
    No. 146.
    Succession of B. L. Saunders.—On Oppositions of Saunders Heirs and Gee Heirs.
    Successive decisions of tlxis Court have established the doctrine that the prescription of judgments may he interrupted in the same mode and by the same means that proscription of other debts may be interrupted.
    A former suit against the same defendant personally will interrupt proscription when the latter suit is agains'- him as executor, and in it the heirs of the original plaintiff are plaintiffs and the form of the Litter suit is an opposition to accounts, the thing demanded being the same in both.
    The testimony of the defendant iu this first suit is admissible on the trial of the .second and its admissibility is not affected by the fact that the first suit was dismissed for want of jurisdiction.
    
      The heirs of a decedent must recover the principal sum left in the executor’s hands as the basis of a usufruct with interest from the usufructuary’s death, and the heirs of the usufructuary are entitled to interest thereon from the time the executor ceased paying" it to her death. The payment by the executor to the usufructuary of interest through several years is an election on his part to retain the fund at interest,
    
      \ PPEAL from the Second District Court, Parish of Bossier. XJL Drexo, J.
    
      Watleins, Scarborough & Oarver, for Opponents and Appellees:
    1. Interest is due on any balance found to be owing by an administrator from the date of the judgment establishing the debt. The amount must be considered due ex contractu. 3 A.. 574, St. Andre vs. Rachal. •
    The syndic of a succession found, after an examination of his accounts, to owe a balance to the estate, should bo condemned, like a creditor or executor, to pay interest tbereon at the rate of five per cent, a year from date of jmdgment, 10 R., 479, Succession of Desorme ; 9 A., 376, Bass vs. Chambliss.
    An administration will be condemned to pay interest on the balance shown to be due, though the petition contains no demand for it. 7 A., 69, Graves vs. Barnes ; C. P., 1007*
    “ An administrator owes but one account to the legal representatives of the deceased, and the judgment of court, rendered contradictorily with che heirs, should * * ascertain the balance due to the estate; such balance bears interest at the rate of five per cent, from the time of rendering the account,” etc. 12 R., 215, Succession of Thomas ; 36 A.; 240, Succession of Touzanne.
    Sums of money, the usufruct of which has been given, shall be put out at interest on good security with the consent of the owner, or that of the judge. R. C. C., 563. And a failure to do so was a violation of duty by the executor and -binds him for its payment*
    2. Prescription begins to run against a right only when the power of enforcing the right has arisen. The right of the Saunders heirs was suspended until the death of the usufructuary; hence no prescription commenced to 'run until the death of the usufructuary. 32 A., 637, Perault vs. Perault; 32 A,, 1037, Succession of Parmer.
    3. A suit to revive is not the only way of interrupting prescription against a judgment. It may he interrupted in the same modes as debts evidenced by written obligations. 34 A., 413, Levy vs. Calhoun; 30 A., 1071, Succession of Patrick.
    A suit brought in a court without jurisdiction interrupts prescription. R, O.O.,3518; 33 A., 848, Satterly vs. Morgan; 27 A,, '«0, Sorrell vs. Laurent.
    4. The judicial and extra-judicial declarations of a party, as well as his evidence on a former trial, are admissible against him. 7 R., 440, Closman vs. Barbancy; 14 A., 727, Alford vs. Huey & Randolph.
    A party is judicially estopped from disputing op gainsaying in one suit what has been alleged in another. 31 A., 81, Byrne vs. Bank; 22 A., 251, Dalton vs. Viasca.
    5. The executor must he sued for an account in the parish where the succession is under administration. 17 A., 277; 23 A., 568, 550.
    6. Judicial admissions are .the highest evidence against a party, and are admissible, although the suit has been decided or discontinued. 5 R., 326 ; 3 A , 492; 5 A., 315 ; 4 O. S., 445; 1 N. &, 442; 5 KT. 178; 1 R., 546; 12 R., 445, 558; 7 R., 438; 5 R., 4.
    A witness’s written evidence may be offered to discredit or contradict him. 7 O. S., 209 ; 3 R., 171.
    7. A tableau of distribution when filed by an administrator must be advertised. R. O. O., 1064.
    "When heirs have presented themselves and demanded to be pub in possession of the ostate (R, O. Q., 1193; P., 1000 et seq,), and the executor has filed an account, opposition may be filed thereto after the lapse of three days, if the same has not been approved aDd homologated. C. P.,1004; 9 La., 48 Longhottom vs. Babcock; 7 La., 344, Guffert vs. Minor; 25 A., 331, Succession of Hogan.
    8. “The testimony of plaintiff in his own favor, to establish a large claim agavnst a succes sion should he received with the greatest caution, It is, in itself, of the weakest character and unless strongly corroborated, cannot serve as a basis for a judgment of recovery.
    
