Same Case — On a Re-hearing.
THE judgment of the court; on are-hearing, was pronounced by
Rost, J.This is a contest between the wife of Blanchard and one of his judgment, creditors in relation to a credit of |500, seized by the latter as the property of Blanchard. Mrs. Blanchard claims a .privilege upon this credit for the restitution of her dowry.
*792In April, 1837, when Mrs. Blanchard was little over fourteen years of age, her father contracted a partnership,ira commendain, inher name, with Bernard Laudumiey, and put into the firm a sum of $8,000, which he stated belonged to her. The ensuing year he entered into a similar contract in her name, with Joneau, Metoyer Co., and paid into that firm, ten thousand dollars on her account. There is nothing to show the origin of this money, or that it previously .belonged to the daughter, and there is a very strong probability that it did not. In January, 1839, Mrs. Blanchard was married, and constituted, herself, these two amounts in dowry by the marriage contract.
On the first of April, 1839, the partnership with Laudumiey was dissolved, and it results from the testimony of Mr. Laudumiey, that he paid Mr. Benoisl, the father of the plaintiff, $9,500; it being the amount received from him, in commendam, and the profits accruing thereon under the contract of partnership.
On the first of April, 1839, the sum purporting to have been settled as dower, was in the possession of Benoist, and there is no evidence it was ever paid by him to Blanchard. The acquittance of Blanchard to Laudumiey, was executed out of the presence of the latter; it has reference to a settlement previously made, and does not state that any money was paid in presence of the notary. Although admissible in evidence, it is insufficient perse against auditors, itshould be supported by such corroborating circumstances as would exclude all reasonable doubts of its truth. We think that those circumstances are wanting. We are satisfied that the money was originally BenoisVs money; he could not make his minor child a partner in a commercial firm, and was himself a partner in disguise; at the dissolution of the firm, he received the capital put in and his share of profits, and, under the facts of the case, it is not an unfair presumption that he kept the amount, and that whatever form his liberality to his daughter might assume on the public records, it was not intended to take effect while he lived.
From April, 1839, to March, 1841, there are, in the record, receipts of Blanchard to Laudumiey, Joneau, Metoyer Co. and Benoisl, amounting together to $31,725. On the 21st of April, 1842, he was sued by his wife for a separation of property and acknowledged the full amount claimed. Judgment was rendered against him for it, and the execution issued on that judgment was returned, “no property found.”
There is nothing to show the origin of any of the claims of the wife or the losses, which sweptfrom the husband this large sum of money, in so short atime. Upon a renewed and more minute examination of the evidence, the whole affair appears to us a paper case, and has not the requisites of satisfactory judicial proof.
It is not shown that anything was ever made on the drafts, which Blanchard acknowledged to have received from Joneau, Metoyer 8f Co. at the dissolution of their partnership; nor does the notary state that the drafts were deliverd in his presence.
We are of opinion, that the judgment should be reversed, the rule discharged, and the seizing creditors allowed to proceed under their, execution.
It is therefore ordered, adjudged and decreed, that the judgment rendered by this court be annulled. It is further ordered and decreed, that the judgment of the court below be reversed, the rule discharged, and the seizing creditors allowed to proceed under their execution; the appellees paying the cost of the appeal.