[Bernard et al. v. Vignaud.]·

with the administration of it, is alone accountable to the heirs." The plaintiffs appealed.

Seghers, for the plaintiffs.

Livingston, for the defendant.

(10 Martin, 482.)

MARTIN, J., delivered the opinion of the court.*

The plaintiffs have established, that Fouque, the defendant's vendor, was appointed their testamentary tutor by their surviving parent; that he accepted the trust, appears by the inventory, an authentic instrument, in which he takes the title of tutor. This circumstance, we consider as conclusive evidence of his acceptance of the trust. Our statute expressly provides, that a succession is accepted expressly when the heir assumes the quality of such, in some authentic or private instrument, or in some judicial proceeding. Civil Code, 162, art. 77. A succession is accepted tacitly, when some act is done, by which the intention of being heir might necessarily be supposed. Id. The principle here must be the same, as ubi eadem est ratio eadem est lex. We find Fouque's express and tacit acceptance of the tutorship; for he assumes the quality or title of tutor, by subscribing an act, in which it is given him; his assistance as tutor to the inventory, must he presumed to have had in view the giving faith and regularity to the inventory, to which the law imperatively demands the presence of the tutor. Hence the presence of Fouque is an act from which his intention to be tutor must be necessarily supposed.

From the date of the inventory, his property was tacitly bound. The property of the tutor is tacitly mortgaged in favor of the minor, from the day of the appointment of said tutor, for the security of his administration, and the responsibility which results from it. Id. 72,

art. 75.

Fouque was appointed tutor by the will of the plaintiffs' mother. The date of that instrument is not the period at which the responsibility begins; for the will itself had no validity till the death of the testatrix. Whether on the tutor's acceptance, this responsibility does not begin by relation, on the day of the death of the person appointing him, is not a question necessary to be examined in this case. Being of opinion that the presence at, and subscription of, the inventory, is an act which evinces the intention to accept; the acceptance must be considered by us as complete on that day. On the seventh day of December, the responsibility of Fouque began, and the tacit. lien attached on his property. The defendant, who afterwards, to wit, on the 22d of June, 1811, purchased Fouque's slaves, acquired them cum onere.

The plaintiffs have shown, by the highest legal evidence, the record of a suit, in which they obtained judgment against Fouque, their tutor, that he is indebted to them in that capacity. They have,

* MATHEWS, J., was absent.

[Bernard et al. v. Vignaud.]

therefore, completely shown, that the slaves purchased by the defendant from Fouque, are bound for the payment of their claim.

The defendant contends, that the presence of Fouque at, and his subscription on, the inventory, was not an administrative, but only a preparatory act, which did not give rise to a tacit lien on his estate. There cannot be any doubt that the law which requires the presence of the tutor at the inventory, imposes on him the obligation to see that it be faithfully made; and consequently, renders the tutor liable to indemnify the minor, in case any loss ensues from the tutor's negligence or collusion. If, therefore, in the present case, Fouque had sanctioned an inventory, in which a part of the estate was omitted, he incurred a responsibility, and his estate was ipso facto bound.

The 3d sect. of the act of 1813, ch. 49, 1 Martin's Dig. 704, n. 3, expressly provides, that minors shall not lose the benefit of their tacit lien on the estate of their tutors, although there may not be any record of it.

Fouque having neglected to take the oath, and give the security which the law requires from all tutors, except those by nature, to provoke the appointment of an under tutor, or take letters of tutorship, are circumstances which cannot alter the extent or nature of his liability.

It does not appear to us that the district court erred in rejecting Fouque, when he was offered as a witness by his son-in-law. The law excludes ascendants.

The affinity of one of the married persons with relations to the other, is reputed to be in the same line and degree in which they are related to the latter. 1 Pothier, Marriage, 151.

So the affinity of the defendant with Fouque is in the first degree of the ascending line.

The plaintiffs' judgment against Fouque was proper evidence in the present case; the law requires the mortgagor to obtain judgment against the mortgagee, when the property is in the hands of third persons.

The judgment of the defendant against the syndics of Fouque, is evidence of his claim.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that judgment be entered in favor of the plaintiffs and appellants, for the amount of their claim, as stated in the judgment against Fouque, to wit: first, for the sum of 3584 dollars and 38 cents, with legal interest thereon, from the 2d of July, 1812, till paid;-secondly, also interest upon the further sum of 1265 dollars and 62 cents, from the 2d of July, 1812, to the 22d of July, 1813; thirdly, also interest upon the further sum of 1050 dollars, from the 2d of July, 1812, to the 20th of May, 1814; and fourthly, for the sum of 53 dollars, being the amount of costs in the suit against Fouque, together with costs in both courts. And it is further ordered, adjudged and decreed, that if the defendant and appellee does not pay and satisfy the amount of

[Bernard et al. v. Vignaud.]

this judgment, within ten days from its notification, the slaves mentioned in the petition, be sold, or so much of them as will be sufficient.

A rehearing was asked and had chiefly on the question of the incapacity of the defendant's father-in-law as a witness.

Livingston came to the following conclusions: that under the law as it stood before our statute this relationship by affinity was a good objection to a witness, but that since our repealing statute of 1805, no other objections are good but those created by that statute or the Civil Code, and that no other relations but direct ascendants or descendants being contained within those exceptions, no other relation will disqualify.

The court now reversed its opinion, and pronounced the father-inlaw not incapacitated as a witness.

(10 Martin, 554.)

PORTER, J. A rehearing has been granted in this case, and the first question to be decided is, whether the father-in-law of the defendant was a competent witness on the trial of the cause.

The counsel who argued this case, have taken great pains in bringing forward every authority which bears upon the question; and the court has been furnished with abundant materials on which to form a correct judgment.

