
    SPRIGG vs. BEAMAN.
    APPEAL FROM THE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE FOURTH PRESIDING.
    In an hypothecary action, the defendant cannot,after the general denial has been pleaded in the court of the first instance, first raise the objection on appeal, that the oath as to the debt is not annexed to the plaintiffs petition, and that payment has been in vain demanded, thirty days before the institution of the suit.
    A surely who pays and is subrogated to the rights of the creditor against the principal debtor may legally issue execution in the name of the judgment creditor.
    Personal demand on the debtor, previous to bringing the hypothecary action against the third possessor, will not be required where the debtor has absconded. A return by the sheriff of nulla bona, is sufficient.
    In the assignment of a judgment the legal and the express subrogation are of equal extent, and every right which the creditor possessed, passes by the act of payment to him by whom that payment is made.
    An attorney interrogated as a witness in a cause upon his voir dire, swore “ that he had not stipulated any particular fee, but expected to be paid for his legal services, and that it was his habit, when he had not stipulated for his fee to charge less, should he fail in the cause than if he were to succeed; and that he would feel bound by his rule of conduct to apply it in this case.” It was held by the court that he was admissible as a witness, for his client.
    
      A debtor, who is liable in warranty, if the plaintiff succeed against his , ,, , , , . , , , , , , , vendee, has a direct and Jegal interest, which renders him incompetent to testify in the cause.
    The authority to collect a note, necessarily implies the power to extinguish the right of the creditor in it, and whether the payment by which this extinction is produced, be made by the debtor or any other person, is a matterof no importance, provided that the attorney expressly stipulates, that the transfer is made without recourse to his client.
    The word “rights,” in Louisiana Code, art. 2356, embraces every thing included in the following words, “actions, privileges and mortgages.”
    If an absolute judgment he rendered when the petition prays only fora con- . ditional one, it is good ground for reversal.
    This was an hypothecary action brought to subject certain slaves in the hands of the defendant, as third possessor, to the plaintiff’s mortgage. The latter derives bis mortgage from a recorded judgment obtained by one James Miller against G. C. Russell, at the May term of the Rapides District Court in 1829. In December, 1S28, Miller, bj.' his attorney at law, and in fact, Isaac Thomas, for value received, transferred said judgment with all its privileges and mortgages to the petitioner. Since the recording and transfer of the above judgment, the defendant purchased a number of slaves at sheriff’s sale, sold as the property of G. C. Russell, and subject to the mortgage under said judgment.
    The defendant expressly denied the authority of Mr. Thomas, as the attorney in fact of Miller, to transfer his judgment against Russell to Sprigg, and subrogate the latter to Miller’s right, privileges and mortgages under the judgment. He averred that Miller was dead when the transfer was made, and the power under which it was made, was insufficient; and that it was made in fraud and without consideration.
    The power of attorney from Miller to Thomas, declares that “ I, James Miller, &c., do nominate and appoint Isaac Thomas, my attorney in fact, with full power to arrange, settle and receive the amount of a claim due me by G. C. J Russell, and which is at this time in the hands of my said attorney; hereby clothing him with full power to do any thing in relation to said claim that he may think proper, or take any steps for the security therefore.”
    On the trial, I. Thomas, Esq., was called as a witness, and objected to on the score of interest; having a fee in the case as counsel.
    It was also objected by defendant, that the return of the sheriff of nulla bona, on the execution against Russell, was sufficient notice to the third possessor, of the non-payment of the debt; and that the execution, itself, was null, having been issued by the assignee in the name of the judgment creditor.
    The district judge overruled all these objections, and gave judgment for the plaintiff’s whole claim. The defendant appealed.
    
      Thomas, for plaintiff and appellee.
    1. The main question here, is whether the power of attorney from Miller, was sufficient to transfer all his rights to this judgment against Russell?
    2. The power is full and ample to his attorney to secure the payment of the debt in any lawful way, and makes the subrogation legal. It was special, because it related to the settlement of this particular debt.
    3. The objection to counsel being sworn as witnesses in their causes, cannot be sustained. The code makes them competent witnesses, and the taking a fee does not disqualify them.
    
      Winn, for defendant and appellant.
    1. This being an hypothecary action, is improperly brought, because there is no oath annexed, that the debt is due and remains unpaid, and that payment has in vain been demanded of the principal debtor thirty days before suit against the third possessor. La- Code, 3364, 5. Code of Practice, 68, 69, 70.
    
