
    
      FAUSSIER vs. FAUSSIER & AL.
    
    The estate of the husband is not chargeable with a sum, which the notarial act shows to have been received by the wife.
    Appeal from the court of the parish and city of New-Orleans.
   Martin J.

delivered the opinion of the court. The syndic has appealed from the judgment of the parish court, which directs that the plaintiff be separated of goods from her husband, and that she recover $1793, which she inherited, from her husband, to be paid by the syndic, in his capacity, according to the date and nature of her privilege.

The syndic denied that the husband received the sum claimed, and the proof of his having received it is presented in a deposition of the wife’s tutor, who deposes that he paid it to the husband, by a check on one of the banks—by the deposition of Lanaux, who swears he saw a receipt to this effect, in the hands of his father-in-law, by a notarial act, in which the wife, authorised by her husband, and in his presence, acknowledged she received the money and discharges and acquits her father ex’rs. &c. This instrument is subscribed by the husband, is dated May 18, 1821, and was registered by an order of the parish court of March 1, 1822, on the following day.

East'n District.

June, 1823.

It seems to us the parish judge erred. It is in evidence that a receipt for the sum thus alleged to have been paid was seen—nothing shows that it does not now exist; parol proof of the payment, was therefore improperly admitted—the production of the receipt was indispensable.

The notarial act shews that the wife received the sum claimed, and signed the discharge—nothing shews that the money came to the husband’s hands. This circumstance, the only one, which can authorise a charge against his estate, not being proven, the claim ought to have been disallowed.

It is therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided, and reversed, and this court proceeding to pronounce such a judgment, as in their opinion, ought to have been given below, it is ordered, adjudged, and decreed, that the plaintiff be separated of goods from her husband and that she pay costs of this court, and the defendant in the parish court.

Quemper for the plaintiff, Hennen for the defendant.  