McCrummen v. Stewart

4 La. 500

• Court: Supreme Court of Louisiana
• Decided: October 15, 1832
• Status: Published

Opinion

Porter, J.,

delivered the opinion of the court.

An injunction was obtained by the plaintiff on an allegation, that a judgement which the defendants had recovered against a firm, of which the plaintiff was a partner, had been paid. Issue was joined on this allegation, and two trials took place by a jury in the court below; in the first, the verdict sustained the fact of payment, but the court granted a new trial; and in the second, the jury, by their finding, negatived it. From a judgement rendered in conformity thereto, this appeal was taken.

The first question relates to the admissibility of an agent of the plaintiffs in execution, who was permitted to testify as to the amount actually received by him. It is objected he was interested, and was swearing to discharge himself. The . r . , ., . . competency of agents to give evidence in cases similar to this, has more than once arisen in this court; and we have held under authorities to be found in those countries from which we have taken our rules of evidence, that they were competent. See the case of Lane vs. Depuyster, 6 Mar. N. S. 372, and particularly that of the United States Bank vs. Johnson, 5 Mar. N. S. 310, in which this subject was fully examined.

On the merits, the evidence is contradictory. The agent swears positively, that only the sum of one thousand dollars was paid to him. Two other witnesses testify, they think they once saw a paper signed by the agent, in which it was stated the whole judgement was settled. I here are some other circumstances which appear in evidence, tending? though not strongly, to support the defence. Had the jury found differently from what they did, we should not have disturbed their verdict; and the case seems so equally balanced; that we think the same course must he pursued in relation to that, from which this appeal is taken.

Barry, for plaintiff. Riggi for defendant.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.