      2. The surety who pays the debt, cannot take out execu- . J 1 J . lion in the name of the creditor; so the ji. fa. issued by Sprigg in Miller’s name, against Russell, was null and void, aU(j -¿he sheriff’s return of nulla bona was illegal, and did not operate a notice of a demand on the original debtor, to put the third possessor in delay. 4 Mar. JY. S. 196. Code of Practice, 726, 7. 1 La. Rep. 410.
    3. The transfer of the judgment and subrogation of Sprigg to Miller’s rights, by Major Thomas, was made without proper and legal authority.
    4. The power of attorney under which Thomas acted, did not authorise alienation and subrogation. Louisiana Code, 2965, 6.
    5. A power to make a conventional subrogation, must be special and express. La. Code, 2158.
    6. The power of attorney could not be received in evidence until proved; Maj. Thomas was an incompetent witness to prove it, on the score of interest, having a fee depending upon the event of the suit, and ought not to have been admitted. La. Code, 2260. 1 Dallas, 62.
   Porter, J.,

delivered the opinion of the court.

This is an action commenced by the assignee of a mortgage, to enforce it on property in the hands of a third possessor. The petition contains a prayer that the defendant be condemned to deliver up the property, or pay the amount due.

The answer presents a general denial; a plea of payment; an averment that the transfer of the mortgage was made by a person not duly authorised to alienate it: and, lastly, that the plaintiff paid no consideration for the debt, but, on the contrary, that he acquired it through fraud.

The proceedings throughout, took the form of the juicio ordinario, and the cause was submitted to a jury, who found a verdict in favour of the plaintiff, on which verdict the court rendered a judgment, similar to that given in a personal action, where the plaintiff establishes the debt sued for. From that judgment the defendant has appealed.

In anhypotiiccary action, the ^^¿"‘geSerai pSedh“i,i bth" £?th° ««t raise the objection on appeal, that the oath as to the debt ¡anotannexed to the pjaintiir’s petiíheTnftSmtion°of

A surety who Pays aatI ,is subrogated to the [Í?ht^atastMura miíyTegaiiyíssuB nameofthéjudg-ment cl'e<utor-

„Jnt ofVjudgl anTtin?°expil£ subrogation are of equal extent, and every right which the creditor possessed passes by the act of payment to him paymonu” mad?

An objection has been taken in this court, that there is nut annexed to the petition an oath, that the debt is justly due, and unpaid; and that payment has been in vain demanded thirty days before suit was brought.

This objection should have been presented asan exception ° A 1 in the court of the first instance, and should have béen pleaded in limine litis. It is foreign tojthe merits, and was waved by an answer embracing the general denial, a plea of , c pajmcnt, OEC. #

. It is next urged that the evidence 01 a demand on the ^ original debtor is insufficient, as the return by the sheriff of nulla bona, is made on an execution which was illegal and void. The nullity, it is contended, arises from the plaintiff having issued the execution in the name of the creditor, though the judgment had been already conveyed to the petitioner, and in support of this proposition, observations which fell from the court in the case, Gray vs. Baldwin, are principally relied on. The remarks then made, do certainly sustain the ground now taken, but they were not necessary J to a decision ol that case, and upon an attentive consideraA tion of the matter, we are satisfied they are erroneous. The true principle, we take it, is settled in the case of Cox vs. Baldwin. The judgment creditor, it cannot be doubted, might expressly confer such a right on his assignee. If the legal subrogation be as extensive as that which is express, and we think it is, then every .right which the creditors possessed, passes by the act of payment to him by whom that payment is made. 4 JV. S, 196, 1 Louisiana. JXepOVtS¿ 4U1. 1

. /» i . On the point now under notice, a further consideration x # was pressed on us. The sheriff returns that the defendant r had left the parish, that he could find no property belonging to him, and that the plaintiff could not show any. Reference is made to the 726th and 727th articles of the Code of Practice, to show that a demand must be made of the debtor, before a return of nulla bona. To this doctrine we accede, if it be possible to make the demand, but if the debtor has removed from the baliwick of the officer before the writ comes into his hands, the demand cannot be made by him, ^ ' and the ulterior rights of the creditor cannot be defeated by the debtor absconding. The code in the articles cited, gives ^e general rule, and leaves it open by the exceptions which accompany all laws, and which necessarily grow out of circumstances that are inseparable from the affairs of men. . 4 7 4 Lex nemmem cogió ad vana sen impossibiha♦

Personal de* Sor, previous hypothecary ac'thw “Assessor8, will not be required where the debtor has absconded. a return by the sheriff sufficientis

An upoTShisa°Mi8 hniaTnot stipíí w^feefbñt^aiti pected to be paid for his legal vices, and that it" was ins hfy-t, when he had not fee*tefehargejess theUMure, ítaL’if ceeíTami tílafhe byilisrSeofcontMsVas^n wá” ¿hat he was admissible as a witness for his client,

