Peck v. Dwight

Supreme Court of Louisiana

Peck v. Dwight

8 La. Ann. 449

DecidedSeptember 15, 1853

StatusPublished

This text of 8 La. Ann. 449 (Peck v. Dwight) 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

Peck v. Dwight, 8 La. Ann. 449 (La. 1853).

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Opinions

Ogden, J.

I think this case should be remanded, with directions to the Court below to receive the testimony of William Sharp. The objection made to his testimony, on the ground of interest, in my opinion, cannot be sustained. He swears against his own interest by fixing upon himself the liability for the plaintiff’s claim, so that he will be bound, in any event, to pay the amount in controversy. I do not see how he could be made liable for the costs of the present suit, no matter in which way it is decided. If judgment should be rendered against Dioight, it would be impossible for Dioight to recover the costs of this suit from Sharp, on the ground that it was a debt for which Dioight was the security of Sharp, because Dwight and Sluvrp have, by their declarations, denied such a relation between them to have existed, and the plaintiff has neither alleged or offered to prove any such fact. The action is based upon an alleged advance made by them to Dwight, and the only question is whether the advance was intended to be made to Dwight or Shuep. The fact that at the time of making the advance, a special guarantee was taken by the plaintiffs from Dioight, that the sugar and molasses should be shipped to their house by Bord, and that it was expressly stipulated in the guarantee, that if the sugar and molasses should be lost or damaged on the voyage, Dioight should not be responsible, is a reason for requiring explanation of the whole transaction. The authorities cited by the plaintiffs’ counsel do not apply to tho circumstances of this case, and the case ought to be remanded for a new trial.

[450]*450It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed, and the case remanded, with directions to the Judge to receive the testimony of William Sharp ; and it is further ordered that the costs of this appeal-bo paid by the defendant.

Slidell, O. J., and Buciianan, J., concurred with Ogden, J.

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Ogden, J.

I think this case should be remanded, with directions to the Court below to receive the testimony of William Sharp. The objection made to his testimony, on the ground of interest, in my opinion, cannot be sustained. He swears against his own interest by fixing upon himself the liability for the plaintiff’s claim, so that he will be bound, in any event, to pay the amount in controversy. I do not see how he could be made liable for the costs of the present suit, no matter in which way it is decided. If judgment should be rendered against Dioight, it would be impossible for Dioight to recover the costs of this suit from Sharp, on the ground that it was a debt for which Dioight was the security of Sharp, because Dwight and Sluvrp have, by their declarations, denied such a relation between them to have existed, and the plaintiff has neither alleged or offered to prove any such fact. The action is based upon an alleged advance made by them to Dwight, and the only question is whether the advance was intended to be made to Dwight or Shuep. The fact that at the time of making the advance, a special guarantee was taken by the plaintiffs from Dioight, that the sugar and molasses should be shipped to their house by Bord, and that it was expressly stipulated in the guarantee, that if the sugar and molasses should be lost or damaged on the voyage, Dioight should not be responsible, is a reason for requiring explanation of the whole transaction. The authorities cited by the plaintiffs’ counsel do not apply to tho circumstances of this case, and the case ought to be remanded for a new trial.

[450]*450It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed, and the case remanded, with directions to the Judge to receive the testimony of William Sharp ; and it is further ordered that the costs of this appeal-bo paid by the defendant.

Slidell, O. J., and Buciianan, J., concurred with Ogden, J.

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Bluebook (online)

8 La. Ann. 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-v-dwight-la-1853.