Volume 1 — Martin's Louisiana Term Reports (1809–1830)

THIS was an action brought to recover the price of a negro man sold, with his wife and children, to the plaintiff, at public auction, by the defendant, consignee of a cargo of negroes. The petition alleged that the negro man, who died ten or twelve days after the sale, had the seeds of the fatal disease in him before, and therefore the plaintiff was entitled to recover the consideration money.

<p>No appeal lies from a Judgment of the Superior Court of the late Territory.</p>

<p>Carpenter repairing a ship for a fixed price, loses his materials and labour, if the ship be destroyed, before the work is finished.</p>

The plaintiff in this case claimed the sum of eighteen thousand seven hundred dollars on a mortage. The mortgage is void, for the interest was included in, and made part of the principal, and computed at twelve percent, which is more than the law allows. Recopilacion de las leyes de Castilla.

<p>A trial by jury cannot be had in the Supreme Court.</p>

<p>This was an action brought to recover one hundred dollars, the amount of a bank-note of said bank, the lower part of which was torn or worn out so that the signatures of the president and cashier were missing.</p> <p>Two of the tellers deposed that they believed the note to be a genuine one, and that the blanks had been filled up by them.</p> <p>The testimony of the cashier of the bank of the United States was introduced. This gentleman testified that if a bill of that bank had been presented to him in the same plight, as the one before the court, he would have thought it his duty to pay it—that the bills of that bank were first signed and the blanks afterwards filled up. Hence on seeing a bill properly filled up by the clerk intrusted with this part of the business of the bank he had a moral certainty that it once had the signatures of the president and cashier.</p> <p>The tellers of the bank being again examined, deposed that if the bill produced had been emitted by the bank, it must have been issued on the 2d of April 1805, when the operations of that institution commenced, on which day a very large sum was issued—that the bills then issued had the blanks filled up before they received the signatures of the president and cashier—that no notice is taken of the numbers of the bills issued by the bank, the amount only being recorded—that in a particular instance a counterfeited bill had appeared so well imitated in the engraving and paper, that the signature of the president had afforded the only clue in detecting the imposition.</p> <p>On this testimony, Duncan for the plaintiff, hoped for the judgment of the court.</p> <p>If the bank can be called upon to pay bills which are not sanctioned by the signatures of the president and cashier, who are the only officers by whose acts they may, in instances like this, be bound: there will be very little safety for them, and no security against the frauds of counterfeiters. Let us therefore consider—</p> <p>1st. Whether the payment of a note, deprived of the signature, could be required of an individual ?</p> <p>2d. Whether there be any difference in the case of a corporation ?</p> <p>I. The principles of the civil and Spanish laws which regulated this territory in the year 1805, when the note was issued, are in unison with those of the common law of England. Debts like all other kinds of obligations are to be proven by an authentic title or matter of record —by the signature of the debtor or by witnesses. Each of these modes of proof has its particular rules, which we are not to confound.</p> <p>The plaintiff does not pretend that his claim is proven by an authentic title or record, or by witnesses, but by a writing which is not sanctioned by the signature of the defendants.</p> <p>If the party writes an instrument with his own hand, or directs another to do it for him, or seals or causes it to be sealed with his seal, the instrument, if denied, shall not be admitted against him, Unless his adversary prove that it was written or sealed by him or by his order. L. 114, tit. 18. Partida 3.</p> <p>The principles of the civil law are conformable to the Spanish law.</p> <p>No judgment can be obtained upon anote, unless the defendant’s signature be admitted.—If it be denied, it must be proved. 2 Pothier on Obligations, part 4, ch. 1. art. 2, § 1, no, 708.</p> <p>If therefore the acknowledgment or proof of the signature be indispensable, how can judgment be had on an unsigned note ?</p> <p>An instrument without a signature can only be considered as a beginning of proof. Id. no. 711. How can a note, the signature of which has been torn or destroyed, have a greater effect?</p> <p>It will perhaps be said that if there were not any note at all, or if the note had been lost, the plaintiff might prove the existence of the obligation. This is true. But how should this proof be made ? In the first instance, by witnesses deposing to the consideration and the promise: in the other, to the existence of the note and the loss or destruction of it. Id. no. 781. If therefore the plaintiff were to prove that the note produced was seen in his hands with the signatures of the officers of the bank, who have the power of binding the corporation, the case would be made out, but he rests his claim on the proof that the blanks in the note were filled up by the clerks of the bank. How dangerous will it be to admit the sufficiency of such testimony! In common practice many persons in paying their notes think it sufficient to take them up—Some destroy them; and others more cautious cancel their signature and file the paper. If one of those cancelled notes, which seldom are kept with extraordinary attention, happened to fall into the hands of the payee, he might recover payment, by tearing the cancelled signature. He might prove the note to be in the defendant’s handwriting, which would be conclusive evidence, if we take as such the testimony of witnesses who depose that the blanks were filled up by the ordinary clerks of the bank.</p> <p>II. Let us next enquire whether there be any difference, in the case of a corporation, like the bank of Louisiana.</p> <p>Corporations are artificial bodies, the affairs of which are regulated by the same principles as those of natural persons. The same principles apply to the obligations which they contract, and it seems natural to conclude that when sued, they are entitled to the same pleas and exceptions, and have the same means of defence as individuals.</p> <p>I have shewn that the proof on which the plaintiff builds his hope of success would be deemed insufficient, in the case of the note of hand of an individual; the difficulty must be much greater in the case of a bank note, the greater part of the body of which is printed, and the written part of which, except the signature, is in the hand of a person who has no authority to bind the corporation. To establish the doctrine contended for by the plaintiff would be to leave banks a prey to counterfeiters, by depriving them from one of their greatest safeguards, their dependence on the signatures of their head officers; and without protection against the frauds of their clerks, in whom from their situation, it appears no great confidence or trust is placed, as they have no power to bind the institution—who do nothing but to insert in blank spaces, the number, name of a fictitious payee, and date—none of which are of the essence of the obligation contracted.</p> <p>It is in evidence that if the bill before the court was really emitted by the bank, it was issued on the 2nd of April 1805, the day on which the operations of that institution began—that the bills then sent afloat were all filled up by the clerks before the signatures of the president and cashier were put to them—and that when bills are paid by the bank, no notice is taken, nor any entry made of the numbers. Hence it follows that proof of the bills of that emission having been filled up by the clerk is no evidence of the signing by the president and cashier, a circumstance which as to all these notes was posterior to the filling up—and that even if it be admitted that the bill was once signed, it cannot be ascertained whether it was paid and cancelled by tearing off the signatures.</p> <p>It behooves the plaintiff to prove—1st. That the signatures of the officers of the bank who have authority to bind the institution were to the bill, when it came to his hands. 2d. That it is by accident they have ceased to be there. Such at least is the proof which would be required of him if he had sued an individual, and certainly the court will not require less in a suit against a corporation sanctioned by the legislature, in whose safety most of the citizens of the territory are interested.</p> <p>The bill when it came to the plaintiff’s hands, had the requisite signatures or not. If it had, he might have prevented the accident which has deprived it of them, or be able to account for it. If he received it already mutilated, he was guilty of a gross neglect. In either case, he carelessly and voluntarily exposed himself to lose the amount of the bill. The loss is damnum absque injuriâ.—He must impute it to his own carelessness or folly. Damnum quod quis suâ culpâ sentit, sibi non aliis debet imputare.</p> <p>The veracity of the cashier of the bank of United States is not intended to be impeached— but we are on a question of law, which is not to be settled by witnesses.</p> <p>We contend that no instrument, an essential part of which is wanting, as the name of the parties or of the witnesses, can have any effect. Curia Philipica, 92, n. 34.</p> <p>This case is improperly likened to that of a lost instrument, the original of which must have been proven to be genuine, before evidence could be gone into of its contents, or a copy introduced.</p> <p>The question turns entirely upon the effect of the mutilation of the bill offered as evidence of the debt, which it is contended was cancelled by the destruction of, or could not exist without, the signatures.</p> <p>According to the laws of Spain and common law of England, the mutilation of an instrument in an immaterial part, does not impair its validity. 4 Rose’s Comyns, 168. Sedgwick’s Gilbert 93, citing 11 Coke, 27 a. 2 Strange 1160, Curia Philipica, 92 n. 34. This principle being established, it remains to be shewn that the signatures are not of the essence of the obligation. A note, in the handwriting of the maker, without his signature or subscription is good. 5 Rose’s Comyns, 94, 1 Strange, 399. Taylor vs. Dobbin. 2 Lord Raymond, 1376, Elliot vs. Cooper, 1 Strange 609. 8 Modern 307.</p> <p>Pothier, it is true, n. 771, considers such a note as a beginning of proof. Be this admitted, we are then to be allowed to complete our evidence: we have done so by the testimony of the tellers, and I trust satisfactorily.</p> <p>If this principle be correct in regard to the notes of individuals, it is much stronger in the case of a bank bill. The obligation of which it is in evidence, does not arise so much from the signatures of the officers, than from the circumstance of its having been emitted by order of the board of directors.</p>

<p>The Court now grave notice to the gentle-men of the bar, that hereafter they wiil expect to be furnished with a brief, or statement of the material points of the case from the counsel, on each side of a cause, at least one day, preceding that on which it is set for trial.</p> <p>Refusal of a new trial no ground of appeal.</p>

<p>No appeallies from a motion to discharge bail.</p>

<p>Stay of proceedings suspends process before and after judgment.</p> <p>Trustee privileged on trust estate.</p> <p>Sale made by sheriff, after a stay, set aside.</p>

The defendants moved for a commission to examine witnesses abroad on their affidavit, setting forth the names of the witnesses and the materiality of their testimony. The affidavit ought to have gone further and set forth the facts intended to be proven, in order that the court might judge of the importance of the testimony. It has hitherto been the practice to grant commissions without requiring such a disclosure as the plaintiff’s counsel calls for.

The plaintiffs had filed a petition praying that the defendants might be enjoined from further proceeding in building a bridge across the Bayou St. John, to the obstruction of its navigation, and in violation of certain rights secured to the plaintiffs by their act of incorporation. The injunction having issued, the defendants put in an answer, in the form used in the British court of chancery, negativing on oath, all the substantial facts alledged in the petition.

<p>George M. Woolsey, being in this city of New-Orleans, shipped on board of the brig Troy, a number of kegs, containing forty thousand dollars in silver, marked W. W. W. which he consigned to the plaintiff, and drew bills on him for the whole amount. The bills of lading expressed that the money was shipped as the property of the consignor. While the brig was floating down the Mississippi, a writ of attachment against the property of George M. Woolsey was put into the hands of the defendant (the sheriff of the district) who having overtaken the brig at the Balize, seized upon and brought the money to the city; whereupon the plaintiff brought his action for the recovery of the money.</p> <p>It was in evidence that the bills drawn by George M. Woolsey had been presented to, accepted and paid by the plaintiff, and there was attached to the petition an affidavit made before a notary public, in the city of New-York, to prove the property of the plaintiff in the money. The jury found a verdict for the defendant, and the plaintiff moved for a new trial.</p> <p>The verdict is contrary to law: From the moment that the bills of lading were signed by the captain, the property was divested out of George M. Woolsey and vested in the plaintiff, and it was no longer in the power of the consignor to destroy the right of the consignee; unless the former had arrested the money in transitû, in case the latter had failed, Abbot 232, and if property be consigned to meet an acceptance, it cannot be stopped in transitû, Abbot 238, for the right of stopping in transitû belongs only to the consignor and he can exert it only in case of the failure of the consignee. As to third persons, the delivery of the bill of lading is a deliverey of the property. 2 Term Reports, 7, 1 Johnston, Ludlow, vs. -. The bill of lading is the title by which the property is to be determined. 12 Mo. 156. Had this property been consigned to the person in whose favour the bills were drawn, there could not have been a doubt on the question, because it would have been a consignment to dishargea debt, and the property would have vested immediately on the receipt of the dollars by the captain. It is difficult to discover a great difference in the present case. The shipment was made for the purpose of satisfying a creditor.</p> <p>There cannot be a doubt that the money was shipped as the property of George M. Woolsey. It was at his risque and he must have borne the loss, if the brig had sunk before the attachment was levied. Neither the plaintiff, nor the person in whose favour the bills were drawn, had any interest or would have been affected by the loss of the vessel.</p> <p>The case might have been altered, if the bill of lading had reached the plaintiff’s hands, and he had accepted the bill in consequence of it, but before the arrival of the bill of lading and acceptance of the bill of exchange, the property was at least in abeyance and at the risque of the consignor. The consignee was not bound to do honour to the bill, nor to accept the consignment.</p> <p>It is said the consignor can only stop the goods in transitû, in case of the failure of the consignee. Is he not at liberty to stop them, if the bill of lading be not negociable, or while it remains unassigned, and can he not compel the captain to deliver them back as long as no assignment of the bill of lading has taken place?</p> <p>The general principle that the delivery of goods to the master of a ship, and his signing the bill of lading for them, vest the property in the consignee, cannot be questioned. The master then becomes his agent, and a delivery to him is a delivery to the consignee. If this position be correct, it follows, that as George M. Woolsey could not have stopped the goods, neither his creditors, nor the sheriff can exercise any act of ownership which he might not have exercised. He had totally divested himself of his rights to the property, except that of stopping it in case of the failure of the consignee. W. W. Woolsey's title was defeasible upon the happening of this contingency alone. It is the bill of lading that stamps the title on the property. It is the mercantile instrument which designates the ownership. 12 Mo. 156. No matter what the consideration may have been; like that of a bill of exchange, it cannot be inquired into. This is for the ease and facility of commerce.</p> <p>But it is said that the solution of the question, at whose risk was the money at the time the attachment was levied, will afford the proper criterion to determine who was the right owner; and that the money was at the consignor’s risque. This general rule has its exception, introduced for the convenience and safety of merchants. When goods are insured, the insurer runs the risque, without the property being in him. So in consignments, the consignor runs the risque, and is as the insurer. If this be not the case, how is the principle to be reconciled, that a delivery to the master is a constructive delivery to the consignee, and that delivery vests the property ?</p> <p>Again, it is said that the money when attached was the property of George M. Woolsey, and W. W. Woolsey had yet acquired no right. But as soon as the latter received the bill of lading and accepted the bill of exchange, without notice of the attachment, his right, if it were only inchoate before, became complete.</p> <p>Bills of lading, like bills of exchange, are transferable by endorsement, and the bona fide holder is the only person who can demand the contents, and in whom the property vests. If A. draw in favour of B. on C. who accepts, and D. a creditor of B. attaches in the hands of C. and the bill afterwards be endorsed to E. who had no notice of the attachment, E. will recover notwithstanding it. This is our case: the consignee’s right cannot be affected by the attachment.</p>