, . , 7 7 , _ On the trial of the cause, the plamtitt ottered his counsel x as witness, he was objected to on the ground that he was interested in the event of the suit, and was interrogated on his voir dire, to establish that interest. Hi; swore ‘'that he had not stipulated any particular fee with his client, but expected to be paid for his legal services; that it was his habit, when he had not stipulated for his fee, to charge less, should he fail in the cause, than if he were to succeed; and that he would feel bound by his rule of conduct, to apply it to this case.” We think the judge did not err. We are inclined on all occasions, where the strict rules of law do not controul us, to favour the admission of testimony, and leave the credit to be weighed by those who are required to decide p. The correct rule, as we understand it, is, that the interest which disqualifies a witness, must be a legal interest. The case cited in ‘ argument, is one of many which has been decided in the United Skates on this subject. It shows . , . . in that instance, an honorary interest excluded the witness. The authorities in our sister states conflict, though ■ ° they preponderate in favor of the proposition, that an interest wbich is not legal, will disqualify a witness. To produce that effect in England, the interest must be direct and legal. in the instance before us, though the witness felt the obligatlon which his habits of business had imposed, to vary his charge for compensation with the event of the suit, tnerc was ° * surely no legal obligation on him to do so. The legal responsibility of the client was to pay him the value r f his services, and this value was to be tested by the labour and pains bestowedon the cause, and the degree of responsibility incurred, not by the success which attended his efforts. The physician who conquers a disease, is in law entitled to no more remuneration, than when he is baffled by it and sees all his exertions fruitlessly terminate with the loss of his patient’s life. Starkie on Evidence, part 4,746, 747, and notes to 747. Phillips on Evidence, 63.

liable in war™?which rm’SJy “the cáuso'

Til0 authority necessarily implies the power to extinguish the right of the cred-¡tor in it, ana whether the payño v?aed the°’aSori pXtesrthaf the without recourse

There is another bill of exceptions taken to the opinion of the judge refusing to admit the original debtor as a witness, on the part of the defendant. The witness had a direct interest in the cause, and a legal interest too, for if the plaintiff succeeded in the action, the witness was responsible in an action of warranty to the defendant, who had purchased the property at a sale, under a writ of execution. See Code of Practice, 711.

The plaintiff became the assignee of the mortgage under a transfer made by an attorney, who was empowered “to arrange, settle and receive the amounts of a claim due me by G. C. Russell, and which is at this time in the hands of my said attorney, hereby clothing him with full power to do any thing in relation to said claim that he may think proper, or take any steps for the security thereof that he may think advisable.”

It is contended, that the power did not authorise the transfer, because a transfer is an alienation, and by our law i. . , • i i the authority to sell or to buy, must be special and express, • The authority to collect a note, necessarily implies the J u power to extinguish the light of the creditor in it, and whether the payment be made by the debtor or any other person by which this extinction is produced, is a matter of no importance, provided the attorney, as in the case before us, expressly stipulated that the transfer was made without recourse to, or liability of, his client. The act of the agent, we, indeed, think was in exact compliance with the power which authorised him to take any steps for the security of the debt.

It is not objected that the transfer did not convey the right of mortgage, because by the act which evidences it, the plaintiff is subrogated to all the rights and privileges of the creditor; and rights and privileges, it is said, are different ^10ra and do not include mortgages. In support of this proposition, we are referred to the Louisiana Code, 2156, which declares that the subrogation is conventional when the creditor subrogates the person paying him, in his rights, actions, privileges and mortgages. It is further urged that the use of these four words, show clearly that they have all a different meaning, and that the use of the words actions, mortgages and privileges were unnecessary, if rights included them. This argument pays a compliment to law makers, which we are afraid they are not always entitled to. It supposes that they never use words which are unnecessary or superfluous. Our experience teaches us not to adopt such a presumption, and that in legislation, as well as in other matters, there is often an useless employment of many words to express the same idea. The case before us is a strong example of the kind. It is very clear that the word rights, embrace the other things enumerated. We must come to that conclusion, unless we adopt the absurd one, that a . . m01't§age or privilege was not a right which belonged to the creditor.

«rights,» in Lou, '£m,a embraces eluded in the &1-lowing words, iegeions’d prh1" gages.”

if an absolute dered'when Tío' Fyfór™ ommional one; it is good ground for reversal.

These opinions render it unnecessary to express any on the third bill of exceptions, taken to the judge’s charge to. the jury.

We think the judgment of the court below, here should be reversed; it is absolute for the payment of money, when it should, in pursuance of the prayer of the petition, have t r been in the alternative.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that unless the defendant shall within ten days after the notification of this judgment, pay to the plaintiff the sum of five hundred and seventy-six dollars and sixty-four cents, with interest, at eight per centum per annum, from the 1st of January, 1830, on five hundred and twelve dollars and twenty-seven cents, and costs in the court below, that then a writ shall issue for the seizure and sale of the negrees mentioned in the petition, to satisfy the sum now decreed to he due to the plaintiff; and, it is further ordered, that the costs of appeal shall be borne by the appellee.  