After all that has been said, I think, however, it will be found that this question lies in a narrow compass; and that it must be decided on the meaning which shall be attached to certain expressions used in our Code and statutes.

It appears very satisfactorily, that in Spain, persons standing in the relation of the present witness could not testify. Whether this was in virtue of any expressions of their positive laws excluding them, or whether it was the consequence of a system, which acting on different principles from our own, multiplied objections to the competence, and disregarded those which go to the credit, need not be considered. The first and most important inquiry is, what change has been introduced here on this subject by legislative enactment?

By an act passed in the year 1805, 2 Martin's Dig. 160, it is provided, that no free white witness shall be disqualified from testifying on the ground of being incompetent, unless such witness shall, at the time of producing him, be interested or infamous; and all other objections shall go to the credit, not to the competence.

This act made the father-in-law competent to give evidence in cases similar to that now before us. And it is an important observation, and one which it is necessary to bear in mind, when we come hereafter to consider the effect of certain expressions in our Code, that this law did not alone enable witnesses to testify who were before excluded; but that it introduced a complete change on this subject in our jurisprudence: expunged at once all the minute and particular distinctions which formerly existed, as to persons connected with the par

[Bernard et al. v. Vignaud.]

ties in the suit, or subject to their influence; and by restricting the objections which go to the competence, and increasing those to the credit, established an entirely new system as to evidence and proof.

From the passage of this law, until the promulgation of our Code, the witness rejected in this cause could have been heard. The jury, or the court before whom he gave evidence, it is true, were authorised to take into consideration the relationship in which he stood to one of the parties, and it might affect his credit. But he was clearly competent, and remains so, unless it has been since declared by the same authority, that his testimony cannot be received.

The Code, 312, art. 248, after stating who are competent witnesses, declares that ascendants cannot testify in respect to their descendants, nor descendants in respect to their ascendants. These expressions, it is contended, exclude the father-in-law. The counsel for plaintiffs supports this conclusion, by reference to the laws of Spain; and has introduced a variety of authorities to show that, by its jurisprudence, expressions such as those, include ascendants by affinity, as well as consanguinity. He has not proved this position satisfactorily to my mind. Admitting that he has made it doubtful, we must then consider, if making it so can repeal a former law, and that too, in a case where, as far as I can ascertain, the intention and policy of the lawmaker are directly opposed to the doctrine for which he contends.

The first difficulty which suggests itself to the mind, on the perusal of the passage cited, is, that if we adopt the construction which the plaintiffs contend for, we affix to the word ascendants, a forced meaning, very different from the ordinary sense in which mankind understands them; and in doing so, violate a rule for the construction of statutes which teaches us, "that the words of a law are to be understood in their known and usual signification-their general and popular use." Civil Code, 4, art.

Another difficulty presents itself. If we say that by ascendant is meant the father-in-law, how shall we construe the same words when we are about to ascertain who are forced heirs? It being contrary to the known principles of our laws, to consider as such a relation by affinity.

The first objection is met on the part of the plaintiffs; by contending that the words must be taken in their legal sense; and the second, by showing that according to the law, as it stood previous to the enactment of the Civil Code, it was provided, that ascendants by affinity could not inherit.

The plaintiffs still further insist, that under the construction contended for, a man might marry his wife's mother, as the law makes no distinction in that article, where it forbids ascendants and descendants from intermarrying. To this the defendant replies, that the law of Spain expressly prohibited them. Par. 4. tit. 6, l. 5.

Thus, it appears, that the plaintiffs and defendant endeavor to escape from the inconsistencies into which this construction would lead them, by referring the court to the former laws of the country, and they

[Bernard et al. v. Vignaud.]

have succeeded perhaps, in showing that the expression ascendants in our Code does, in the one instance, exclude those by affinity, and in the other, include them; or rather they have proved, that when the legislature used these words, they did not, in either of the cases put, conceive they were at all acting on the rights or duties of relations by affinity.

How then stands the question before the court, in relation to witnesses? Why, according to my opinion, ascendants by consanguinity were alone meant. But admitting, and it is the utmost the defendant can require, that it is doubtful, if it did not extend to relations by marriage; this will not be sufficient to repeal the former law, which rendered the witness competent. More must be done than raising a doubt; the law must be clearly repealed. Civil Code, 6,

art. 24.

If we have recourse to the intention of the legislature as a guide, it is very evident to me that they did not contemplate augmenting objections to the competence of witnesses further than was absolutely necessary; and that the article which has given rise to this discussion, was passed in the same spirit, and with the same view as the act of the legislative council already cited.

I have examined, with attention, all the authorities cited by defendant's counsel. They fall far short of establishing that whenever the words ascendants and descendants are used in law, they literally mean those who have become so by marriage.

The objection taken on the ground of interest, is too remote; and on the whole, I think the witness was competent.

I am, therefore, of opinion, that the judgment of the district court be annulled, avoided and reversed, and that the cause be remanded for a new trial, with directions to the district judge not to reject, as an incompetent witness, the father-in-law of the defendant, unless objections should be made to his testifying other than appears on the record now before this court.

MARTIN, J. I think the district judge was correct in rejecting the testimony of the defendant's father-in-law.

It is admitted, that in Spain he could not have been a proper witness; but held, that, under the Civil Code, the objection goes only to his credibility.

This would be correct if, as the defendant's counsel urges, the word ascendants had but one signification. I think it has two.

Lato sensu, it includes persons related or connected in the ascending line, by consanguinity or affinity; and in a more restricted sense, it includes only those related by consanguinity. Ascendentes sunt affines vel consanguinei. Gregorio Lopez.

When a word has more than one signification, no party has a right to choose ad libitum that in which it is to be taken in the argument; it must be understood secundum subjecti materiam.

Consanguinity is the basis of the laws which regulate the degrees