delivered the opinion of the court.
The defendants and appellants, show for errors in the judgment and proceedings in this case; 1st. That the injunction was sustained on a ground not at issue, it being granted on the allegation of payments made on account of the debt, and not of any irregularity or want of sufficient evidence before the judge in chambers, where the order of seizure was granted ; and 2d. That the court erred in rejecting certain interrogatories propounded to the plaintiff, relative to the consideration for which certain receipts were given.
I. The original transfer of the mortgage to the present plaintiff, appears to have been by act under private signature. The transferor afterwards went before a notary public and . . , two witnesses, with a copy or the act of transfer and acknowledged, that the, act of which that was a copy, was his proper act, and that his signature is affixed to the original., On presenting this instrument, together with a copy of the act of mortgage, the order of seizure was issued by the judge in chambers. We are of opinion that this instrument furnishes authentic evidence of the transfer, without any proof of the act sous seing privé. The tenor of that act is set forth; and according to article 2251 of the Code, the production of the primordial title is dispensed with, whenever the recognitive act specially sets forth its tenor. The effect of the transfer to a third person as it relates to the rights of the debtor, is a . . . , . f ’ distinct question which does not arise in this case.
Where ¿mortgage debtor offers certain, receipts as evidence of paymenls made to the assignor of the mortgage, but which bear date more than a year before any payments were due, and he is interrogated on •oathbyllielransferree of the mortgage, to say whether the receipts were not given for money won at play and gambling 5 and if not, what was the consideration : Held, that the party cannot be dispensed by the court from answering; and that the character of the receipts, and the circumstances under which they were given, should be inquired into.II. The defendants in their answer allege that, certain receipts, given by their assignor, purporting to be for money paid on account of the debt in question, w7ere obtained through fraud, error and deceit," and that they were given for gambling and at gambling. At the time the receipts bear date, no part of the debt in question was due. They are dated February 9th and 10th, 1831, and the second payment fell due in' all the month of March, 1832, and the amount overruns that instalment. The court at first ruled the plaintiff to answer on oath, whether the consideration of the receipts was not for money won at play and gambling, and if not what was the consideration; but afterwards, on motion of the plaintiff, rescinded the order and dispensed with his answers. To this, defendants excepted. We think the court erred in declining to inquire into the character of those receipts and under what circumstances they were given. They all bear date more than a year before any part of the money secured by the mortgage was due, and if founded on a gambling consideration, it is at least doubtful whether the law will lend its aid to render them available to the holder, either by direct action or by way of exception.
It is, therefore, ordered, adjudged and decreed, that the. judgment of the District Court be annulled and reversed; and it is further ordered, that the case be remanded for a new trial, with directions to the court to require the answers on oath of the plaintiff, to the interrogatories annexed to the defendants’ answer, and that the plaintiff pay the costs of the appeal,-