Action upon a note of hand. The ship Clara, owned by Foster & Giraud of New-York, being libelled in the district court of the United States, in New-Orleans, under the act of Congress, prohibiting the importation of slaves, 8 Laws U. S. 262, the defendants were desired by the owners to act for them, and, consequently, the ship being afterwards condemned and sold, they bought her in, and gave their note for the price to the plaintiff, the collector for the port of New-Orleans,…

<p>The plaintiff’s agent in Bourdeaux, shipped on hoard of the Catherine, of which the defendants were owners, and one of them master, a quantity of merchandise, for which Harrison, the master, signed bills of lading, engaging to deliver them at New-Orleans. The Catherine went to St. Thomas’s, in order to land some passengers, where the merchandise was sold, and the plaintiffs claimed a sum of about twenty-five thousand dollars, stating it to be the amount which he would have received from the sale of the merchandise, in cash, after deducting the freight, duties, and all other charges, if they had been delivered according to the bill of lading, deducting the sum of three thousand dollars paid him by LaChapella, which this defendant judged the plaintiff entitled to require from him, as his proportion of the sale at St. Thomas’s. Interest was also demanded.</p> <p>It was in evidence also that while the Catherine was at St Thomas’s, a British privateer was cruising off the island, a circumstance which determined the master, with the advice of some of the freighters, who were there, to sell his cargo, and proceed to New-Orleans in ballast.</p> <p>As the shipment was made in France, the consequences of it must be regulated by the laws of that country. They limit the liability of owners of vessels, for the acts of the master, and permit the owner to discharge himself by the abandonment of the vessel and freight. 1. Ordonnance de la Marine, liv. 2. t. 8. art. 2.</p> <p>Admitting that the contract is to be regulated by the laws of this territory, it would seem that damages, for the misconduct of the master, may be recovered from him and the owner in solido. But this severe provision appears mitigated by the provision that a master of a vessel shall give security to the owner for the value of the vessel and the damages which he may cause, Ord. of Bilboa 224: a provision which seems controlled by the obligation imposed on the officers of the customs in Spanish ports, to require surety from the owner to the amount of the value vessel and freight, before a clearance be granted. Curia Philipica 467. This reduces the liability of ship owners in Spain, to the same degree as the ordinance of France. The British statute of 7 Geo. 2. c. 15, contains the same provision, which is supposed to have been adopted by all the mercantile nations of Europe.</p> <p>Even, if the liability of La Chapella be to“ be measured by the ordinance of France, he ought to be charged to the whole extent of the plaintiff’s loss, inasmuch as Harrison was not only master, but joint owner, and the vessel went to St. Thomas’s in consequence of a preconcerted arrangement between the defendants, beneficial to themselves and evidently prejudicial to the plaintiff as it hazarded his insurance. The going into St Thomas’s being only a deviation, not a barratry, which is an offence, which can be committed against the owner of the ship only. If the master of a ship be also the owner, he cannot be guilty of barratry. Park 194, 1 Term R. 323.</p> <p>The French ordinance and the British statute were intended to afford protection to honest ship owners, against the dishonesty of captains, but not to present a legal shelter to those who participate in the guilt of the master. The latter statute expressly confines the relief to acts done without the privity or knowledge of such owner or owners. 3 Bac. Abr. 612, 613.</p> <p>We contend that the extent of the defendants’ liability is to be ascertained by a reference to the laws of this Territory. The Catherine was an American bottom. The plaintiff and both defendants are American citizens, and the master’s engagement to carry the articles had a reference to and was to have its completion in this Territory. By the ordinance of Bilboa, which is here part of the law of the land, and which the defendants have cited, it is the duty of the master of a vessel to give security to the owner to indemnify him against all losses occasioned by his misconduct. The inference is unavoidable that the owner is liable for the whole. The part quoted out of Curia Phili-pica goes the full length of the principle we rely upon. It is there stated that the owner is an-swerable in all respects for the acts of the master.</p> <p>This being an action sounding in damages, the only just criterion is the cash price of similar articles in the market of New-Orleans, deducting proper charges.</p>

<p>If there be a supplemental petition, & the judgment be on the original one, the suit will be remanded.</p>

