
    
      THOMPSON vs. CHAUVEAU & AL.
    
    Appeal from the court of the parish and city of New-Orleans.
    suá” °ascera trespasser, in jfaf may*1 cite the party by whose directions he acted, and who gave a bond
    mandedt vanuestimo-SveT* re
    A witness is not to be rejected, because he is a creditor of the estate the defentort S ances" havinr a TractSof°n scd'byThe*1 plaintiff, be receivedfrom the latter part of the price,m pay-debt* and re-rirtfon tee mortgage.
   Martin, J.

delivered the opinion of the court, The defendant, marshal of the "city court 0f New-Orleans, is sued for a trespass, 7 * 1 committed by the illegal seizure and sale of the plaintiff’s house and lot. He justified under several suits of jifa, and prayed that the plaintiffs in these suits, by whose order, and un- ^ der whose bonds of indemnity he acted, might be cited to defend him: they accordingly were J v J , their answer justifies the seizure and sale. o * and avers that the plaintiff purchased the pre-fraud of their rights,

The plaintiff moved that so much of the an-swerof the orign’l defendant as related to bringing in these new parties, should be stricken ouf it was accordingly ordered, and he appealed rr from ^ order. The cause however, proceeded to .iu gmerU> which was for the plaintiff, and <jefeii(iant appealed.

⅛⅛¾* íandw^o/i witness in°a rescisión of the sole.

Ti e order of a court of Prüb;(tes for appointing a evidence 1Sof menttP!be-nt’ soranoTparties thereto.

whenado-curaent is le-sal evidence of a fact, and of an°-ther, and the ífiaHs the courts, it ons. objectl"

daimJ u^er ⅛ Sa^e OB is bound to produce writ an<l judgment, but n° other pan of the ^rd of tbe

The plaintiff now took a rule on Buckman, one of the interveni g parties, and the purchaser of the premises, to shew cause why a writ f. , , , . ... oi possession should not issue against him on shewing cause: the rule was discharged, and the plaintiif appealed.

Both parties have brought up the record, and the appeals are submitted together. . . • . Our attention is first arrested on several bills r of exceptions. ’ - 1

1. The first is taken by the defendants to the admission of Preval as a witness, on the ground of the irrelevancy of the testimony offered. The e , . ... . ■ consequence ot the court’s error, if it erred, . . . was the loss of time in hearing immaterial tes- ° timony. It would be aggravated, if to . the error the case was remanded, for we can-1 not comprehend how the absence of immaterial testimony would lead the inferior court to a different conclusion. _

% The next is taken by the defendant to the .. ,, . . . . n* ' opinión or the court m rejecting Orr, offered a witness, on the score of interest. This on his voir dire declared, he considered him- . self a creditor of the estate ofM‘Dermott, whose heirs were defendants in the suit in which the fi fths had issued, but he thought he had no interest in the suit, because he believed the es- , . taté amply sufficient. We are of opinion he wag jmpr0per|y rejected. Hughes vs. Lawes, 6 Martin 802.

3. The third is taken by the plaintiff to the introduction of Clark and Grymes as witnesses on the score of interest

To repel Clark, reference is made to the deed of sale by which the plaintiff purchased the premises from M‘Dermot’s daughter, the wile of Grymes. It thereby appears, that Grymes and wife acknowledged the receipt of part of the price, by a release of a mortgage of %e premises which Clark had, he having re* ceived payment from the vendee, the present plaintiff

We are of opinion the court did not err by admitting him.

The parties brought in by the original defendant, avail themselves of their being cited, by tilinga petition of reconvention to demand the rescission of the sale under which the plaintiff claims. Grymes and wife are' the' parties defendant in the Ji fa’s, on which the sale took place. If the sale be set aside, the present plaintiff will have an action against Grymes’ wife, and the judgment of rescission would be prima facia evidence against her: Grymes has therefore an interest in support of the title, and the court erred in admitting him.

4. The fourth bill is taken by the plaintiff to the admission in evidence of the proceedings in the court of probates on the appointment of Gainie as curator of M‘Dermot’s daughter, Grymes’ wife. The objection is stated to have been because these proceedings are res inter alias acta. This may be, but we cannot see what other legal evidence could be adduced of the appointment of a curator. We do not think the court erred.

5. A bill is taken by the plaintiff to the introduction of the defendant’s bill of sale as marshal, to the plaintiff, of the premises, to prove any thing but the adjudication—on the ground that it whs no evidence of title in the vendee because not duly registered.

This objection admits the legality ofthe evidence for a certain purpose. Had the c^se been before a jury, the party objecting to it on evidence for other purposes, ought to have requested the judge to charge the jury accordingly—but when the case is tried by the court, the deed must be read if it be evidence of any fact material to the issue, and the party may after-wards argue against it being used to establish other facts. We do not think the court erred in ... , . . . admitting the document m evidence.

6. The last bill was taken by the plaintiff to the introduction in evidence of the judgment of one of the intervening parties against the heir of M‘Dermott, on the ground of its being as to the parties in the present suit res inter alias acta. This may be, but he who claims under a sale on a.Jifa may, indeed must, produce thejudgment on which this writ issued, to justify the sale.

The judgment is, also objected to on the ground that the certificate at the foot of the record does not state that it contains all the proceedings in the case. The objection is untenable: he who claims under a sale of a Jifa is only bound to produce the judgmenfón which it issued. When a case comes up to this court after a trial, entirely on documental evidence, th# certificate ought to certify that the .record contains all of it—-but in other cases, the certi” ficate is only that the-copy is a true one.

We do not think the court erred.

As legal evidence has been rejected, this prevents an exanv nation of the case on the merits’ and compels us to remand the case.

Nixon for the plaintiff, Canon for the defendant.

We think the court erred in directing that part of the original answer which related to the bringing in of the plaintiffs in the,/? fa, to be Stricken out. The marshal had a right to demand that they should defend him, and on their foiling, judgment should be given against them. This case is in this respect perfectly analogous to that of Lafonta vs. Poutz, determined at the last term.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and the case remanded for trial, with directions to the pa' rUh judge to allow the part of the answer stricken out to be reinstated—not to reject the testimony of Orr on the score of interest, and not to admit that of Grymes; and it is ordered that the plaintiff pay costs in this court.  