Shewell v. Raguet ( 1841 )

Maetin, J.

delivered the opinion of the court.

The defendant is sued on an account for goods and merchandise sold and delivered to him in the State of Pennsylvania; he being at the time a resident of the State of Ohio. He pleaded the general issue; prescription and a discharge from his debts under the insolvent laws of Ohio; and he is appellant from a judgment against him.

There has been no proof of the account administered, except the testimony of one witness, who deposes that being employed to collect this debt, he presented the aeeount to the defendant in Texas and was answered that it was correct and he received a horse valued at one hundred dollars in part payment.

The counsel for the appellees contends that the debt is sufficiently proved by one witness without any corroborating circumstances, because such proof suffices in the State of Pennsylvania, where the debt was contracted ; the laws of that State in this respect being in evidence; that if any corroborating circumstance is required, it results from the pleas of prescription and discharge, and indeed that these pleas are a waiver of tha general issue.

We are not ready to say that if the res gesta in Pennsylvania, was proved by a witness present at the time of the contract, such proof would not suffice. But we have before us evidence of a fact, which happened in the Republic of Texas, long after the contract. The case is not before us on evidence procured at the time the contract was made, according to the lex loci contractus. It must therefore be tested according to the rules of evidence in [469] this State. According to these there must he some corroborating circumstance to support the testimony of the witness. La. Oode, 2257.

We do not discover any corroborating circumstance in the plea of prescription ; which is, that the suit was not brought in due time. The discharge pleaded in this case is under a strong protestation, that the debt was never due, and the plea is not inconsistent with the non-existence of the debt. Neither of these pleas is a waiver of that of the general issue.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be a judgment of nonsuit against the plaintiffs, with costs in both courts.