
    
      BAKER vs. VOORHIES.
    
    Appeal from the court of the sixth district.
    ⅜ party -who takes a deposition must see that the interro-oppotenfbe
    ¶⅞*0 ack-
   Martin, J.

delivered the opinion of the court. The petition states that the plaintiff sold to Woods, a slave, by a private writing, on he acknowledged the receipt of the price, although it was not paid; that the vendor is dead, and the defendant, curator of his estate, is about to sell the slave for cash, contrary to law. The prayer is, that the plaintiff may have judgment for the price, and that the defendant may be enjoined from selling the slave for cash.

The defendant pleaded the general issue; that the injunction was asked, merely to create delay.

The injunction was dissolved, the defendant had judgment, and the plaintiff appealed.

The defendant’s counsel relies on a bill of exceptions taken to the opinion of the court of probates, who refused leave to read the deposition of his witnesses, taken by commission and on interrogatories, on the objection of the defendant and appellee, that his interrogatories, added to those of the plaintiff, were not answered.

It is urged, if a defendant withhold the answers to his interrogatories, or otherwise prevent their appearance, or if the magistrate is in fault, the plaintiff ought not to suffer. It is true, that if it be through the act of the defendant, that the answers to his interrogatories do not come up, the plaintiff ought not to suffer; but fee nlaintiff should shew the interference of the defendant, if he wishes to avail himself of it. This is not done in the present case. It appears 1 lr the defendant added his interrogatories to the plaintiff’s; this is all that he was bound to do. The plaintiff was then to have the commissions duly executed and returned. If it be not so, the depositions cannot be read, for the reading of them would do injury to the defendant, who is in no fault; the plaintiff who undertook tó procure testimony, must suffer the consequence if by accident or otherwise, the testimony does not arrive in such a plight as to be used. The testimony was therefore correctly rejected.

On the merits, the plaintiff has admitted, in the bill of sale he received the price. The bill is posterior in date, to the promulgation of the new civil code, which provides that “the acknowledgment of payment made in an authentic act, cannot be contested under the pretence of the exception de non numerata'pecunia, which is hereby abolished,” 2234,

It is contended that the first branch of the article relating to authentic acts only, the latter must be confined to cases in which there is such an act; otherwise the adjective authentic has no meaning; to this it may be answered, that if the exception be abolished, in cases of authentic acts, the whole of the last branch of the article is without use, for in the first branch, : ' " ” the legislator hud virtually though impliedly abolished the exception.

Boyce 8$ Gorton for the plaintiff, Thomas for the defendant.

Farther, the hill of sale being acknowledged, has, between the parties, the same credit as an authentic act. Ib. 2239. To this act acknowledging the receipt of the price, and being entitled to the same credit as an authentic one, the acknowledgment in it cannot be contested.

Put the injunction was claimed by the plain? tiif, not only as creditor of the price, but as a creditor of other sums due by the estate; of this there was not a tittle of evidence produced.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the court of probates be affirmed, with costs.  