<p>This was an action beginning by an order of seizure, obtained from the Judge of the City Court of New-Orleans, against five negroes belonging to the defendants, and founded on a mort-gage specially of five other negroes, (one excepted) than those embraced by the Seizure, and ge-nerally of all the estate of the defendants, executed, by them in the year 1808, at the Havana, where they then resided, for the payment of $ 1400, at the expiration of twelve months thereafter. The material facts set forth by the defendants’ plea and afterwards Admitted by the plaintiff, were as follows: the money was lent to be employed in a flourishing manufactory of earthenware belonging to the defendants, in the vicinity of the Havana, and was so employed. Before the expiration of the twelve months, the defendants were banished from Cuba, and all their property (excepting the negroes in question, who followed their master) had without any fault of theirs, been seized and confiscated under a general act of confiscation and banishment against all Frenchmen residents in the island; by which act of confiscation, &c. the proceeds of their estates were held by the government, subject in the first place to the payment of their respective Spanish creditors. The property of the defendants, so seized and confiscated was much more than sufficient for the payment of all their debts. The confiscation act points out the mode in which the Spanish creditors may apply for and obtain payment.</p> <p>The plaintiff is a Spaniard, resident at the Havana, where the property of the defendants pp seized and confiscated lies, and might have obtained payment out of the proceeds of the defendants’ property in the hands of the government.</p> <p>Upon this case judgment had been given for the plaintiff in the Court below, from which the cause came up by appeal.</p> <p>The judgment of the Court below ought to be reversed upon three grounds:</p> <p>1st. Because after the act of confiscation and banishment, neither this form of action nor any other could be sustained against the defendants in a court of justice in Cuba;</p> <p>2d. Because it is substantially giving effect to the penal laws of a foreign government;</p> <p>3d. Because as the proceeds of the defendants’ property seized by the Spanish government are sufficient for the payment of this debt, and are accessible to the plaintiff, and not to defendants—that judgment is contrary to equity and moral justice—and therefore not to be sustained in this court of equity as well as law.</p> <p>I. It ought to be reversed, because after the act of confiscation and banishment, neither this form of action, nor any other, could be sustained Against the defendants in Cuba.</p> <p>By the act of confiscation the defendants were - . . . ' „ , reduced to an actual insolvency.—By that act, the title to all their property in Cuba was divested out of them and vested in the government.—In Cuba, the parties to the contract, the security for its fulfilment and the mode of proceeding to obtain it were by that act all equally changed. If a remedy against the defendants could have been pursued by the plaintiff in Cuba, it must have been by an action, either in rem or in personam.— But the plaintiff could not have supported “ an order of seizure,” or any other process, in the ordinary form, against the property of the defendants,.in any of the judicial tribunals of the country, because, by the act of confiscation, &c.~there the supreme law of the land, all the property of the defendants vested ipso facto in the government. And by that act it was ordained that Spanish creditors of whatever degree should prove their debts .and solicit payment only in conformity to the mode therein pointed out. It would therefore have been as unnecessary and indecorous as inadmissible to have instutited an action in Cuba against the property of the defendants.-Equally was the plaintiff precluded by that act from any civil proceeding in personam against the defendants there. The government had jealously reserved to itself the exclusive privilege of pursuing the persons of the defendants, and that by the criminal mode of banishment. The execution of that sentence was wholly incompatible with the indulgence to any private individual of civil proceedings against the persons of the defendants.</p> <p>But, on the supposition that the defendants would,after the act of confiscation, have been liable to a real or a personal action in a court of justice in Cuba, could they not, in the one case, have pleaded with effect the act of confiscation, and in the other, is it not too revolting to justice and morality to suppose that after the seizure of all their property by the government, without their fault and subject to the payment of their debts, a court of justice would suffer the plaintiff in the first instance to imprison the persons of the defendants, and not compel him to resort to the sufficient fund held out by the government, which was accessible to him and not to them P If these pleas would have been effectual there, shall they not be here? Shall the plaintiff be permitted to pursue remedies here against the defendants, which would have been inadmissible in his own country—the very country where the contract was made, and where the defendants have experienced from the government a rigour they could not elsewhere have been exposed to ? So far was the plaintiff from a capability of maintaining an action in Cuba against the defendants, that he could dot lawfully even have received payment from them of his debt—any payment made to him, after the act of confiscation, would have accrued to the use of the government, he would have been obliged to deposit that money in the public treasury, and must have been content to receive back the amount of his debt, at such time, in such manner, and under such circumstances, as it pleased to prescribe. If the government had pleased to lay a tax on the debt of every Spanish creditor so received from the Spanish treasury, is it possible that any one would maintain that the Spanish creditors could in such case lawfully pursue the unfortunate exiles in foreign countries to compel them to refund the deficiency thereby produced ? If the plaintiff could neither sue nor receive payment from the defendants in Cuba, and that by a law of his own country which he was bound to obey—shall he not a fortiori be prohibited from suing here?</p> <p>“The civil law can hinder; or make void the “ obligation of a promise, or contract two ways, “or, by such an act as affects the promise, or “ contracter immediately, either by such an act “as immediately affects those to whom the promise or contract relates, and, in the mean time “ affects him, only remotely. And, further, where “ the act of the civil law affects him immediately “ it may be antecedent, or subsequent to the pro. “ mise or contract.” Rutherf. Inst. N. L. b. 2. ch. 6. § 11. p. 247. ***** "He bound himself by “the social compact to obey the laws: and "this obligation is antecedent to his promise or contract.” Ibm. 253. ***** “ If we « make a promise or contract by which any per-sob acquires a right, and the civil law takes from ‘‘ him the right so acquired, this act of the “ law affects him immediately and directly; but, “ at the same time will remotely and indirectly “ affect us and discharge our obligation.” Ibid. 254. The government then, by the act of confiscation, not only actually prohibited any future payment of their debt by the defendants to the plaintiff in Cuba, but it had a right so to do. It not only prevented the plaintiff from acquiring the right which he might otherwise have acquired of suing the defendants upon their contract in Cuba, but it exercised that power consistently with the principles of natural law. For it is most evidently just, that when the sovereign power in the state takes from an individual, without his fault, and only to effect a general benefit, the property with which he intended to discharge his debts, it should protect that individual from suits that might be instituted against him for not so employing the property of which he is thus deprived. This confiscation of the defendants’ property, to an amount sufficient for the payment of all their debts, and subject to such payment, may be not inaptly considered as the forced payment of a debt to a person constituted by law to receive it for the real creditor, and resembles payments made to curators, tutors, husbands, receivers of hospitals, &c. payments which would be valid, even though the money might happen not to be received, or enjoyed by the real creditor. Pothier,Traité des Oblig. part. 3, ch. I, § 3.</p> <p>“ Contracts are to be decided upon and exe-“cuted only according to the laws of the place “ of residence of the parties at the time of making them, unless another intention appear.” Pothier, Cont. de Société, § 159, p. 133. “ Dis- “ putes between foreigners or strangers to be de-“cided according to their own laws.” 3 Partid tit. 15, L. 15.</p> <p>“ The laws of every empire have force and are “obligatory upon all who are within its limits,” —“ and by the courtesy of nations, whatever laws “ are carried into execution in one government, “ are considered as having the same effect every “ where, provided they do not occasion a preju-“ dice to other governments, or those who are “ entitled to their protection.” 3 Dall. 370, note.</p> <p>So far as the act of confiscation has been carried into effect upon the property of the defendants in Cuba, they must be bound by it—but they are clearly released from all future obedience to a government which has banished them from its protection—with regard therefore to the miserable remnant of property which they have been able to withdraw from the sphere of confiscation, they are entitled here to the protection as well of law as of humanity.</p> <p>But how stands it with the plaintiff—a native and resident of Spain? He is to be viewed, as to this question, only as the indefeisible subject of the laws of his own government. It does not belong to him, a Spaniard, to alledge the invalidity of a Spanish act of confiscation. With regard to him, that act is absolutely obligatory, not only in Spain but elsewhere; not only so far as it is executed, but in whatever it is only executory. With regard to his claims, the title to the whole of what was the property of the defendants, is out of them and in the Spanish government. This is not only law, to him, but is equity, since, in the transfer of title effected by the act of confiscation his interests have not been neglected. If then a recovery could be had against the property of the defendants here, for this debt, the action ought to be instituted in the name of the Spanish government, to the benefit of which it would inure.</p> <p>II. This leads to the second ground on which the judgment of the court below ought to be reversed—viz: because it is substantially giving effect to the penal laws of a foreign government. What is the situation of the plaintiff under the act of confiscation, as.to this debt? He is entitled to demand payment out of the proceeds of the defendants’ property in the hands of the Spanish government. Instead of so doing, he institutes a suit against the defendants in tins country to recover from them payment of the very debt for which the Spanish government would account to him. Whatever surplus may remain in its hands after payment of Spanish creditors is to become a forfeiture to the state. If the plaintiff recover in this action he thereby precludes him-self from demanding from the Spanish treasury that amount, and which he would be entitled to receive. Does it not follow irresistibly, that a recovery by the plaintiff in this suit, would inure substantially to the benefit of the Spanish government—if, indeed, he would not be obliged to account to it immediately as its agent for the money so recovered here? Nothing but the glaring impossibility of that government sustaining a suit in its own name to recover the forfeiture of the remainder of the defendants’ property now pursued by the plaintiff would prevent such an account being exacted : and shall we suffer that to be done in our courts indirectly, which we would reject with indignation if directly demanded of us ?</p> <p>III. As the fund in the hands of the Spanish government is sufficient for the payment of the defendants’ debts, and is accessible to the plaintiff) and not to the defendants, the judgment of the court below is contrary to equity, and therefore ought to be reversed in this court of equity as well as law. And in support of this ground we rely on the principles laid down by the Lord Chancellor in the case of Wright vs. Nutt, in which he says among other things—There is “ no doubt in the world, but that according to “ the general principles of a court of equity, “where a man who has not actual possession of “his debt (for if he had actual possession, I “ should conceive, that it would be payment even ” that might be available in a court of law, but if “ not so at law, it would at least in a court of equi-“ ty be considered as actual payment, and that a man was vexed twice for the same demand upon “ some formal difficulty of making the fact of pay- “ ment available at law;) but has the power of " paying the debt depending upon his own act, “ whether he will resort to a particular fund or “ not, if instead of making use of that power he “ will pursue the debtor, it would be too much “ for a court of equity to permit to him to sue the “ person and relinquish the exercise of that pow- “ er which he has at the time in his own hands.</p> <p>“ This case is attended with a circumstance “ still more peculiar; which is, that it is totally “ impossible for him to assign over that right to “ the party debtor here, in order for him to make “ it available.” 1 Hen. Black. 120.</p> <p>The contract between the parties was absolute, and it was not in the power of the Spanish government to abrogate ft.—And the defendants were morally bound to fulfil their engagement. The many political misfortunes and losses of the defendants could not mar the plaintiff’s title to the payment of a lawful debt. He was under no legal or moral obligation to call upon the Spanish government for payment of a debt not contracted by it—no equitable circumstance in favour of the defendants, however strong in a question between them and the Spanish government, can take from him his legal vested right.</p> <p>A debt is created by contract and exists till the contract is performed. The interference of government to exonerate a debtor from the performance of his contract, whether upon or without conditions, or to take from the creditor the protection of the law, does not in strictness destroy the debt, though it may locally the remedy for it. The debt remains, and in a foreign country payment is frequently enforced. Per C. J. Ellsworth, Hamilton vs. Eaton, Martin's notes, 76.</p> <p>The passage cited by the defendants’ counsel, out of Rutherforth, is certainly not law. It is not true that the law can make void the obligation of a promise or contract, though it may, what to a dishonest debtor is the same thing, withhold from the creditor the legal means of enforcing compliance ; it may create a legal impediment, it may destroy the remedy, but the right of the creditor may only be destroyed by his own act, until the debtor fulfils his obligation.—Parties alone can destroy ormodify contracts.</p> <p>The obligation of contracts is not only founded on moral principles, but that necessity of individual confidence so essential to the well-being of man, and indispensable to the existence.of human society. The moral is scarcely distinguishable from the legal obligation, and the collected power of the society immediately follows to enforce it</p> <p>By the law of nations, contracts between individuals of different nations shall meet with no legal impediments to their execution in time of peace, and shall have the benefit of the constituted authorities of the country where the creditor finds the debtor to enforce their fulfilment.</p> <p>Legal impediments are temporary and local. War does not extinguish the rights nor dissolve the obligations of individuals of the belligerent nations, it only suspends the right of bringing suit, during the continuance of the tear.</p> <p>The statute of limitation affects the remedy, but affects it locally only, within the dominions of the power who passed it.</p> <p>In Rugley vs. Keeler, 3 Johnson, 261, the Superior Court of the state of New-York held that they were not governed by the statute of limitations of another state, in actions or contracts entered into there. The same decision took place, Lodge vs. Phelps, 1 Johnson's cases, 139, and in Pearsall & al. vs. Dwight & al. 2 Mass. Reports, 84. In all those cases the plaintiffs could not have sued in the states in which the contracts were made, but were allowed to recover in another state: because the legal impediment which existed in the place where the contract was made was local.</p> <p>The act of confiscation did not destroy the debt, for, independently of its effect being local, it is temporary. If it were repealed, whatever might have been the consequences of it during its existence, it cannot be doubted but the remedy would be revived.</p> <p>During the war of independence, debts due to the enemy were confiscated, and American debtors were compelled to pay what they owed to British individuals into the public treasury. It cannot be doubted that these acts did not destroy the debt; they affected the remedy. A clause in the treaty made by Mr. Jay provided that British creditors should meet with no lawful impediment to the recovery of their debts. Art. 4, and in the case of Hamilton vs. Eaton, already cited, the Circuit Court of the United States, presided in by Chief Justice Ellsworth, determined that the confiscation act of North Carolina had not destroyed the debt, but was only a lawful impediment to the recovery, essentially temporary, the duration of which, was put an end to, by the repeal of the confiscation act in the treaty.</p> <p>Eaton, before the year 1777, had given his bond for one thousand pounds to Hamilton. In that year the property of British subjects was confiscated by law, and commissioners were appointed to call on all persons suspected to be indebted to British subjects, examine them on oath and enforce payment of the debt into the treasury by committing the debtor. Hamilton having joined the British, the commissioners called on Eaton, and on oath was compelled to declare he owed one thousand pounds to Hamilton and to pay the money into the treasury, in order to avoid imprisonment. Yet, the debt was held not to be extinguished, and the Circuit Court was unanimous in the opinion that the confiscation law had created nothing but a local and temporary impediment to the recovery of the debt, without affecting its existence.</p> <p>We therefore contend that the Spanish confiscation act is of the same species—and consequently is only a lawful impediment; if it be so, its effect is local and temporary. As to place it is, to give it the utmost extension to allow it to operate throughout the dominions of Spain ; for, it is only the act of the government of the Island of Cuba—as to time, the impediment must cease to have effect, as soon as the act which created it is repealed. As the plaintiff has brought his suit in a country, within which the act of the government of Spain cannot have any effect, he trusts he will be allowed to recover.</p> <p>A lawful impediment to the recovery of a debt, in the country where it arose, may without discharging the moral obligation of payment, be universal. This is a fundamental principle of insolvent laws. The title of assignees of creditors of an insolvent in one country, is recognised throughout the world. A discharge of an insolvent under a law of one country from debts contracted there, is a legal impediment to their future recovery &om him, not only in that country but in every other—and yet his moral obligation to pay his debts, is undiminished. It is far? therefore, from a consequence, that because an impediment to the recovery of a debt in one country is only a legal, and is not, also, a moral one, that it must be merely local in its nature, and should be in-operative in other countries.— That must depend on the nature of the impediment and the principles of justice, or sound policy on which it may be founded. It is the policy of commercial states, and it is for the benefit of commerce, that the impediment to the recovery of anterior debts from a discharged insolvent, should be both permanent and general. And there is a strong analogy between a discharged insolvent, as to a suit that might be instituted against him for the recovery of a former debt—and the defendants, as to the present action, in this respect, that in both instances their estates have passed into the hands of persons indicated by law to protect the interests of creditors.—The act of confiscation has pursued the principles of an insolvent law both as to the mode of classification and payment of Spanish creditors, and in precluding the institution of private suits against their debtors who were the objects of it. And the defendants have thereby, in fact, been deprived of an ample estate which has vested in the government as a fund, in the first place, for the payment of their Spanish creditors. That fund is more than sufficient for the purpose—but, there is no reversion of the surplus to the former owners. Do not then the principles of sound policy, of natural law, of moral justice, all equally require that this court should in the present case, adhere to the principles which regulate it in cases arising under foreign insolvent laws? Ought it not to judge the plaintiff by the strict rule of his own laws? and deny him every remedy that could not be indulged to him under the act of confiscation? Potter vs. Brown, 5 East 131. Shall we not otherwise be aiding the execution of the penal law's of a foreign government? If, in the present case, the plaintiff should prevail, if the funds seized by the Spanish government are not to be allowed to operate the extinction of their Spanish debts, the defendants would be rendered unnecessarily insolvent. The act in question was not penal but beneficial and remedial to the plaintiff Can then the defendants be morally obliged to provide a further payment for this favored debt at the expense of their other creditors, and to the beggary of their offspring? Will he receive any injustice by their refusal? Even if the Spanish government had not a right, for their own benefit, to extinguish the debt due to one of their subjects, may they not, at least while they preserve the debt, modify the form and manner, and prescribe the time of payment, and thereby morally as well as legally discharge the debtor ? Is it not flagrant iniquity in the plaintiff then, to turn his back upon the offered payment of his debt, only to pursue and harass the exiled defendants, and rob them of the last of the wreck ? And has not a court of equity power to repress the iniquity, and compel the party to resort to the sufficient security within his reach, and which, as he cannot assign it to the defendants, cannot otherwise avail them ?</p> <p>One word as to the case of Hamilton vs. Eaton, decided in the Circuit Court of North Carolina. It seems to have no material feature of resemblance to this. There the British creditor was not a resident of the state that passed the act of confiscation, nor was he subject to its laws, nor had any fund been provided for the payment of his debt. That act was a species of national hostility, which they thought fit, afterwards, and before the institution of that suit, to recall. So far as that act compelled the deposit of the amount of debts due to British subjects into the treasury of the state, it could be viewed only as an act of oppression to their own citizens, not releasing them from their moral obligation to their creditors. It may well, therefore, be said, that the impediment thereby created to the recovery of the debt, was a local and a temporary one, removed by the acknowledgement of the treaty of peace.</p>

Duplessis, Marshal of the United States for the Louisiana District, being ordered to remove aliens enemies, to a certain distance, in the inland parts of the State, arrested Laverty, a native of Ireland, (the United States being at war, with the king of the United kingdoms of Great-Britain and Ireland) who claimed the citizenship of the United States, under the decision of the late Superior Court of the Territory of Orleans, in Desbois' case, 2 Martin 185, and was…

The defendant having chartered the plaintiff’s vessel for a voyage from New-Orleans to Charleston and back with a return cargo, engaged to pay him two thousand dollars for the voyage. After the cargo was mostly on board an attachment was levied on it, and the voyage broken. The plaintiff brought his action claiming the two thousand dollars. This was an entire contract.

The plaintiff stated herself to be a widow, and the mother of Alexandrine Le Breton, deceased, and as such, her forced heir, and. claiming her estate; that her said daughter, being only thirteen years of age, and having no domicil, but her mother’s, fled therefrom, with the defendant, to Natchez, in the Mississippi Territory, where they were mar-, ried, without the consent, and contrary to the will no marriage settlement took place and that, after a short stay, in Natchez,…

<p>A fraudulent mortgage void in the hands of assignees with notice.</p>

<p>No bail in actions for a libel, on plaintiff's affidavit.</p>

Meeker, a merchant in London, became a bankrupt, made an assignment of all his property and obtained his certificate. One of his ere-ditors in the city of New-Orleans, having discovered some property of his, levied an attachment on it. In the mean while, the bankrupt came over, and, during the pendency of the suit, made a cessio bonorum to the same persons for whose benefit the assignment in England had been made. moved that the proceedings be homologated.

<p>Depreciation of assignats-claim of interest—allowance of bad debts.</p>

<p>The usual, is the legal, interest.</p>

The action was brought to dispossess the appellant of a house and lot, on the Bayou road, rented of the appellee. No particular agreement, as it respects the term, for which the premises should be occupied, appeared in testimony, though the appellant produced the rough draught of a lease in the handwriting of the appel-lee, but signed by neither of the parties.

Philip Joubert, being in failing circumstances, the defendants, who had a claim against him, observing he was wasting his goods, made application to a judge, and obtained an order, in virtue of which his property was sequestered-In the mean while, he presented a petition for a meeting of his creditors, and obtained a stay of proceedings against him.

<p>He, who bespeaks work for another, is a good witness.</p>

<p>Proceedings staid by a third person.</p>

<p>A sale of property, by a person, who has ceded his goods, is not void, but voidable.</p>

Meuillon married the plaintiffs’ sister, in 1787 : five years-after she died, without issue, leaving her husband.

