
    No. 1249.
    Eliza B. Bogan, Wife of James Bogan, v. A. C. Finlay et al.
    It devolves on the party objecting to testimony to state the particular grounds upon whioh its intro- ' duction is resisted.
    All corporeal movables may pass by manual gift, accompanied by real delivery.
    Where a judgment of separation of property betweon the husband and wife is made the basis of an injunction suit by the wife, the judgment is admissible in evidence to prove ra/t ipmm; but, where ' the defendants in their answer attack the validity of the judgment, as fraudulent and collusive, it will produce no legal effect unless its genuineness is established by other legal evidence.
    A . PPEAL from the District Court, Parish of East Feliciana, Posey, J.
    
    
      Brief of 8. P. Greves, for plaintiff and appellant.
    —This is an injunction suit, in which the plaintiff and appellant sets forth that, in suit No. 617 of the docket of the Fifth District Court for East Baton Bonge, entitiled Eliza B. Sholfield, wife, v. James Bogan, husband, she was separated in property from her said husband, and decreed to own, as her separate and paraphernal property, a certain bay horse, buggy and harness; and that, since said judgment, she has been in possession of said property.
    The petition further sets forth that, in suit No. 455, entitled A. G. Fin-lay ei al. v. James Bogan, said buggy, horse and harness have been seized and advertised to be sold as the property of James Bogan, notwithstanding her ownership and possession of the same by decree of Court.
    Further prays that the sheriff be restrained by injunction from selling said property, until the question of title should be decided by the Court.
    The answer of defendants, to the petition in injunction, alleges that the judgment rendered in suit No. 617 is not valid ; charges collusion and fraud upon Bogan and Ms wife in procuring said judgment, for the purpose of defeating the claim of the plaintiffs in suit No. 455; that the property, of which the sale is enjoined, belonged to the husband, and that the wife brought no property into the marriage.
    On these grounds they pray for the dissolution of the injunction, and upon these pleadings the parties went into trial.
    The plaintiff in injunction offered in evidence the judgment in suit No. 6.17, decreeing the horse and buggy in controversy to be the separate property of petitioner. Objection having been made by counsel for defendants, the Court refused to receive the judgment in evidence for any purpose. Whereupon the counsel for plaintiff reserved his bill of exceptions to the ruling of the Court.
    In this bill of exceptions, the Court admits that the judgment offered in evidence was ostensibly valid.
    Now, the decree and proceedings in suit No. 617 being the basis of the suit for injunction, and said decree having been attacked in the answer as fraudulent and collusive, the judgment and proceedings should have been allowed in evidence, not as conclusive against the defendants in injunction, but to show that such a judgment existed, what that judgment decreed, and the proceedings under it, in order to refute affirmatively the allegation of the answer, and that the Court might determine whether the judgment, independent of the question of the property in the horse and buggy enjoined, was valid and in effect dissolved the community, which question had been put at issue in the answer, and which it was the right of the plaintiff to have finally adjudicated upon.
    As the matter stands, the judgment of separation of projjerty is admitted to be valid on its face, leaving the question of the property of the horse, buggy and harness to be proven aliunde the record, which plaintiff endeavored to do by offering in evidence, as proof of a manual gift or donation, the letter of J. B. Gribble, accompanying the delivery of the buggy aud harness to the plaintiff.
    The grounds on which the Court rejected the evidence were, that the gift was not a manual one, in the sense of Art, 1526 C. C.
    If the construction of that article by the lower Court be true, then the gift of affection from an old family friend to the plaintiff must be defeated in its object, and go to the grasping creditors of the husband.
    This Court, in Maillot v. Wesley, 11 An. 467, has placed a liberal and sensible construction upon this article of the Code.
    In that decision, household furniture is treated as corporeal movables, and the donation of them may be proved by parol.
    If a solemn notarial act may be dispensed with in the donation of household furniture, must a man go before a notary public to make a valid donation of a buggy and harness ?
    If this Court should overrule the decision m Maillot v. Wesley, it certainly should not be at the expense of the plaintiff, who had the right -to consider the construction of Art. 1526, by this Court, as the law, in accepting the gift without the solemnity of a notarial act. If there be any doirbt, wo should have the benefit of that doubt, and the buggy and harness decreed to be our property. At all events, the decision of the lower Court should be reversed, and the judgment in suit 617 admitted in evidence, to prove the allegation of the petition, and to disprove the allegations of the answer going to annul its provisions.
    
