Brent v. Slack

Garland, J. The plaintiff sues for a sum of $1,895 50, with interest, alleged to have been received for him by the defendant’s testator, in the year 1836, for which it is said he never accounted, although more than seven years had elapsed when the claim was set up. A judgment by default was taken, which was set aside by the defendant’s filing an answer, containing a general denial, and a plea of prescription. On the trial, 372 the suit was dismissed, the judge giving as a reason, the absence of any proof of the claim ever having been presented to the executor for his approval or rejection, previous to a suit being' brought. Code of Practice, art. 984. Both parties moved for a new trial, which was refused, and the plaintiff has appealed. The reason given by the judge of the Probate Court for his judgment, has principally occupied the attention of the counsel in this court, and in their zeal, on the one side, to prove that it is not a good reason, and that such an objection cannot be interposed in the present state of the pleadings, and, on the other, that it is sufficient, and can be urged, as the case is presented, both parties have overlooked the testimony. An examination of it proves the correctness of the judgment, although the court does not refer to it. The allegation is, that the testator of defendant» who lived in the same parish with the plaintiff, in the year 1836, received of the factors of the latter in New Orleans, #1,895 50, to be delivered to him, which he never did deliver, or account for in any manner. About seven years elapsed from the date of the alleged receipt of the money, and the time when the succession was opened by the defendant’s qualifying as executor, and no demand of the money is proved during all that time, nor that any effort was made to recover it. The delivery of the money to E. Slack, deceased, is only proved by one witness, which is clearly insufficient, the demand exceeding five hundred dollars. That witness is one of the factors said to have given the money to the testator. His testimony is general and indefinite, and not sustained by any corroborating circumstances. The lapse of time, and the character of the demand, make us suspicious of the claim, which needs explanation. Judgment affirmed.