<p>The dissolution of the partnership by Woolsey cannot be said to be fraudulent, for it left the creditors in as safe a situation as they were during the continuation of the partnership.</p> <p>The mortgages taken by Woolsey, notwithstanding the insolvency of Phillips, cannot be said to be in fraud of the creditors of the firm, for the premises were equally liable to their claims after, as before, the execution of the mortgages— the mortgagor and mortgagee being both bound for the payment of them.</p> <p>Neither can the assignment to Parish be said to be fraudulent, while it is not even suggested that Woolsey is insolvent. Every man is presumed solvent until the contrary appears Woolsey’s solvency could easily be established, if it wore required. If it be admitted, there is not a shadow of doubt as to the fairness of the transaction between Woolsey and Parish. For, a solvent man may dispose of his property at pleasure.</p> <p>If the assignment be not fraudulent, it is immaterial to shew the authority of the agent. Parish has adopted his act; his acceptance of the mortgages has a retrospective effect. The ratification of the principle cures all the defects that may have existed as to the nature of the agent’s powers.</p>

The plaintiff who is Judge of a Parish Court, claimed the sum of one hundred dollars, for the tax, laid by the act of this territory, 1809, c. 7, stating that the defendant, as attorney to several persons, had lately brought one hundred suits in the plaintiff’s court.

This was an attachment for a contempt of this Court, by a libellous publication subscribed with the defendant’s name, and printed in the Courrier de la Louisiane, of which he was one of the editors. It was grossly and indecently abusive, and appeared to have been written for the purpose of making an improper impression on the public mind, in favor of a person against whom the Grand Jury had just found an indictment for a libel.

Process of attachment having issued against the defendant for a contempt of court by a libellous publication; he was brought m and gave bail to answer interrogatories. Circumstances of aggravation attending this case, the Court* required him to give security for his good behaviour during six months : and he gave it accordingly.

<p>Notwithstanding through the affidavit be sufficiently strong, no continuance will be granted if suspicious circumstances are not accounted for.</p> <p>The truth of a libel not admissible evidence.</p>

The defendant had been held to bail on the plaintiff’s affidavit that the account annexed to the petition was just and true, and that no part of it was paid, except as far as the defendant might have an account against him for goods furnished; a motion was now made for his discharge, on account of the insufficiency of the affidavit.

<p>Whether the Corporation of N. Orleans may lay a toll on boats at the Bayou bridge?</p>

The plaintiff, a branch pilot, brought his suit to contest the right, which the Master and Wardens of the port of New-Orleans claimed of collecting, exclusively from the branch pilots, the pilotage due to the latter. He obtained judgment, in the Court of the first District, and the defendants appealed. . . The case was submitted to the Court, without any argument of counsel.

