Dickson v. Melville

7 La. Ann. 490

• Court: Supreme Court of Louisiana
• Decided: June 15, 1852
• Status: Published

Opinions

By the court: (Preston, J., dissenting.)

Szmzdzsm,, J.

We concur in the conclusion of the district judge, as to the insufficiency of the power of attorney.

Judgment affirmed, with costs.

The following is the judgment of the district court, J. N. Lea, J. “ This case is presented upon the rule taken herein, on the 11th July, 1851, upon W. E. Camp, as agent of David Melville, made garnishee herein, to show cause why said Melville should not be condemned to pay the whole amount of the judgment rendered against the defendant, with costs, on the ground, that the answers of the said garnishee, through his said agent, are in part not categorical, but evasive; and, further, that they show that, at the time of the attachment, he had in his hands sufficient funds of the defendant, to pay the amount of the plaintiff’s claim.

“ The issue presented in this rule, does not differ materially from that which was formerly taken in this case, on the 11th December, 1850, and was passed upon by a judgment of this court, rendered on the 23d December, 1850. It is to be observed, that in this rule, as in the former one, no traverse to the alleged answers of the garnishee is made. The plaintiff does not seek to obtain a judgment, by introducing evidence to show that the answers are not time, or that Melville had in his hands a sufficient amount-óf funds to meet the plaintiff's claim. The plaintiff looks t,o the answers themselves, as the basis of his application for a judgment against Melville.

“ In the reasons for judgment, rendered upon the rule, taken on the 11th December, 1850, it was considered, that there was no sufficient proof of Camp's agency, to justify the court in rendering a judgment against Melville ; that the power to acknowledge a debt, must be express and special.

“ On the trial of this rule, a power of attorney from Melville to Camp, was filed in evidence, which was executed prior to the date of the attachment issued herein. This power of attorney, as I construe its provisions, confers certain general and special powers of administration. It does not, however, authorize the agent to acknowledge a debt on behalf of his principal, except by way of compromise or adjustment.”

Eüstis, C. J.

The power of answering interrogatories on oath, we do not think can be conferred by one person on another.

Rost, J., concurred with the Chief Justice.