff has no right to sue for it, nor for any debts not placed on said schedule. The plaintiff is appellant from a judgment of dismissal. The plaintiff relies for a reversal of the judgment, upon a bill of exceptions, from which it appears: first, that on the trial the judge refused to order an attachment to issue to bring into court as witnesses for the plaintiff, the minors, whose tutor was the defendant in the case, upon showing a return upon a subpoena served on them; and secondly, that he rejected several witnesses brought forward, by the plaintiff to prove the account sued upon, on the ground that evidence of the account was inadmissible, because it was not placed on the schedule of the property surrendered by the insolvent, and that it was going beyond an item placed on the said schedule on account of schooling. In our opinion the judge did not err in refusing the attachment. The minors, though represented by their tutor, were substantially parties to the suit; and although in general a witness may be called to testify against his interest, yet we think that parties cannot be examined as witnesses in the ordinary form. But the court, in our opinion, erred, in refusing to admit evidence in support of the account sued on. Whether the claim was, or was not on the schedule, is of little importance. If it was in point of fact a debt due to the insolvent, it passed by the surrender to his creditors, together with all his other property or effects, whether mentioned or not, in the schedule. 11 La. 531. 12 La. 109. 2 Rob. 133. Nor does the second objection appear to its to have any force. The item on the schedule relating to schooling, does not, in terms, apply to the defendant’s pupils, but is general, as an amount of $300 due “ on account book of my school.” The two charges are not inconsistent with each other. It is, therefore, adjudged and decreed, that the judgment of the Court of Probates be reversed, and thatthe case be remand [34] ed, with directions to the judge not to reject any legal evidence in support of the account sued on ; and that defendant pay the costs of this appeal.