<p>These two consolidated cases came up, from . the first District, on the following statement of _ tacts. ( ‘</p> <p>In the year 1805, the parties had some münication together, for the establishment of a sugar plantation, in partnership.</p> <p>St. Pe’ then owned a tract of land, on which one Roman had a mortgage, for about S 7,000. On the 21st. of December 1805, he bought, for the account of the intended partnership, by a private instrument, from F. Mayronne, a plantation, with all the necessary buildings, mill Sec, to make sugar, for S 35,000, payable in several instal-ments. ; and on the following day, the articles of partnership were executed. It was to begin in March following and continue for five years.</p> <p>St. Pe’ furnished to the partnership a number of working hands, who were valued at S 6,900, maktog his part-of the stock $ 21,900, including 8 15,000 for which his plantation was brought into the partnership.</p> <p>In April 1807, the private sale of the plantation was the object of a notarial one.</p> <p>On the 18th March 1807, St. Pé bought of John Gravier, a tract of land, on the partnership account, for 8 20,000. Altho’ the sale' purports to have been for ready money, yet part of the price was paid in notes, which were afterwards negotiated to Thomas Durnford, and J. B. Nico-Iet, deceased, by the vendor. v</p> <p>About the month of March 1808, Du-plantier presented to and obtained from St. Pé, the acceptance of an account of sundry advances by him made to the partnership.</p> <p>In 1807, Duplantier, purchased, for his own account, a tract of land near New-Orleans, from Mad. Delor, for 8 107,000. . On which he paid down 8 23,000 in drafts on France. In the same year, he purchased a number of negroes for 8 12,000 from P. Lanusse, whom he paid in cotton. '</p> <p>In 1811, the partnership having expired, Du-plantier presented his account of advances 'made for the, partnership, amounting to 8 105,715, and expressed, a desire, as he perhaps had done before, to purchase, the property of the partnership, and the parties being unable to settle their account, appointed arbitrators for that purpose.</p> <p>The arbitrators having appointed a time place to meet the parties, St. Pé’s counsel re•fused to attend.</p> <p>, In September 1811, St. Pé, who had till then lived on the plantation of the partnership, left it, and Duplantier took possession of it and conti- • . , , , p nued to occupy it, except the tract bought trom Gravier, the whole of which, was seized, and sold ( for 8 14,000 to the son of Duplantier ) to satisfy and pay to the vendor a balance of 8 3,160.</p> <p>The land, which St. Pé had brought into the partnership, was likéwise seized and sold, at the suit of his mortgagee (Roman) for 8 12,500.</p> <p>Duplantier now instituted a suit against St. Pé for 8 105,715, the amount of his advances and St. Pé, a cross suit, for 8 117,000, the value of the plantation, slaves and other property, Which, Jie contended, Duplantier had verbally agreed to purchase. . - " •</p> <p>The suits were consolidated, and referred to judiciary arbitrators'—before whom the parties admitted :</p> <p>That the crops of sugar, received by Duplan* tier, amounted to 8 29,7477 '</p> <p>And the melasses, sold by St. Pé, on account of the partnership, to 8 1,236. ⅝</p> <p>That there was still due the partnership a sum of S 10,268.</p> <p>That the advances, made by' St. Pé, for the ' partnership, amounted to 8 3,697, 17.</p> <p>That Duplantier, besides his other advances 1 ’ had paid expences of the partnership to the amount of ST000.</p> <p>Leaving, a balance due to Duplantier, by St. Pé of S 37,571, 63, including a private debt, from St. Pé to Duplantier, excluding some interest claimed by -Duplantier.</p> <p>' In addition to these facts, the Court was referred to those stated, in the report of the judicial arbitrators.</p> <p>The arbitrators made the following report. Two questions are submitted to our decision. 1. Is Duplantier entitled to any interest, upon the payment and .advances by him made, for the partnership, or St. Pé ? 2. Is he to be consi7 dered as having kept, on his account, the property of the partnership, at the time of its dissolution ? If so, at what price ? If otherwise, how is that property to be disposed of *?</p> <p>To enable us to decide these two questions, without which the accounts of the parties cannot be liquidated, James Pitot has been introduced by Duplantier. He declares that, during the partnership, he had the management of the affairs #of Duplantier, in the city, and frequently paid the drafts of both the parties, for the account of the partnership ; and in May and June 1810, Du-plantier borrowed money from Alain and Hop- . kins, to pay partnership debts—that -Duplantier’s affairs then did not permit him to make such ad-vanees, without taking money at interest—that the witness does not precisely know, what particular debts of the partnership were so paid—that St. Pé frequently requested the witness to borrow money For the partnership—that during the absence of Duplantier, on the application of St. Pé, the witness borrowed from Villechaise S 4,780, for which he gave his own note, which Was after-wards taken up with Duplantier’s money—that to his knowledge,' the payments thus made by Duplantier, were 'one of the great causes of the embarrassment, in which his private affairs have been involved.</p> <p>On his cross-examination, this witness declared that, posterior to the contract of partnership, Duplantier bought Mad. Delor’s plantation for S 107,000, paying down S 23,000—that about the same time, viz. in 1807, he made a speculation in negroes, for his own account, amounting to $ 12,000, and in 1811, in order to settle the affairs of the partnership and liquidate his own, he desired to take the partnership’s plantation on his own account.</p> <p>Duplantier gave also in evidence, the contract of partnership, to shew that a plantation had, before its date, been purchased for the joint account of the parties : and from the account, of the severa^ payments, made by him for the partner. ship, he shewed that the price of that plantation, viz. S 45,000, was paid by him.</p> <p>It was admitted that, in June 1811, Duplan-tier took possession of the whole property of the partnership, altho’ the said partnership was not then expired : and Mayronne deposed that St. Pé, who had the management of the affairs of the partnership, had left the plantation before Du. plantier took possession of it the house then. no one being in</p> <p>St. Pe’ recurred 1. to the account of Duplan. tier, from which it appears that at, or posterior to, the time of his borrowing money from Alain and Jlopkins, no important payment was made by him, for the partnership : 2. To the contract of partnership, which contains the following clause, “ The proceeds of the crops shall be employed in discharging the obligations, which we contrae, ted with Mayronne and others, for the account of the society, and in case they should not be sufficient, each of üs shall contribute with all his means, to effect such payments, ”</p> <p>He relied on another clause by which Duplan-tier “ obliges himself besides t6 advance ten working .slaves before the time of , the roulaison : of the price of whom Sf, Pé shall not be bound to pay his half, until after the lands purchased are paid for. ”■</p> <p>He likewise shewed another clause by which it is agreed that “ St. Pe shall remain intrusted with the direction of all the work .relative to the plantation, sugar house &c. and shall dispose of the guildive, saw mill, 8tc. as he shall judge most convenient for the partnership. ”</p> <p>He introduced also an account settled between the parties in 1808, of the advances made by Duplantier, leaving a balance in favor of the latter of S 50,808, 07; observing that no interest was charged. - -</p> <p>He then read, seven letters addressed to him by Duplantier, dated Baton-Rouge, the 22d. and ‘ 28th. of January, 2d. and 11th. of February, 15th of April and 25th of December 1806 and 25th of May 1810.</p> <p>In the first, Duplantier tells him “ I shall send to Zacharie a power to enable you to settle with Gravier, as soon as your health will permit. I wish it finished ? ”</p> <p>In the second—“ Do not lose sight of our neighbour Gravier : do not lose a single moment in purchasing the whole. Be persuaded it is a good bargain and we would not have more than we want. If misfortunes cease to persecute me, we shall soon put forces on it. We must work at our ease: and, with terms, we shall find nb dif-ficultv to pay. I intreat you to take care of yourself. It is a folly to kill one’s self in day. Things never /go so fast as our imaginations, or - as one should wish : so do not hurt yourself by your too great activity : your wife, children and society have need of you. As to myself, I am not longer fit for any thing but advice : since you are to take all the trouble, you must take it in such a manner as to be able to support it. ”</p> <p>1st the third—“I have twenty brut negroes and two families to send to you. If you can-dissolve with Descomines, I think we shall be' able with the reinforcement I have at Mobile, to make our mills-and other works go. ”</p> <p>In the fourth—“ I was going to speak to you about Gravier.. I am glad that you have done •with him. Do not lose time before you make him pass the deed of sale : and in case that should be delayed a little, let him give a private one. I ShaU take measures to let him have the cash, on my arrival into town. I should be sorry, if you did- not make that purchase. ”</p> <p>In the fifth—“ I should be happy to see you and wish you could conclude with Gravier, if, at last he is ready.</p> <p>In the sixth—“ Do not lose sight of the bargain of Gravier, with little Durnford. See what is the true amount of the mortgage, given to him by Gravier : propose to him our note for it—if he does not accept, you must take means to have it extinguished, and procuring the same. Consult Mr. l)erhigny and Zacharie : is absolutely necessary to conclude that bargain.”</p> <p>In the seventh—“ I have learned with regret, that you have not been able to come to any settlement with Pa vie or the nephew of Ni- » - r colet.' I do not know what we shall do : as to myself I have no resource left me. I cannot procure money to pay, my private debts. ”</p> <p>St. Pe’ next introduced the depositions ’of Morier Fazende and Descomines, shewing that since the roulaison of 1810, Duplantier took and kept the possession and management of the partnership plantation. Morier Fazende states that he is well acquainted with the plantation, slaves, &c. and that the whole is worth 8 140,000, -cash.</p> <p>That of Boutté, stating that Duplantier told him that he kept the partnership plantation, on his own account.</p> <p>- That of Harang, stating that about March or April 1811, he was requested by St. Pé to make an appraisement of the partnership property, jointly with a person Duplantier should appoint. That, in consequence, he went on the plantation, examined the whole of it; as well as the greater part of the slaves—that shortly after he went with Mayronne, appointed to make the appraisement, on the part of Duplantier : but being on the spot, and unable to agree, Duplantier told them it was useless to take any more trouble, or to endeavour aSree* because, if the appraisement exceeded the sum he intended to give for the property, he would not take it. The witness valued the property then, at g 128,000, including interest, at one and two years credit, the terms he be- ' lieved agreed upon, by the parties.</p> <p>A notarial instrument, executed by the parties, on the 8th. of June, relating to the disposal of the partnership property was also offered, on the part of St. Pé, accompanied with oral testimony of Duplantier’s refusal to abide by it, and of a new verbal agreement having then taken place. The counsel for Duplantier opposing this evidence as contrary to law and practice, we, the arbitrators were of opinion that St. Pé could not be allowed to prove by witnesses, what had been said by the parties, priór to, or after the said agreement— that he must, if he produce it, let it go for what it contains. Wherefore the evidence was withdrawn. ,</p> <p>Thereupon-, Livaudais, Lanüsse and Tricoti were sworn as witnesses for St. Pé.</p> <p>Livaudais deposed that some day, about June 1811, being fixed for the disposal of the partnership property, he went on the premises, but-Duplantier produced no negroes or cattle; that the witness with Fortin, Pitot and Laronde, en-deavoured to bring the parties to a final settle* mint : and, as far as he believes it was "that Duplantier should take the whole property'. for S L05 or 108,000; but no appraisement was made.</p> <p>L a N u s s e deposed that about oné year ágo, he was commissioned by Tricou to propose tó Duplantier S 110,000 for the plantation and slaves : payable É 25,000 in March then following, and the rest in five annual instalments—^that Dil* plantier answered he wanted first to settle With $t. Pé; that the proposed terms, if accepted, could not relieve him, as the delay* he had obtained from his creditors would expire iri December théA folio wing.</p> <p>Tricou deposed he had made thé abové offer; that St. Pé had consented, but the bargain failed; ' because, out of 35 negroes which he wanted td buy, Duplantier insisted on keeping five of thd most valuable, such as the commander &c., substituting others of inferior value.</p> <p>Du p i. a n tier’s counsel contended he Was eh* titled to interest, .akho’ there was no special agree*' ment: for having been obliged to borrow money for the discharge of the partnership debts,* it would be unjust to deprive him of the interest,' Which hé Claimed át the rate of 10per cent, having paid that,* ánd a higher rate to money fenders. That in i ease like this, no positive contract Was necessary;, because the partnership having béeh benefited by the-advances he had made, it was natural he ... should be indemnified by his partner.</p> <p>' As to the question, whether Duplantier should considered, as having taken the whole property on his own account, the counsel observed there was no evidence of any contract of that kind. Such a coijtract would be a contract of sale— there cannot be a contract of sale, without a price fixed upon.</p> <p>St. Pe’s counsel answered that interest can only be claimed, where there is a positive agreement, or where, from the acts of the parties it is evident that it was the intention of the parties it should be paid. Here it appears, from the accounts between the parties, that interest was never thought of.</p> <p>As to the other question, they contended that Duplantier was in possession as owner not as administrator of the property : and must at all events be considered as such, since the proposition of Tricou.</p> <p>They introduced by consent of, or at least without oppositionfrom, the counsel ofDuplantier, a notarial instrument, executed by the parties, ( ion the 8th. of June 1811, whereby it was agreed that Duplantier should keep the plantation, slaves, cattle, &c. of the partnership, for the sum of ⅞ 108,000. and should cede to St. Pé. ten arpents in front at the rate of , one thousand dollars the ar-pent, and eight of the slaves brought by St. Pé, into the partnership, and three of those brought by Duplantier, for the price at which they had been'charged to the partnership : the accounts of the parties shall be settled as soon as possible, and if St. Pé falls in arrear, he shall pay Duplan-tier, in the above lands and slaves, or in cash—-if Duplantier falls in arrear, he shall pay in his nqtes at one and two years, with the same interest, which St. Pé is paying.</p> <p>I. On this, we, the arbitrators are of opinion that there exists no particle of evidence that, it was t]ie intention of the parties, that interest should be paid. On the contrary, the articles ofpartnership and the account of advances, settled in 1808, shew that Duplantier had no such pretentions. We, therefore, think he is not entitled to any interest, on the sums by him paid, for the partnership, nor on those advanced to St. Pé.,</p> <p>II. We think that the instrument of the 8th. of June 1811, is binding on the parties, and that nothing said or done by them," since its date, could alter it; unless it was rescinded and the rescisión reduced to writing.</p> <p>We are of opinion that from the date of said instrument, Düplantier wrongfully detained the P088e88H>n'<)!f ⅛ -fend ceded to St. Pé, and of the three slaves, who were once his own.</p> <p>The agreement most have its complete execution. Duplantier cannot enjoy the profits of the property, and enrjch himself, at the expence of his former partner. Jure naturali equum est, neminem cum alterius detrimento locupletiorem fieri. He ought, therefore, to allow interest, at five per cent., on the value of the land and of the three slaves from the above date.</p> <p>We also think that the credit which Duplan-tier is to have on his notes, of one and two.years, to pay tlie balance due from him, ought to run from the date of the agreement. Had he not claimed interest, the accounts could have been settled without much difficulty. It is he, therefore, who-has delayed the settlement and St- Pé ought not to suffer thereby.</p> <p>Dope an tier owes to the partnership the price of the plantation and slaves 8 108,000, from which-the amount of his advances 8 59,110, 41, being deducted, he remains debtor of S 48,889, 59, to the partnership.</p> <p>: One half of this sum, Jg *24,444, 79, he owes to St,, Pé, on whom he has a private claim of 8 6,043, 65, leaving the balance due by him to that gentleman 8 18,401, 14.</p> <p>St. Pe’ is to receive the ten arpents of land for 8 10,000, the eleven negroes for 8 7,195, ieav-ing a balance of g 1,206, 14,</p> <p>C ⅛ x. c itl a t i n g the mterpst, at S per, cent. thereon and on the value of the plantation,, and of the three slaves that were Duplantier’s formerly:</p> <p>We adjudge that Duplantier shall; deliver tp Pé, the ten acres of land and three slavey : ' aforesaid, and St. Pé shall retain the eight slaves by him formerly put into partnership, and Pur plantier shall pay him 8 2,204, 33 viz. 8 1,540, 95 in cash and 8 663 37, in his note payable oa the 8th. of June 1814.</p> <p>The District Court, on this report made ihf following decree.</p> <p>The arbitrators were correct, in admitting as evi, dence the contract between the parties of the 8thl of June 1811. It is not a project, but an abso* lute contract, and vests an unqualified right, in the parties, to the property reciprocally conveyed; leaving all other matters in difference subject to after liquidation. It properly forms the basis of their award.</p> <p>By the contract, it is stipulated that, if on a lir quidation of the accounts, it turns out that St, Pé is in arrear to Duplantier, he shall pay in th£ lands and negroes ceded him, or in cash. But if Duplantier should be indebted, he shall give his notes payable in one and two years, with thp same interest, which. St. Pé himself pays. But whether any, and what interest St. Pé pays,⅛ not . shewn : it being conventional. -</p> <p>..¶⅛⅛ arbitrators have erred ¡hallowing interest' ” from the date of the contract of the 8th of June 1811. for by this contract, if Duplantier should be found indebted to St. Pé, upon a liquidation of the accounts, he was to give his notes, at one and two years, with .the interest which St. Pé pays. This evidently relates to the time of liquidating the accounts, and not to the date of the contract. If Duplantier (as the arbitrators alledge) has prevented an amicable adjustment of the accounts, it was in the power of St. Pé, to compel a.liquidation, by resorting, as he has done toa Court of justice, and he ought to recover interest, only from the time of the judicial demand, and on the amount, which may be finally liquidated and adjusted by,the Court..</p> <p>The arbitrators also erred in allowing interest on the price of the tep acres of land, and the ne-groes mentioned, in their award : because by the contract St. Pé had a right to enter upon the land and take possession of the negroes, ceded to him by the contract; at least until the liquidation of their accounts : and then, in case he should be debtor, he had an option to pay in land, negroes or money. . If Duplantier wrongfully kept him oiit’ of possession, his remedy was an action'for damages, equivalent to the injury sustained.</p> <p>The i;ate of.interest assumed cannot be the proper measure of damages for the wrongful detention of the property. The arbitrators have gone out of the submission in making this allowance.</p> <p>This being disallowed there remains a balance in favour of St. Pé of S 1,206, 14, to be paid in two annual instalments, with interest to run .... ... ' from the judicial demand, which is adjudged and decreed to him with costs.</p> <p>From this decree Duplantier appealed.</p> <p>We have proved that we have frequently taken money, at interest, to pay the debts of the partnership, and that our situation did not allow us to make advances otherwise. We have paid for the greater; part of the land, composing the joint stock of the partnership.; we have put on it a much larger number of slaves, than we were bound to do. These lands and ne-groes have all produced great advantage to the partnership. Without them, no crop could be made. With what money have-those lands1 and negroes bfeen paid for ? With that very money, which we have borrowed at very high interest. The enormous payments we have been obliged to make for the partnership, have been the cause of the embarrassment in our private affairs—It has compelled us to stop our paj>ments, and to ask a respite from our creditors. How, in justice or equity, can the defendant refuse to indemnity for sacrifices, the advantage of which he jias reaped?</p> <p>WÉ eanñot be considered; ás having kept the property of the partnership on our account. Our articles of partnership provide that, at its dissolution, án appraisement of the partnership property ori hand shall be made, and any of the parties shall be at liberty to take it as thé appraised value. Has suc^ an appraisement been made ? It is in vain that it is alledged that since June 1811, we have been in possession of the joint property and that We have agreed to keep it, ‘for a certain price. That price was never fixed, or agreed upon between us : then there was no sale of the defendant’s share. We are in possession of the joint property, not as owner, but as administrator of it.</p> <p>It is true, under the articles of partnership, the defendant was to administer the common stock. But he had left the plantation and it was both olir interest and duty to take care of it : and the defendant might, át any time, if he had seen fit, resume the possession of it. .</p> <p>It is true, we declined the offer of Tricou. His terms of payment did not suit us. The credit he required was too long. Will it be sáid that we are, on that account, bound to keep the property he offered to purchase, on the same terms. No : we had a right to have it sold for Cash.</p> <p>No interest caft be allowed by'the appellee. We see him putting into the partnership all the property he possesses. lie is an industrious planter : his partner a rich one, good only, as he says himself, for advice. He is to be charged and he' charges himself with all the trouble, and management of a sugar plantation, a saw mill and a guildive, where his partner resides, and is to reside, at the distance of forty leagues.</p> <p>It is stipulated by the parties, that the proceeds of the crops shall be employed in discharging the debts they have contracted with May-ronne and others, and in case they should not be sufficient, each is to contribute with all his means to effect the payments.</p> <p>Wh a t is the meaning of this last clause ? That the appellee shall pay part of their debts, ip any other manner, than by the exercise of his industry ? Surely not : he had put every thing .he possessed into the partnership. Altho’ the ap-pelant has used all his means, in the discharge of the above debts, he cannot claim any interest : because he has done no more than to perform one of the conditions, on which the partnership was formed.</p> <p>What are the principal advances of the appellant ? The price of Gravier and Mayronne’s lands and of the negroes he has sent to the plantation. Did he not urge the purchase from Gravier ? Did he not, for several months and in several letters solicit to conclude that purchase ? Did he not, *n a Cei^a'1!7 degree, compel St. Pé to it ? Did he tell him, at the time, that if he should be obliged to pay the price, he would charge him with the interest'? Had he manifested any intention of this kind, the appellee, who had already exhausted his resources, would never have consented to, wquj(j never have made the bargain.</p> <p>As to the negroes, sent by the appellant to the plantation, above the number he was bound to furnish, the appellee was never consulted : and until the accounts were exhibited nothing shews that they had become the property of the partnership.</p> <p>Can the appellant demand any interest on the value of these slaves ? Was it in his power thus to effect the total ruin of his partner ? Both these questions must, or none of then can, be answered inthe affirmative. ^</p> <p>But he is not satisfied with claiming interest on the value of the slaves sent, above the number he was bound to supply : he charges it also on that of the latter, altho’ the appellee had time to pay his half of their value, until the lands which had been bought were paid for.</p> <p>The money, borrowed from Alain and Hopkins does not appear to have been employed for the use of the partnership.</p> <p>It is contended the appellant ought to be allowed interest, because his advances have deranged his affairs. Let us on this examine Pitot’s depoSition.</p> <p>Duplantier was shortly after the partnership began to furnish 1. S 15,000 in cash 2. twenty negroes, 3; all his means to discharge the debts, contracted for the purchase of the lands of Gravier and Mayronne. . He makes two very large purchases, on his own account : one of ⅞ 107,000, the other of S 15,000. On the first, he paid down g 23,000. Those occasioned his difficulties, his embarrassment.</p> <p>An account was settled and signed by the parties, and altho’ the appellant’s advance amount to upwards of g 50,000, nothing is said about interest. On the items of this account, surely none can be claimed.</p> <p>As- to the other sums due to the appellant, is there any posterior agreement that ever autho-rised him to demand interest. If he altered his mind, after the settlement, and intended to make a charge for interest, ought it not to have apprized his partner of it ?</p> <p>The appellant is in possession of the partnership plantation, as owner, not as administrator— - at least, since the proposition made by Tricou. He informed Boutté he had taken the plantation, on his own account. He afterwards agreed to take it at g 105 or 108,000. Previous to, and ever since that time he has been in constant and exclusive possession.</p> <p>It is said he cannot have acquired the property of the appellee’s share, without a contract of sale : and this contract cannot exist without a fixed price.</p> <p>dissolution of a partnership the first thing, which is to be done is the division of the joint property, if possible : but may not one of the partners take any specific object, by abandoning another, or paying the value in cash or debts, and will he not then be in by partition.</p> <p>AdmittiNg that this was a contract of sale, which could not be completed, until the price was fixed : we have seen, any of the partners could take the whole common property, at an estimated price. Now can the deposition of Boutté leave any doubt that the appellant had availed himself of this faculty ? And in the contract of sale does it not suffice that the price should be susceptible of being reduced to a certainty ? Id certum est, quod cerium reddi potest.</p> <p>Admitting that he is not bound to keep the property at the price at which it shall be valued, can he dispense himself from indemnifying us from the injury sustained by his preventing the acceptance of the favorable terms offered by Tricon ? He says the terms of payment were too distant: but Tricou deposes that the bargain did not fail on that account, but because the appellant wanted to retain five of the most valuable slaves • for himself.</p> <p>Interest is at all events due On the monies paid to Gravier and Mayronne. The sums due to these gentlemen were the prices of two tracts of land respectively purchased from them : the nature of these debts, the things sold producing fruits, rendered interest exigible, from the day of the sale, till that of perfect payment. The appellant having satisfied the vendors, has been 'ipso facto subrogated to the rights of the creditors. What he has to claim from the appellee is still in his hands the price of his debtor’s part of the land, a debt which, ex natura rci and without any stipulation, carries interest. The appellant, being subrogated to the rights of the vendors, must exercise these rights entire; as they could claim interest, so can he. See Domat on thi§ subject.</p> <p>Finally, the respective rights and preten-tions of the parties were submitted to referees, who after hearing the parties have reported that interest is due to Du planner. . Referees are special Judges, appointed under an act of the Legislature, to settle long, intricate accounts, as were those of the parties to this suit ; when, therefore, they have pronounced, the accounts must be considered as settled, unless some gross misconduct °n Part' sh°u'd induce the Court to set their report aside, and refer the accounts to others. The Court, therefore, erred in disallowing the interest.</p>

<p>If a fact be discovered which would have prevented the admission of an attorney, he may be stricken off the roll.</p>

<p>Whether a sale under an order of seizure is to be as under a fi fa?</p>

The petition stated, that the plaintiff was the owner of a negro girl, who leit his plantation, in the state of Maryland, without his consent knowledge, and came to the city of New-Orleans, where she lived with the defendant, who was about to remove her to the province of West Florida. On the affidavit of one Hubbard, to these facts, a writ of sequestration issued, and she was thereupon apprehended.