    “ Under 2282 B. O. 0. the circumstance of his being a party may diminish the extent of his-credibility.”
    Again: ‘ It is not because a plaintiff swears affirmatively to the existence of a debt in his favor that the court is bound to take his testimony as conclusive. Surrounding circumstances and the absence of corroborating proof may weaken it (particularly in a suit against a dead man) as to render it insufficient for a foundation for a judgment of recovery.” Cutler vs. Succession of Collins, 37 A., 95; Succession of Drum, Manning's Unreporfced Cases.
    The doctrine announced in the two preceding cases is completely destructive of the testimony furnished by the unsupported affidavit of the executor’s attorney, and on which he relies solely for judgment of over §6000.
    
      Jack (& Disrmilces for Defendant and Appellant:
    “All judgments for money, whether rendered within or without the State, shall he prescribed by the lapse of ten years from the rendición of said judgment unless revived.” Art. 53, now Art. 3547, C. C-; 21 A , 295; 23 A , 587; 24 A., 211.
    A judgment condemning an executor to pay to the surviving widow one-ninth of the net proceeds of the estate to he hold in usufruct during life, and condemning the heirs for specific amounts in money previously received on partition is a moneyed judgment and subject to the ten years’ prescription. 37 A., 221, and cases cited above.
    Presciiption on judgments cau only be interrupted by proceedings of revival or by acknowledgments of the judgment debtor in writing. 30 A., 1071; 34 A., 413. The right of usufruct expires in ten years by non-user. C. C.
    When a party has it in his power to administer evidence which will remove all doubts as to the matter of issue and fails to offer it, the doubts will he construed against him. 20 A., 363.
    Every presumption will be adoptod against a litigant who suppresses evidence that will-illustrate his case. 2 A., 28; 7B., 32; 1 A.,1; 5 A., 324; 6 A., 165; 7 A., 544 ; 10 A., 132-
    In order that testimony taken in one case may be used in another the parties must be the same and the issues substantially identical. 16 A., 88; 7 B., 438; 1 A., 391; 7 A., 106 14 A., 727; 24 A., 604.
    In a proper case and under a proper showing, evidence taken in one case may he used in-another, as where the witness is absent, sick, dead or insane, but the rule is not to b& invoked at will and as of right to the surprise and detriment of the adverse party. 4 H. S., 449; 7H. S., 267, 283; 1 L., 320; 15 L., 43; 1 A., 391.
    Testimony taken in a case where the court was without jurisdiction ratione materies et ratione persones is coram non judice and cannot be used in another case, especially where the parties and issues are different. 8 H. S., 449.
    “The judicial confession must he taken as a whole; it cannot be divided.” C. 0.,2291. see also C. P.,356; 4B., 144;‘9 B., 125; 20 A., 464-5; 3 H. S., 454; 9 B., 146, 163; 6 H.’ S., 533; 11 A., 380
    Parts of records are inadmissible. 30 A., 29; 19 L., 526; 3 A., 594; 29 A.. 213.
   The opinion of the Court was delivered by

Manning, J.

