HOLMES vs. HOLMES, 9 La. 348

Bullard J., delivered the opinion of the court. This case was before us at, the May term, 1834. (See 6 Louisiana Reports, 463.) It was then remanded for a new trial. On a subsequent- trial the jury found a verdict for five hundred dollars, in favor of the plaintiff and the defendant has appealed. His co.unsel relies, for a reversal of the judgment., on a bill of exceptions in the record, on an exception to the right of the husband to institute this action in his own name, which was overruled by* the court, and on the ground that the verdict is contrary to law and evidence.

The bill of exceptions was taken to the admission, by the court, of the depositions of Holbrook and Hall, which were objected to, on the ground that the commission issued irregularly ; that reasonable notice was not given of the time and place of taking the depositions, and finally, that it does not appear that the depositions were taken at the time and place specified in the notice.

We do not think it necessary for a just decision, of this case to examine the questions raised by this bill of exceptions, because it appears by the statement of facts, that the testimony of one of the witnesses, Holbrook, taken on commission before a different commissioner, was read in evidence without objection, and the deposition is in the record.

It was, therefore, quite immaterial whether the other commission was correctly executed or not, as relates to the testimony of Holbrook; and as the witness Hall testifies to the same facts, and no attempt has been made to impeach the credibility of Holbrook, we cannot suppose that the rejection of Hall’s deposition would have varied the result of (.he trial. In support of the exception to the competency of the plaintiff to maintain the action in his own name the defendant relies op

article 107 of the Code of Practice. That

article declares that husbands have under their control the personal and possessory actions to which their wives are entitled; therefore they can proceed judicially and in their own name, for whatever relates to the preservation of the dotal property, as well as to the recovering of the debts due them, these being under their administration; but the real actions of the wife must, be brought by her. This

article establishes a clear distinction between the personal and real actions of the wife. This must be considered either as the personal action of the wife, or as resulting from the violation of a contract made during the existence of the marriage, with the consent of the husband, and consequently regarding the-communily, and in either case the husband has, in óur' opinion, a right to prosecute it in his own name, and the exception was properly overruled. On the merits, the matter was submitted to a jury, and in-our opinion the evidence in the record fully justifies the verdict. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.