Dormenon, whilst Judge, and as such ex officio Sheriff, of the Parish of Pointe Coupée, conceiving himself insulted by Detournion, while he was engaged in selling, at auction, property which he had seized, upon an execution issued by himself, issued an attachment, and fined and imprisoned him for the contempt. Detournion having paid the fine and the costs of the prosecution, brought the present action to recover the moneys thus paid, with damages for the imprisonment.

<p>The Grand Jury had found an Indictment against the defendant for an assault with intent to murder, which is a capital offence.</p> <p>,. ,.. , ,. , , Derbigny moved to have him bailed.</p>

<p>A parish judge cannot appear in a suit brought up by consent.</p>

The defendant prayed a continuance on an affidavit stating a certain fact which he expected to prove by the absent witness. I will admit, at the trial, the fact to have been sworn to by the witness. If the counsel for the plaintiff will admit the existence of the fact, we have no objection to proceed to trial.

The defendant was found guilty, under the act of 1805, chap. 50, sect. 15, of aiding and assisting in the false making and counterfeiting a banknote of the bank of the U. States, the punishment of which is imprisonment for life at hard labour, The judgment ought to be arrested.

<p>Motion for a new trial, on the ground of new evidence discovered since the trial.</p> <p>The affidavit is insufficient, for it does not state the name of the witness, nor the nature of the evidence. This court requires it before they will grant a commission to take depositions.</p> <p>The act of 1805, chap. 26, sec. 6, provides, that a new trial shall be granted “ whenever new evidence material to the cause “ shall have been discovered after trial, which "the party by reasonable diligence could not “ have discovered before.” The affidavit has brought the case within the very words of the law. It is all that can be required.</p>

<p>If a redhibitory defect be mala fide excluded the vendor remains liable.</p>

<p>Montesano is within the territory of Orleans.</p>

The petitioner stated that John A. Smith, the defendant, had proven, and obtained letters testa-r . mentary on, an instrument purporting to be the last will of her deceased husband : whereupon, al-ledging the said instrument to be no will, being destitute of the formalities required by latvy she prayed, that it might be set aside, and declared mill and void.

On application to one of the judges, at his chambers, an order was obtained for a meeting of this man’s creditors, and for a stay of all proceedings against him.

<p>Whether an insolvent debtor can give preference to one creditor to the exclusion of the rest?</p>

<p>Provisions furnished for vessels create a privilege, which is not destroyed by her sailing.</p>

The petition stated that the plaintiffs’insolvent was seized of a lot of nine acres of land, on the cana^ Carondelet, in the occupation of the defen» that the defendant refuses to pay any rent, or surrender the lot, to the plaintiffs—the defendant pleaded the general issue, and there was judgment for him. The plaintiffs appealed.

<p>Ante p. 117.</p> <p>The offence must be expressly stated to have been committed within the jurisdiction of the court.</p>

<p>No *ppea* lies from an orst^-der, for the removal of h</p>

The original petition stated in substance, that the defendant, formerly of Philadelphia, but now of New-Orleans, being before that time indebted to the plaintiff £4000 Pennsylvania currency, the plaintiff, on the day of 1808, recovered a judgment for the said sum in the court of Common Pleas of Philadelphia, which judgment is unsatisfied and unreversed—and that the said sum is now due—Wherefore, &c.—and concluded with a prayer for general relief.

<p>The counsel, on each side, declined any ~ further argument.</p>

<p>The plaintiff a woman of colour, claimed her freedom.</p> <p>The plaintiff must prove that she was born free, or has been emancipated.</p> <p>Even if the defendant could prove his possession of the plaintiff as his slave, still the Spanish law would require him to produce some written title, or at least that he acquired possession of her without fraud. Partida 3 tit. 14, l. 5.</p>

The Plaintiff stated he was in possession a lot of ground in the faubourg St. Mary, whereupon he had built a house and defendants sent the formats or galley, slaves, who pulled down and destroyed the house and drove off the plaintiff from the premises. The defendants admitted the demolition of the house by their order, but justified it on the ground, that it was a new house, and was built in one of the streets of the said faubourg.

<p>Plaintiffs dence.nVe!IL vnw, tesas nui-</p>

An action having: been brought on several notes of hand originally payable to Jno. Wood & Co. executed by Lewis in Baltimore.

Pending the suit, the defendant made a cessio bonorum, and the plaintiff proceeded to judgment. The judgment is irregular and ought to be set aside. When debtor cedes his goods to his creditors, the Judge who orders a meeting of the creditors, directs a stay of proceedings. It is therefore irregular to go on to judgment in suits against him. Farther, the cession operates the civil death of the debtor. He cannot consequently remain a party in a suit.

The plaintiff claimed payment of certain lots sold by him to the defendant. The defendant resisted the demand, on two grounds. 1. That at, and prior to, the execution °f sale, a mortgage existed on the lots, as forming part of the fauxbourg St Mary, in favor of Madam Delor, of which he had no notice or knowledge, and which remained still unextin-guished. 2.

<p>Attachment on oath of a third person, when bad.</p>

This was an action to recover damages for a stated embezzlement of sundry goods taken out of several boxes, shipped for the plaintiff's account. Plex, the general issue. The evidence was that after the arrival of the ship, the boxes were landed on the Jevee and carted to the plaintiff’s warehouse. Afterwards some customers attending, one of the boxes was opened to shew them the contents, and a deficiency was discovered.

<p>produced the defendant's power of attorney, and moved that the, court might, on proof of the execution of it, order judgment to be entered.</p>

<p>Dccisory oath cannot be tedered in this teritory.</p>

<p>Mother’s right to the guardianship.</p>

<p>Statement of facts must be made, before •|“^rgnient</p>

<p>Witness cross examined on a new point.</p>

<p>Answer to interrogatories extended to a fact,avoiding the debt.</p>

The plaintiff having obtained leave to amend his petition, and having done so, since the last term, and the defendant having filed no new answer, the cause was set down for trial- It was improperly set down for trial, for the parties were not at issue. The plaintiff for want of an answer, might have taken judgment.

<p>Syndics of can only Vbe-by paying the debts.</p>

<p>Indictment for forgery. Bellechasse, whose signature, as the first endorser of a note, was charged to have been forged, was offered as a witness on the part of the territory. He was asked whether he had a release from the subsequent endorser, and answered in the negative.</p> <p>He cannot be sworn. It is provided by the 33d section of the act of 1805, chap. 50, that the rules of evidence in criminal cases, shall be according to the common law.</p> <p>A person whose property may be affected by a forgery, is no evidence to prove it upon an indictment. 2. Hawkins's P. C. 611.</p> <p>When a man is indicted for forgery, the party, whose hand is said to be forged, shall not be admitted to prove the fact. For his hand apparently against him is evidence (until the contrary be proved) of an obligation; and, therefore, he shall not be permitted in the indictments, to make proof, while he has an interest in the question (the supposed obligation standing in apparent force against him) that it was not his hand. Loft's Gilbert 222, Puller's N. P. 288. 1. Mc Nally 141.</p> <p>The authorities which support this principle are numerous. The British precedents are also supported by American decisions.</p> <p>In the case of the King vs. Russel, the court held that Lately, the person whose name was stated to be forged, was an incompetent witness to prove that fact. 1 Leach C. C. 10. In that of the King vs. Taylor, it was determined that the drawer of a bill was not a competent witness to prove that a receipt, endorsed for the value of it, was a forgery, id. 225. In the case of the King vs. Boston, Lord Ellenborough said : a prosecutor shall not be allowed to say that a bond purporting to be made by him, was forged. 4 East, 582.</p> <p>The exceptions, which occur in the books, prove the correctness of the principle. Dr. Dodd, having forged a bond, in the name of Lord Chesterfield, that nobleman was allowed to prove the forgery, a release having been executed, by the apparent obligees. 1 Leach C. C. 185. In the case of the King vs. Akehurst, the supposed drawer of a note, holding a release from the payor, was admitted as a witness, id. 178.</p> <p>The courts of the states of New-York, Vermont and Connecticut, haved acted upon this principle.</p> <p>C. J. Kent, in the case of the People vs. Howell, expressed himself thus : the ancient rule in England that a witness, whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in this court ; and it was adopted in 1794. The grounds and reasons of that decision are not before the public, and We, therefore, do not known them. It is probable? that the court assumed the English principle, as they found it then existing : but since that time, the question of interest in a witness, has been investigated and defined with more precision, both in England and in this state. The rule now in ail such cases, and I believe, I may say in all criminal eases, except in the case of a forged instrument, is that a witness is to be received, if he be not interested, in the event of the suit, so that the verdict could be given in evidence, in an action to which he was a party. 4 Johnson 302.</p> <p>In the case of the State vs. Bimson, the supreme court of the state of Connecticut held, that the person, whose name was forged, could not be allowed to prove the forgery. I Root 307. The same decision was made by the same court, in that of the State vs. Blodget. id. 354.</p> <p>And in the state of Vermont, in the case of the State vs. A. W. 1 Tyler. 261.</p> <p>In ascertaining what was the principle of the common law, we are not give implicit faith to the crude and undigested ideas of the first law writers, but avail ourselves of the learning, and industry of modern ones, and this court is to declare the law, in the same manner as a British court’of justice would at this day, unshackled and unbiassed by any statutory provision, or any decision grounded on a statute.</p> <p>All the decisions which have just now been quoted, are since the statute of 5 Elizabeth. This statute has wrought a considerable difference in the admission of testimony, in cases of forgery, and an examination of the authorities, relied upon by the defendant, will show, that we have not sufficient materials to enable us to discover, that the difference which now exists, in the courts of England, in cases of forgery, is bottomed on the principles of the common law.</p> <p>This writer does not speak decisively, in the part of his work which is quoted. His expressions are, I take it to be generally agreed We, and he concludes, by informing us that the rules of evidence concerning this matter seem not to be clearly settled. 2 Hawkins 611. and Lord Ellenborough, in the case cited, recognising the position, as established too firmly to allow any deviation from it, without the authority of parliament, owns his inability to discover upon what principles the anomalous exception from the general rule, in eases of forgery, is grounded. 4 East, 582.</p> <p>The principle, that a person whose property may be affected, shall not be admitted to prove the Let from which the injury arises, upon an indictment, is far from being universal : and the books are full pf cases in which a person, to whose damage, an indictment concludes, has been allowed and admitted an evidence, and his credit left to the jury.</p> <p>In Parris's case, an information being brought against him, for that he, fraudulenter & deceptive, procured one Ann Wigmore, to give a warrant to confess judgment, and she being brought forward to prove the cheat, it was debated whether she might be admitted 5 for if he was convicted, the court would set the judgment aside : nevertheless she was sworn. 1 Ventris, 49.</p> <p>A person beaten, and generally any other person to whose damage a criminal information concludes, is a good evidence to prove the battery or other misdemeanor, notwithstanding he may have an action. 2. Hawk. 611.</p> <p>Lord Holt, in Regina vs. Macartney & al. admitted a person who had been cheated to prove the fact on the indictment. 1 Salkeld, 2 6. 6 Mod. 391. 2 Ld. Ray. 1179,</p> <p>If a woman give a bond or note to a man to procure her the love of J. I. by some spell or charm, in an indictment for the cheat, tho’ it tend to avoid the note, yet she shall be a witness. Per Holt. C. J. Regina vs. Sewell, 7 Mod. 119.</p> <p>The proprietor of a note was admitted to prove the tearing of it by the maker, on an indictment. King vs. Moyse, 1 Strange, 595.</p> <p>Sir William Lee allowed a party, supposed to be defrauded to be witness on an indicment for perjury. 2 Strange, 229. Rex vs. Broughton.</p> <p>In Abrahams gui tam vs. Bunn, Lord Mansfield held that the borrower oi money, was competent witness to prove both the usurious contract and the payment of the money. 4 Burr, 2251.</p> <p>Having established that the. admission of Bellechasse is not contrary to the general principle ; it remains to shew that the particular exception, which is said to prevail in Great Britain in cases of forgery, is not absolutely recognised in the American courts.</p> <p>In the case of Hutchinson, the Superior Court of the state of Massachusetts said, that although they believed it to be now settled in England that the person, whose name is said to be forged, is not a competent witness to prove the forgery, yet the practice had been for a long time, otherwise, in that state. Mass. 11. 8.</p> <p>In the case of one Keating, tried in Pennsylvania, Meng, the person whose hand was stated to be forged to a note, was admitted to prove the forgery. C. J. M'Kean, citing several cases in which it had been thus determined. 1 Dallas, 110.</p> <p>In Ross’s case, in the same court, Heister, the apparent maker of the note stated to be forged, Was allowed to prove the forgery. The Chief Justice saying : I admit that early in life I entertained a different opinion on this point : conceiving then, that the weight of adjudged cases was adverse to the competency of the witness, tho’I thought it hard that the law should be so. My opinion has been changed by the modern authorities, which give an evident preponderance to the opposite scale. In general, the judges of late have been inclined to a more liberal admission of testimony, applying exceptions rather to the credit than to the competency of witnesses,-Every principle of policy must enforce the necessity of allowing the person whose name is said to be forged to give evidence of the fact, 2 Dallas, 240.</p>