      Brief of Joseph Jooi',for defendants and appellees.
    —Eliza B. Bogan, wife of James Bogan, sued out an injunction to stop the sale of a buggy, harness and horse, stated to be worth the sum of $500, on the ground that they were her separate property. Defendants had seized them as the property of her husband. She claimed that this property was hers by donation from John B. Gribble.
    Defendants alleged the property to belong to the community, and charged fraud and collusion between husband and wife, and prayed for damages.
    Judgment was rendered against plaintiff, and allowing fifty dollars damages. Plaintiff appealed.
    The only matter before the Court is two bills of exceptions taken by-plaintiff.
    1. Plaintiff offered a letter of Gribble to x>rove a donation of buggy and harness. Defendants objected.
    C. C. 1453 : “Property can neither be acqxiired nor disposed of gratuitously, unless Ly donations inter vivos or mortis causa, made in the forms hereafter established.”
    C. C. 1525 : “A donation inter vivos, even of movable effects, will not be valid unless an act be passed of the same, as is before prescribed.”
    Bat plaintiff now pretends that it was a manual gift. How could this be, when it is said to be done by letter ? Mrs. Bogan lived in Baton Rouge, and Gribble in New Orleans. If it was a manual gift no letter between parties one hundred miles apart was needed; neither could it effect a “real delivery,” as required by Art. O. O. 1526. A watch, a sum of money—anything that could be taken in the hand and 1 ‘ really delivered, ” would be a proper subject for a manual gift. Is a buggy susceptible of such delivery, in these days when giants are not to be found ?
    2. A letter of a third person is merely an assertion, and cannot be received against these defendants. If Gribble made this donation by ‘ ‘ real delivery,” his evidence should have been taken under oath. The law presumes all property in possession of lnisband and wife to be community, until the contrary is shown. C. C. 2374. This property was found in possession of the husband. * * * * * *
    The second bill is to the rejection of the judgment of Eliza Bogan, wife, v. James Bogan, husband. This was proper. In Bunn v. Woodward, 11 An. 267, this Court says : “Under the issue, it is clear that the appellant was bound to prove the genuineness of her claim against her husband for her dotal and extra-dotal rights, which constituted the alleged consideration of the transfer to her. The judgment of separation could have no more effect against the creditors of the husband, than the pretended agreement itself. 8 N. S. 460. 4 L. 420. In the absence of any such proof on her part, we take it to be clear, that the pretended conveyance to her must be regarded as a mere simulation. ”
   Insmiv, J.

The defendants in this injunction suit, having seized, as the property of James Bogan, a horse, buggy and harness, his wife, Mrs. Eliza B. Bogan, sued out an injunction to stop the judicial sale thereof, alleging, in her petition, that she was the owner of the property seized, having acquired it by a manual gift from one John C. Gribble. The defendants, in their answer, say that the said property belongs to the community between James Bogan and his wife, and it charges the spouses with fraud and collusion, and prays for damages.

The injunction was dissolved; with damages, and the plaintiff, Mrs. Bogan, has appealed from the judgment in the Court below.

During the trial of the-case in-the District Court, the plaintiff offered certain evidence, which was rejected ; and to the ruling of the Court, in this particular, she tendered two bills of exception, which were allowed. The first bill was to the refusal of the Court to receive as evidence a letter, purporting to be signed by John C. Gribble, to prove by it that the horse, buggy and harness were a manual gift to Mrs. Bogan, from John C. Gribble, accompanied with delivery, and this was objected to, on the ground that the pretended gift was not a manual one, in the sense of Art. 1526 of the Civil Code, and could not be proved by the letter offered. It devolves on the party objecting to testimony, to state the particular grounds upon which its introduction is resisted (see 1 Hen. Dig. 492, g 1); and the only reason assigned for the rejection of the letter as evidence being the one just stated above, the Court below erred in rejecting it, as in the case of Maillot v. Wesley, 11 An. 467, it was held, in effect, that corporeal movables generally may pass by manual gift, accompanied by real delivery.

The other bill was taken to the refusal of the Court to receive, as evidence for the plaintiff', the judgment in the suit No. G17, of the records of the District Court, entitled Eliza B. Skofield, wife, v. James Bogan, husband, and referred to, in her petition for injunction, as the basis of her claim to the horse, buggy and harness, its her separate property; and this evidencie was objected to on the ground that the defendants, having at-tacked the validity of this judgment in their answer, us fraudulent and collusive, the said judgment could not he produced in evidence, as proof that the horse, etc., wore the separate, property of the plaintiff', unless she proved the facts, upon which the said judgment was based, are true, contradictorily with the defendants. The evidence was admissible to prove, rom ijpsam, that such a judgment was rendered, and as a mere basis ol' title in the plaintiff, but which could produce no legal effect under the pleadings, unless its truth and genuineness were established by other legal evidence.

This is not an opon question. -1 La.-122. 12 La. 301. 11 La. 536. 1 An. 135. 10 Au. 87.

As neither the letter nor the judgment was annexed to the bill of exceptions, the case is not in a condition, in this Court, to bo finally disposed-of, and it must, therefore, be remanded for a uew trial.

it is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that the case be remanded to the District Court, for a new trial according to law, at the costs of the appellee.  