
    Michel Graneri v. Lavinia Talbot and another.
    To disprove answers,made under oath by a party to a suit to whom interrogatories have been propounded, the testimony must be positive and certain.
    Appeal by the plaintiff from a judgment of the District Court of Iberville, in favor of the defendants, Deblieux, J.
    
      Burk, for the appellant.
    
      A. Talbot and Labauve, for the defendants.
   Morphy, J.

The petitioner having paid as endorser, a note drawn to his order by Adolphe Legendre, seeks to recover its amount from Lavinia Robertson, formerly the wife of Legendre, but now married to Augustus Talbot, and from her brother James Robertson. He alleges, that as this note had been given in payment of a store account, the divers items of which were articles of female ornament and apparel she had bought for her exclusive use, she and her brother and co-defendant promised and assumed to pay the same for the honor of the family. Interrogatories were propounded to the defendants, in answer to which they both denied ever having promised to pay the note, or any part of the account for which it was given. No attempt was made to contradict Mrs. Talbot’s answers, and she is clearly not bound. The . debt was contracted by her first husband; and it is not shown that she has done any act to render herself liable for the debts of the community since its dissolution. As relates to her co-defendant, James Robertson, four witnesses were examined to disprove his answers on oath. One of them is not certain whether it was the defendant, or Win. Robertson, who said he would pay the note. Another witness, Holmes, says, that defendant said he would see the note paid to the plaintiff, and also that he would attend to its payment. Monget says defendant did promise to pay the amount of the note to the plaintiff; and according to Bon-necaze, the last witness, the defendant said the note would be paid by the family, and not to be uneasy about the payment of it. These various statements, although vague as to time and place, might perhaps have sufficed to show a promise to pay on the part of the defendant; but they disagree with a declaration made by the plaintiff himself, and which is testified to by two witnesses whose testimony and character are unimpeached. On being requested by James Robertson, a few days before the trial of the case below, to state what he had said in relation to the payment of this note, the plaintiff answered, that he (the defendant) had said, that if his sister owed the money he would see about it, and that he wanted no man to pay his sister’s debts ; that if Legendre owed he wanted him to pay, adding that James Robertson had promised to use his influence with his sister to pay, <fcc. We think with the District Judge, that the precise import of the defendant’s promise concerning the note coming from the plaintiff himself, who had the most interest in understanding it correctly, must have more weight than the testimony of witnesses,, whose absence of interest in the matter may have rendered them inattentive listeners.

Testimony offered to disprove the answers on oath, of a party interrogated upon facts and articles, should be positive and free from uncertainty.

Judgment affirmed.  