<p>sheriff seiz-which ^“srda</p>

<p>lithe appeal by consent, pro to be had, as had beenPtak-cm</p>

<p>Exception en to the</p>

<p>Appeal dismissed, ajid statement of facts, &c come up.</p>

The defendant, being charged with murder, was brought before one of the judges of this court at his chambers, who thinking the presumption of his guilt but slight, was willing to bail him. It being late in the night, the defendant found it impossible to procure bail and was committed. At the opening of the court on the next day, the grand jury brought in a bill of indictment, charging the defendant with murder. He prayed to be admited to bail.

<p>rise'ltyof¾ the Portcullis of bridge, illegal,</p>

The defendants were the maker and endorser of a note pf hand, and the plaintiff the last endorser. A joint suit was improperly brought, the defendants’ obligations are several, and arose at different periods ; that of the maker is absolute, and that of the endorser, conditional. The remedy must be of the same nature as the cause of action. The one cannot be joint, when the other is several, That is the rule of the common law of England.

<p>Seven judicial days allowed new trial.</p>

<p>Judgment against the holder of sequested property, not cited, set a side.</p>

<p>The caption is not a part of the indictment for murder.</p> <p>The words viet aratis, not necessary in an indictment for murder.</p>

<p>c acc™* in,tor.ma: tion derived from facts stat-édintheopiu-¡on 0f t¡ie Judse></p>

<p>of so7nPa0pla<^n ct payemcnt. Delivery on-Ir in q conti'Qct</p>

The plaintiffs, shortly before the bankrupt’s failure, had sold him six of wine, for which had taken his note. On his making a cessio and obtaining a stay of proceedings, the plaintiffs applied for a writ of sequestration against the wine, which was executed on five of the six pipes.

<p>Appeal from talning ’an junction.</p>

<p>Debtor raa-, cession, must Cdeliver and\lannot°^iy pay his. debts,</p>

<p>Gayoso’s line, pear New Orleans recognised.</p>

<p>An invoice accompanying the the goods, is no evidence against the master of the ship.</p>

This is an action brought on a mortgage/made in favour of the plaintiff, as vendor, by the defendant, as vendee, the security of the parchase money, of six lots of ground, of which the defendant has been *n Possession since the sale. ' The purchase money, as secured in the sale 1 J1 ■ and mortgage, with interest on each instalment as it became due, is claimed by the plaintiff and the payment resisted by the defendant, principally, because of an incumbrance, made on the lots…

<p>Ante 160.</p> <p>Transfer of property, in fraud of the insolvent’s creditors, void.</p>

Condictio indebiti. The plaintiffs were keepers of grog-shops, and for several years past, had paid the sum of one hundred dollars each, into the treasury of the city, for a license to retail liquors by the small measure, keep a billiard table and a boarding-house or tavern.

<p>Suitmaintain.-executors, UIi°-</p> <p>Instrument, annexed Sc made part of hereference°may</p> <p>vendMdi-rects the price third ' person, on default, he may sue without making this per-A</p> <p>Purchaser* ⅛ danger of eviction, may withhold pay* ment.</p>

<p>Counsel, a client*8 fol Ae</p> <p>an "^Instrument being proved, oral testimony of its contents,</p> <p>nor cannot be°°adi getíte estate1""</p>

<p>Prior endorser, cannot be called to de-</p> <p>actual demand was made, on the maker, if due diligence has ben used, ^™'sers are</p>

<p>Judgment being had in the parish court, against the defendant, who was absolutely disabled to attend to his suit, by a violent sickness, in-the paroxysms of which he was frequently delirious ; after the time during which an appeal could be successfully prayed, so as to prevent the execution issuing, he moved for a certiorari to bring up the record of the suit, and a supersedeas to the sheriff: upon affidavit of merits, stating the deranged situation of the affairs of the plaintiff, which rendered it doubtful that, in case of success, the defendant might obtain his money backy if he paid it to the sheriff. The defendant further offered to pay the amount of the judgment in the clerk’s office, on the court making an order that it might remain there, till the appeal was determined. The defendant had no counsel in the parish court, being himself an attorney.</p>

<p>This suit having been submitted to referees, under the acts of assembly of 1804, c. 2. s. 2. and 1805. c. 26. s. 20. They made a report, stating the accounts of the parties, referring the determination of the question that arose upon them, to the court.</p> <p>Mazureau, moving that the account might be recommitted. The referees ought to have finally passed on the whole matter m dispute.</p> <p>By the first act, the referees are to state the accounts, and report their opinion thereon to the court. By the latter, they are to make their report, “which shall be conclusive “ as to the state of such accounts, if the same “ shall be confirmed by the court.”</p>

Suit on the defendant’s endorsement of a note. The note was produced with the protest containing a clause by which the notary public certified that he had given notice of the want of payment to the endorser. A witness who had been a clerk to the notary public, now dead, testified that he was a man scrupulously attentive to his business, executing every part of it with minute attention.

This was an action brought to try the right of the corporation of the city of New-Orleans, to drain the waters or the city into the bayou St. John, through the canal Carondelet. The city is built on the Mississippi, the banks of which gradually slope from the river, so that the rain water runs from them into a cypress swamp, which lies behind the city, parallel to the river, and through which runs a creek called the bayou St. John.

<p><¡en^,|hc!l”nfi:</p>

<p>Insolvent cannot mortgage his es tate.</p>

<p>Wife, becoming surety for her husband must officially renounce the laws in favour of women & wives.</p>

<p>_ Attomks’ toffees, only!</p>

The plaintiff having, at the instigation of the defendant, arrested a free negro woman, and shipped her off, was prosecuted* found guilty, fined, imprisoned and condemned to heavy damages. Having suffered the imprisonment and paid the fine and damages, . he brought the present action to compel the plaintiff to indemnify him, or pay his proportion of the ihoney disbursed.

<p>The provisi-extend t0 the temporary go-vemment esu-blished by the schedule. '</p> <p>is Told]1 for"! r^ies^reiating j?»le^on * necessarily aP-'</p>

<p>An¿vbitrary «•ant common Ssh' Governor k void and the it aside.</p>

<p>Attachment for contempt. The original petition stated that the defendant having, by improper means, obtained a letter, written by the plaintiff to a third person, was preparing to publish it, with indecent commentaries : and prayed for an injunction staying the publication, which was as to the letter.</p> <p>On the following day, the defendant filed his answer to which was annexed a copy of the letter, denying that, he obtained it through improper means, and averring it had been sent to him, by the person to whom it was directed. The court thought it proper to sustain the injunction till the hearing.</p> <p>The defendant, a few days after this decision, inserted an advertisement m a newspaper, inviting all persons, who might be desirous to see tire letter, to go to the clerk’s office, where a copy was annexed to his answer, or come to his printing-office, where one was stuck up for public inspection.</p> <p>On an affidavit of these facts, the plaintiff moved for and obtained process of attachment for a contempt of the authority of the court, and a disobedience to the injunction : on the return of the process, the defendant admitted the publication of the advertisement, but denied that any copy, or the original of the letter, was stuck up in his office : and a witness who was introduced and examined viva voce, by consent, deposed, that he had called at the office for a sight of the letter, and was taken into a private room, where it was shown to him, with an injunction of secrecy : and that, to his knowledge, another person had been indulged with the reading of it.</p> <p>The case was argued by Alexander, Depeyster and Smith, for the plaintiff, and Morel and Wilson for the defendant. Mr. Blanque, a lay gentleman was, with the consent of the bar, permitted by the court to speak on that side.</p>

<p>Tlve supreme tocAtóiMÍpw. ceed^ns?*</p>

<p>xhe hn4 Ranted N-’^ Part the ne- and com-breach of the be"considered commons afthe City,</p>

<p>* sea, the voyage is put an end to, by.»fc</p> <p>and her discharged the KaSeeifor snip.</p> <p>Arbitrators roost be sworn.</p>

<p>The return of referees is. always lodgment th0f the Court.</p> <p>interest, on open account, ,rrom the judi-efel demand,</p>

The plaintiffs claimed sundry promissory notes deposited in the defendants’ office of discount and deposit, by the insolvents prior to their failure, which the defendants retained, claiming a lien thereon for monies due them by the insolvents.

<p>Appeal lies elusive deci-®l£ms'</p>

<p>The Supre* Court ,can' not control inferior courts, pending-” on ⅛"</p>

Jacques Villere’, Antoine Bienvenu, Antoine Carraby, Norbert Fortier, Daniel Clark, John Blanque, John Soulié, Denys Delaronde, Chalmet Delino and Bernard Marigny filed their petition in the Court of the First District, (in behalf of themselves and such other of the parties interested, therein named, as should make themselves parties to the suit) stating that, some time in the month of May 1812, P. Ambroise Cuvillier, being indebted to Brognier Declouet, in a large sum of…

<p>Whenever a signature is formally disavowed, proof by expects must be resorted to.</p> <p>The disavowal must be by the party, in writing.</p>

<p>Ceding debtor's counsel fees to be paid by the Syndice.</p>

This was a suit oft a note oí fatnd oí the &j fendants.,, in- which art attachment was obtained and executed on some property of theirs, On their the attachment was quashed and the suit dismissed.' * r_ To- the opinion of the Court, in this respect, the plaintiffs took a bill of exceptions which is fbllows. - ■ Be it remembered that,, on this fourth day of May ⅛ the year 1814, the defendants, by their counsel,moved tothe Court dismiss the attachment issued in this case, and…

The defendant, in 1789“, purchased from St. ⅛ - . , , • Maxent, by two’separate deeds, a plantation New-Orleans, for .S 72,000, and five aegroes B 6000-2 th$ «aráis payable at different periods. lie paid the sum of S 41,985, 75, without any declaration of his intention as . to the debt on which he wished an imputation to be made.

<p>m Shipper freight, If fee delivery of #re conf^nee.</p>

<p>If suit be brought for the balance of an account, compensation</p>

<p>A sale by ceding debtor is void.</p>

<p>If sheriff dies before receiving the amount of a sale, on a fieri facias, his representatives cannot demand it.</p>

<p>It is always time to make the statement of facts, when the judgment is not actually signed.</p>

<p>Husband’s property whether acquired before or during coverture, is bound for the wife's rights, altho' alienated before the dissolution of the marriage.</p>

<p>Sea-unworthiness during the voyage will not entitle the insured to recover.</p>

This case comes upon a bill of exceptions, which states that as the case was called up for trial in the Court below, the attorney for the plaintiff [the appellee here) . . ... moved to amend the petition by writing the resi-d£nce of the petitioner, which it seems had been omitted in the original petition.

<p>Judgment affirmed, with damages there being no statement, &c.</p>

<p>Testimony, by consent taken in lieu of a statement.</p> <p>If a negro be staked on a race to be run, and a second race is run in lieu of the first, the negro is no longer in stake.</p>

<p>Party not allowed to stultify himself.</p>

In this case it appears by the statement of facts, that the appellees are the acknowledged natural children of Sennet, deceased, that . their father by will has left them the whole of his es- , , , , . ... . ., . tate, real and personal, having living at the time of. his decease brothers and sisters.

From the record § it appears that previous to the 24th of March 1812, sued out of the Parish Court of Concordia attachment against R. Williams, one of the defendants. That the said attachment was levied on a negro man named Peter. That he was replevied by Williams and Kitchen, the qther defendant, was his surety in the replevy bond. That judgment was rendered on the attachment for the sum of S 721, 13 1-2, besides interest and costs.

<p>Appeal dismissed for want of a statement, &c.</p>

The following statement of facts, was sent up the District Judge. Blaize Lejeune was £r(J(juce(j ag a wjtness for the plaintiffs and being sworn deposed : that in July last, being in w'ant of money he applied to the defendant to borrow ; the defendant answered him that he had none, but that probably Raper had, as he had Sold him a mulatto boy, which he then shewed, to the witness.

