McIlvaine v. Franklin

Supreme Court of Louisiana

McIlvaine v. Franklin

2 La. Ann. 622

DecidedJune 15, 1847

StatusPublished

This text of 2 La. Ann. 622 (McIlvaine v. Franklin) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McIlvaine v. Franklin, 2 La. Ann. 622 (La. 1847).

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Opinion

The judgment of tb© court was pronounced ¡by

Slidell, J.

*

The plaintiffs allege that the defendant was a member of the commercial firm of Franklin 8f Routh, and as such liable to them, in solido, for the price of certain merchandise sold in Kentucky to the partnership, acting by Routh on its account. At the trial of the icause the testimony of Routh was offered in evidence, topro.ve the sale of the merchandise to Routh, in Routh’s name, the existence of the partnership, that the purchase was made for the use of the partnership, and that the partnership received .and used the goods. The defendant excepted to the competency of Routh to prove the partnership; and the court below rejected so much of the testimony as went to prove the existence of the partnership. Without the testimony of Routh there is no evidence of the existence of the partnership. A judgment of nomsuit was rendered.

We think the court below did not err in sustaining the exception. It was the interest of .the witness to charge the defendant in this suit, by testifying in favor of the party calling him. The point is one which has been much discussed, but the weight of authority is against the competency. See the cases of Marquand v. Webb, 16 Johnson, 89. Columbian Manufac. Co.v. Dutch, 13 Pick. 128. Purviance v. Dryden, 3 Sug. & Rawle, 402. 2 De Saussure, 43. The doctrine is not peculiar to american courts, but is supported by the english authorities.

It is said by the plaintiffs that the defendant had lost the right of excepting at the trial to the testimony of Routh, because he did not make the specific objection when the intei'rogatories were served upon him, preparatory to the execution of the commission. The defendant declined propounding cross-interrogatories, writing at the foot of plaintiff’s interrogatories “ legal objections reserved.” We deem this reservation sufficient to authorise the specific exception at the trial. Such, we believe, has been the general understanding of the bar; and we are not aware of any provision in the Code of Practice, nor of any authority, to the contrary. Judgment affirmed.

JSustis, C. J„ did not sit In this case, having been of counsel.

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Slidell, J.

*

The plaintiffs allege that the defendant was a member of the commercial firm of Franklin 8f Routh, and as such liable to them, in solido, for the price of certain merchandise sold in Kentucky to the partnership, acting by Routh on its account. At the trial of the icause the testimony of Routh was offered in evidence, topro.ve the sale of the merchandise to Routh, in Routh’s name, the existence of the partnership, that the purchase was made for the use of the partnership, and that the partnership received .and used the goods. The defendant excepted to the competency of Routh to prove the partnership; and the court below rejected so much of the testimony as went to prove the existence of the partnership. Without the testimony of Routh there is no evidence of the existence of the partnership. A judgment of nomsuit was rendered.

We think the court below did not err in sustaining the exception. It was the interest of .the witness to charge the defendant in this suit, by testifying in favor of the party calling him. The point is one which has been much discussed, but the weight of authority is against the competency. See the cases of Marquand v. Webb, 16 Johnson, 89. Columbian Manufac. Co.v. Dutch, 13 Pick. 128. Purviance v. Dryden, 3 Sug. & Rawle, 402. 2 De Saussure, 43. The doctrine is not peculiar to american courts, but is supported by the english authorities.

It is said by the plaintiffs that the defendant had lost the right of excepting at the trial to the testimony of Routh, because he did not make the specific objection when the intei'rogatories were served upon him, preparatory to the execution of the commission. The defendant declined propounding cross-interrogatories, writing at the foot of plaintiff’s interrogatories “ legal objections reserved.” We deem this reservation sufficient to authorise the specific exception at the trial. Such, we believe, has been the general understanding of the bar; and we are not aware of any provision in the Code of Practice, nor of any authority, to the contrary. Judgment affirmed.

JSustis, C. J„ did not sit In this case, having been of counsel.

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Bluebook (online)

2 La. Ann. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcilvaine-v-franklin-la-1847.