B. L, Saunders died in Bossier parish in 1852, and G-. W. Thompson qualified as dative executor and sold the property of the. estate. The widow of Saunders, Hannah P. Gee, recovered a judgment of the executor in 1854 for the usufruct of one-ninth of the property. Gee v. Thompson, XI Ann., 657. She was unable to give security and therefore the fund remained in Thompson’s hands and he paid her the annual interest to June 17, 1874. In 1882 she brought suit in Natchitoches parish against Thompson to recover the interest since that date which wo dismissed last spring for want of territorial jurisdiction of the lower court. These proceedings have the same object, and as the usufructuary has died, the heirs of Saunders claim the principal,'viz the one-ninth of the estate left in Thompson’s hands.

The questions are presented in oppositions to the final account of the executor which he filed in 1885 under a rule of the heirs.

Prescription is pleaded to the Gee judgment which was rendered in December 1854. It is not denied that the judgment was regularly paid up to June 1874. It was for interest on a specified portion of a fund and was annually satisfied. If the judgment were prescriptible, and the opponent Gee contends that it is not, being merely for the recognition of a right of usufruct, it would begin to run from June 1874, and the suit in 1882 interrupted it under the doctrine of Sue. Patrick, 30 Ann. 1075, recognized as established in Levy v. Calhoun, 34 Ann. 413.

It does not matter that the suit of 1882 was against Thompson individually and this is against him in a representative capacity. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. Nor is the fact that the former suit was in another court a prevention to its interruption of proscription. Levy v. Calhoun, ut supra.

A preliminary question of the admission of Thompson’s evidence is presented. It was taken in the Natchitoches suit and he was not present in the trial in Bossier whence this appeal comes. Its rejection is claimed because the suits are not identical in cause of action or in the parties, and was taken before a court without jurisdiction of the suit.

The objections are not tenable. The evidence would be admissible -on the ground that it is the admissions of a party to the suit, Hood v. Chamblis, 7 Ann. 106, but it is more. It is the declarations under oath o'f the party himself touching the identical subject of this suit made in .another wherein his adversary was the same as now, and it is himself that is objecting to hearing his own sworn explanations of his own long-past transactions and not his adversary.

Tiie executor’s liability for interest to the usufructary is denied, and in support of that position it is said that as the money was left in his-hands because the usufructary did not give bond and withdraw it “the executor, whose relation to the fund is precisely that of owner, is no-more obliged to put out the money at interest for the nse and behoof of the usufructuary than he is to give the bond or special security for him.”

The Code directs that money upon which there is a usufruct shall be put at interest with the consent of the owner and if he refuse, by authority of the judge. Rev. Civ. Code, art. 563. We do not find it necessary to say upon whom lies the duty of forcing the investment of the money, whether upon the executor or the usufructuary. The executor’s counsel admits that his relation to the fund is that of owner, though of course the Saunders heirs were the ultimate owners of it, and as he failed to invest it in the obligation of any one else he must be held under the circumstances of this case to have invested it in his own, in other words to have retained the money in his own hands at interest. His conduct shows this to have been done. His payments of the interest through twenty years to the usufructary show his own construction of the matter, and Ms reasons for not continuing them will not bear scrutiny. He says he had in those twenty years paid Mrs-Gee more than the sum originally in his hands, as every one does who pays interest on a debt long enough. His contention is that the whole sum was absorbed by the annual payments to Mrs. Gee and therefore neither her heirs nor the Saunders heirs were entitled to anything.

The lower court gave judgment to the Saunders heirs for one-ninth of the estate, that being what had been left in the executor’s hands, viz $3,444.44 with interest from judicial demand, and to the Gee heirs for the unpaid interest upon that sum from the time the executor had ceased paying her, this time being erroneously stated 1884 instead of 1874, from which latter date it should run. The interest in favour of the Saunders heirs should run from the usufructuary’s death.

We do not think the judgment needs correction save in these particulars. There are some objections made to certain items of the account as not having any voucher. The. business is of long standing, and the executor swears he paid them and has lost the vouchers.

Tt is ordered and decreed that- the judgment of the lower court is amended so that interest upon the one-ninth of the estate shall run in favour of the Saunders heirs from the death of the usufructuary, and that the interest upon the same in favour of the Gee heirs shall run from June 17, 1874, to the death of the usufructuary, and as thus-amended that it is affirmed.  