Ctjí the 6th of January 1764, Jacques Courta-bleau obtained a requéte from the commandant 0f the Parish of Opelousas for a tract of land of one hundred arpens of front, with the depth of eighty on one side of the Opelousas River and twenty arpens of front with the depth of forty 0,1 l'ie other side, and the 21st of 1765, aConces- . 1 ^ ⅜ , the following endorsements. “The said land was «jjQ^gbt, at the auction of Mrs.- Courtableau, “ by Mrsv Delamorandiere, to whom the…

<p>Debtor, on a fi. fa. may name the property to be taken: but not real, where there is personal, property. Tho' Sheriff take real, where there is personal, property, the creaditor cannot disavow his act and demand the debt from him.</p>

<p>Res judicata is when the same thing is demanded by the same parties, in the same capacity and for the same cause.</p>

<p>Parol evidence of a sale of land cannot be received tho' the vendee be in a possession.</p>

This cause has been brought up upon a bill of exceptions which states 1. That the plaintiffs and appellees cannot maintain an action against the appellant, they being only a majority of the board of administrators , J . . the public school, while a suit could only be , . , ⅛ , , . brougnt by all of them jointly . 2.

<p>The answer of a partner to interrrogatories suffices, if not excepted to.</p>

<p>No new evidence can be received in the supreme court.</p>

The plaintiffs claim the notes, which are the object of this suit, because they “deposited “ the same iff the hands of Michel de Armas, “ Notary Public, to be retained by him in deposit “till the (said) agreement should be carried into “ effect,- and they allege that the notes were ille- “ gaily taken by Brognier de Clouet from the office “ of Michel de Armas.” : The answer denies these facts, the plaintiffs must prove them.

<p>Martial Law what? An act suspending legal proceedings during an actual invasion is not a law impairing the obligation of contracts.</p>

<p>Former judgment confirmed.</p>

<p>Fraud is presumed in a bankrupt.</p>

<p>A bond given by an Auctioneer, instead of a recognizance, is valid.</p>

<p>If notes be placed in a creditor's hands, to secure him without a written agreement or one not properly registered he will not keep them, against the others.</p>

<p>Mortgagor buying the premises, under a fi' fa' may retain part of his debt becoming afterwards payable, out of the purchase money.</p>

<p>When the wife renounces the law of Toro it need not be shewn that the debt was contracted for her benefit.</p> <p>Where she contracts jointly with her husband, the renunciation of her right, on the subject of the contract, is implied.</p>

<p>A contract of marriage, entered into here, cannot provide that the rights of the parties shall be according to the custom of Paris.</p> <p>Altho' the wife sells common property, jointly with her husband, if she renounces a law not applicable to the case, she will not be bound.</p>

<p>Ceding debtor, without a discharge, is suable.</p>

<p>There cannot be a Curator and Administrator of an estate, where several of the heirs are present and of age.</p>

<p>Vendor does not warrant against a disturbance.</p>

<p>Parol evidence may be received that a person not named as payee, in a bill of exchange, furnished the value and is interested therein.</p>

<p>The fees of counsel, apppointed to an absent debtor, must be fixed by the Court.</p>

<p>When there is a written contract, a workman will be allowed to resort to it, although he had presented an account, claiming less than was stipulated.</p>

<p>Whether thewife has a privelledge for a debt due her before the marriage, by her husband.</p>

<p>No bill of exception lies to a final judgment.</p>

<p>Juror, who has given an opinion, rejected, though he swears his mind is still open to conviction.</p>

<p>If A. buys land for B. he cannot rescind the sale, without B's. consent.</p>

<p>-Authorities cited Chitty 87, Lex Merc 620, 1 tíos. Es? Pul. 652. Walwing vs. St. Quintín, 2, 71 R 718, Rogers vs. Stephens \ Caines 157. '~~Haffmanvs. Smith, 7 Mass. T. R. 452, Wirden vs. Tucker 1. Pothier 146, 157, 1 71 R. 408, Buckerdike vs. Bollman. Max. Pock. Diet. 27, 102, 103, Chitty 27. Comyns on Contracts 252, 253. 5 East. 148 Appleton vs. Bisks, Comyn's Dig. verbo Attorney C. 19. 1 East. 434, 2 Id. \ 142 3 Esp. Rep. 266. 1 Pothier on Obligations 55, 2 Dallas 223, Peake's Ev. (Am. ed.J 165.</p>

<p>An appeal lies, the' the sum recovered be under $300 when that sued for is above.</p>

<p>A suit against Syndics, on a rule of Court, fixing the attorney’s compensationis not a Friday cause, in the Parish Court of Orleans.</p>

<p>T h i s was an action against the acceptor of a bill of exchange. The plaintiff admitted that bill was his property before the acceptance and, that the hand of the drawer was forged. The defendant resisted the payment, because a forged bill is nullity, and what is null can produce no effect. His acceptance, he contended, created no obligation, because it was given in the belief that the bill was a true one ; error vitiates every contract. He contended that the drawee could not derive any right from a bill absolutely null and void, and having none, could not transfer any. Lastly, he held the plaintiff could not recover, because the bill being his property before the acceptance, if he sustained a loss, he could not impute it to an error, into which he was led by the defendant.</p> <p>The authorities adduced in his defence, were from the Roman, the French, and the Spanish laws, which, he insisted are alone to regulate a contract entered into within the city of New-Or leans. •</p> <p>1. From the Roman law, were invoked the well known maxims, nemo plus ad alium trans-Jerre potest quam ipse hahet. Non debeo melius conditionis esse quam autor meus, a quo jus in me transit. No one can transfer a' greater right than he has.</p> <p>Si quis indebitum ignorans solvit, per hanc ac-tionem condicere potestt Dig. lib. 12, tit. b. L 1. s. 1.</p> <p>Quod indehitum per errorem solvitur aut ipsuni aut tantumdem repetitur. Id. 1. 7. Same princi-pie, Id. 1. 18. Whatever has been paid through , / i ■ ° errar may be recovered.</p> <p>2. From the French laws, Domat was cited, who says, that engagements contracted through error, or without consideration⅛ or upon a false consideration, are null. 1 Domat, 126, liv. 1, sect. 1. art. 7.</p> <p>The same principle is also found in 1 Pothier on Obligations.</p> <p>The bearer, who has received the amount of a bill from the drawer, is bound to warrant the genuineness, garantit lavérifé, of the endorsements and of the bill. Jousse's Comm. on Ord. 1673, 249. He who pays a bill, ought to know well the signature of the drawer, otherwise he runs the risk of paying twice ; but, he will have his recourse on him who has improperly received the amount. Id. 360, 300.</p> <p>Th e defendant next shewed that, from a parere of the merchants of Lyons, given in 1777, it appears that the acceptance of a bill, the signature of which has been discovered to be forged, does not bind the acceptor to pay it. The bearer is obliged to submit to the , radiation of the acceptance, and has his recourse against those who have given him the bill. Indeed, the acceptance can only relate to the signature of the drawer. If that be declared a forgery, the acceptance, of which it was the foundation, becomes void and gives ho right ' 0 to the bearer. Farther,, if the bill had been paid. by the acceptor, the bearer would be bound to refund its amount : payment having been obtained on a false title. For it is in an incontes-tible principle that that which is false, can produce no effect. 1 Ency. Jurisp. 90, Verbo Acceptance.</p> <p>The bearer of a bill warrants the genuineness-of it, pnd of all endorsements. If the drawer, deceived by the forgery of the drawer’s signature, has paid it, when the forgery will be discover d, he will pause himself to be repaid by the person, tvho received the amount of it. Several arrests have decided this. Masson & Léclerc's Instructs, &⅛. 232, ch. 18.</p> <p>The same principle is also established by a ,nish authority. The bearer of a bill absolutely^warrants the genuineness of the bill, and of all s endorsements : es enteramente garante de la validación de ella, y de todos sus endosos- 3 Febrero, add. part. 1, 375, n. 52.</p> <p>The plaintiff relied entirely on English and American authorities.</p> <p>1. The English are, 1. Wilkinson vs. Lut-•witch (in 1724.) The proof of an acceptance is a sufficient acknowledgment on the part of the acceptor, who must be supposed to know the hand writing of his correspondent. 1 Strange, 64⅜ but it was said the evidence would not be conelusive. .</p> <p>2. ,%j vs. Fowler &? al. (in 1720.) The defendant offered to prove the bill to be a forgery, by calling persons who were acquainted with the hand of the drawer : but the Chief Justice would not admit this, from the danger to negociable notes, and he strongly inclined to think that even actual proof of forgery would not excuse the defendants against their own acceptance, which had given the bill a credit to the indorsee. 2 Strange, 946.</p> <p>3. Price vs. Neal. If a forged bill be accepted and paid by the drawee, he shall not recovar the money back. Lord Mansfield said it was incumbent on the plaintiff to. be satisfied that the bill drawn upon him, was in the drawer’s hand, before he accepted and paid it, but it was not incumbent on the defendant, to inquire into it. 3 Burr, 1354. 1 IF. Blackst. 390.</p> <p>4. Smith vs. Chester, Butter, J. said—-When a bill is presented for acceptance, the acceptor looks only to the hand-writing of the drawer, which he is afterwards precluded from disputing: andit is on that account that an acceptor is liable even though the bill be forged. T. R. 655.</p> <p>5. Master vs. Miller. The same Judge quotes this doctrine, as having proceeded from'an eminent and learned Judge in anotherplace. “For half “ ⅝ century there have been various cases, which " have the question of forgery untouched. If “ a bill be forged the acceptor is bound.” 1 T. _⅞, 335,</p> <p>6. Jourdan vs. Lashbrook (in 1792) Lord Kenyons aid, that when the drawer accepts a bill, he admits that the bill was signed by the person, by whom it professes to have been made. As-hurst J. said, that bills of exchange are instruments meant, in their nature, for general circula-. tion, and to pass from hand to hand, and every pnan who puts his name upon them, pledges his faith to the public that all circumstances appearing on the face of them are true. Lawrence, J. said an acceptor is only prevented controverting the hand-writing of the drawer, from the mischievous consequences of men giving credit by their acceptances, and then controverting that which must be supposed to be in their knowledge : -and this applies to every fact which the acceptance admits. 3 T. R. 604.</p> <p>7. When a bill is drawn payable to a fictitious person, or order, it is in effect a bill payable to bearer, 3 T. R. 481.</p> <p>8.. In the case of the U. S. vs. the Bank of the XJ. S. iri the Circuit Court of the U. S. for the Pennsylvania' District, in October 1800, before Patterson, J. and Peters, J. Ingersoll, for the defendant, admitted and stated that tía man accept$ a forged bill, or draft, he is not only conscien-tionsly, but legally bound to pay it ; and each the Judges expressly declared their concurrence in the admission. 4 Dallas 235, in.notis.</p> <p>9. In the case oí Levi vs. the Bank of the TJ. S, in the Supreme Court of Pennsylvania, it was held that the Bank were bound to allow the amount of a forged check presented by the plaintiff and entered to his credit, in his cash bopk, in the usual form of a deposit of cash, Id. 234.</p> <p>Lastly. Elementary writers of merit advance the position, that forgery of the drawer’s hand is no plea for the acceptor^ -CAiin/, 355. ch. 4, Kydd 302, ch. 9. •</p>

<p>When the event of a suit is only to determine to whom a debtor is to pay, he may be a witness.</p>

The question submitted to the Court in this case Was whether Madam B ourcier, who sold jointly with her husband several slaves and other property held in common by them, to Paul Lanusse, may causer the sale to be rescinded, on the hypothecary action which she has against the estate of her husband, for the reimbursement of her dowry.

The plaintiff brought suit as special administrator and the defendant denied the legal existence of such an officer. It is unnecessary to enqiure whether the office of special administrator existed under the French and Spanish ments, before the occupation of this country by the United States. Yet, if it existed, the Governor-General and Intendant had the power of fillip it, and this power passed undoubtedly to the person who made the ordinance.

<p>The city of New—Orleans derive no title from Congress to land not part of the commons</p>

<p>Foreign proceedings in bankruptcy, no protection a gainst debts contracted here</p>

<p>If A. buys goods for B., giving his own note, and draws on B., who pays the draft, the goods cannot, on the failure of A., be arrested in the hands agent of B.</p>

<p>The creditor of a bankrupt, on anote, may cUim^by other side! ™tion S‘ven for</p>

<p>The ⅝-y of |xvMce of the parisiv, ami the ¡⅝⅛ ofestabl lishhipr a ferry across the Mis-sisSIpp¡, before ⅛⅞ «⅛'</p>

<p>if counsel take an exception and ■v’er to draw a. bill; bnt the iudjV neglect- it, tUe Court will déi- it u> be drawn and sent Up.</p>

<p>^ citatiqu needs not be headed “ the °W’ ¡nt.er^°“pa°u"Q Pe,r cetlt allowed.</p>

The District Judge having, in pursuance with the order of this Court, transmitted the bill of exceptions, a motion was made on the part of the defendants td remand the cause. The cause ought to ° be remanded 1. Because injustice has been done . r> • • i to us m retusing to continue upon the filedand the letter of the district clerk of N. and it being the first timé at which the defendants were cited. 1 Martin 144 and 134.

<p>Inhabitants Temí». ry oi Orleans, became citi-ana^.iid'rf'"⅛ Louisiana into</p> <p> {VJ° The following important case is admitted in this collection, thd1 out of its original place, on account of the interest it has excited. </p>