Guibert v. Herpin

3 Mart. (N.S.) 395

• Court: Supreme Court of Louisiana
• Decided: February 15, 1825
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. The defendant is sued for an amount of $338 which the plaintiff charges she gave him to defray the deceased's funeral expenses. He pleaded the general issue, and that if he did receive the money, he has a right to retain it for a debt due him by the deceased.

There was judgment for the plaintiff for $25, the court being of opinion he had received $208 only for the funeral expenses. The other $100 being paid him on account of his debt. He appealed.

The only question is whether the defendant, having proved that a much larger sum is due than the $125, there ought not to have been judgment in his favor.

In the present action the plaintiff had no need to call herself curatrix of the estate. She might have sued in her own right. Had she done so, it is clear her husband's debt could not have been pleaded as a set off.

Can it be shewn the cause of action arose after the husband's death? The parish judge correctly decided it could not; for it is only payable a pro rata of the funds of the estate, the curatrix cannot pay it, without payment being ordered contradictorily with the other creditors. It must be sued for, and liquidated by the court of probates. Were the defendant sued for a debt originating in the life time of the deceased, he might well contend that it had been extinguished de facto by the debt afterwards created by his debtor, or that the creditor was bound to allow as a set off, an earlier debt of his.

Moreau Lislet for the plaintiff, Grymes for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.