Volume 10 — Martin's Louisiana Term Reports (1809–1830)

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>ante 1.</p> <p>Former judgment confirmed.</p>

11 Martin, 555. The court say that the counsel for the defendant relied on Pothier on Mortgages, when, in fact, Pothier on Mortgages was not even cited; but Pothier on Obligations was cited, but not exclusively relied on.

The plaintiff states that he is the owner, by lawful title, of a plantation which formerly belonged to the late J. B. C. Lebreton, which extends so far as to include within its limits, a piece of land forty arpents in depth and ten arpents in width, beyond part of the defendant's plantation; that he is likewise owner of the said land by prescription, having occupied it by himself, or by those to whose title he has succeeded, upwards of thirty years, animo clominii;…

<p>A new trial cannot be granted, because it does not appear, "on what the jury based their verdict</p> <p>Conventional interest cannot be proven by parol.</p> <p>An usage to charge interest at ten per cent. cannot be regarded.</p> <p>Notes avowedly made to a merchant, for the sole purpose of obtaining his endorsement, & by this means his responsibility, are as strictly mercantile paper as a bill of exchange, which subjects parties thereto to mercantile law.</p>

<p>Appeal from the court of the parish and city of New-Orleas.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

Ten creditors have opposed the homologation of the tableau. 1. Samuel Packwood is on the tableau for the amount of his claim; but he contends that he is entitled to a privilege, as his claim is for the rent of the house in Bienville street, occupied by Hanna up to his failure. The question of privilege is submitted to the court. 2.

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>If the vendor be a transient person, and withdraws from the state, immediately after the sale, the vendee may bring his action for rescission, after the return of the vendor--though more than the time of prescription has elapsed since the sale.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>Appeal from the court of the fourth district.</p>

<p>The degree of diligence, required of an agent, who receives compensation for the business he transacts, is that which a prudent man pays to his own affairs, what is called in law ordinary diligence.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>A judgment which contains no reference to any law, nor any of the reasons on which it is grounded, must be reversed.</p> <p>The debt of a husband cannot be enforced against the widow, if she be not his heir or representative, and did not reside, during the marriage, in a state in which a community of goods exist.</p> <p>Judgment, in other states, do not give any lien here, when their execution is not ordered by a judge of this.</p>

<p>Appeal from the court of the fourth district.</p>

<p>Appeal from the court of the first district.</p>

<p>-ante 21.</p> <p>Former judgment confirmed.</p>

<p>Appeal from the court of the first district.— 10 Martin, 690.</p>

<p>The endorsee of a promissory note, or bill of exchange, cannot write over a blank endorsement an obligation, which will discharge him from the necessity of due diligence in making demand and giving notice.</p> <p>It is not sufficient to excuse want of notice,—that the endorser was not injured by the neglect.</p> <p>The endorsee who receives a note after it is due, is obliged to demand payment, and give notice within the same delay, as if the paper was negotiable.</p>

This was an action for the rescission of a sale of a tract of land, on the ground that the vendor had sold the thing of another; that the sale was fraudulent; and that the land was dotal. The defendant pleaded the general issue—that the plaintiff Bonin, immediately after the sale, took possession of the land sold, and still retains it, without ever having been disturbed: and he tendered security for any damages resulting from a legal eviction.

<p>The court of probates has exclusive jurisdiction of all claims against a vacant estate.</p>

<p>The endorsement of a note, is not restrained by its being signed ne varietur by a notary.</p>

<p>Appeal from the court of the fifth district.</p>

<p>The time of the meeting of arbitrators may be shown by parole evidence.</p> <p>Although all the arbitrators must be present, when the award is given, their unanimity is not required by any law.</p>

<p>Appeal from the court of the fifth district.</p>

<p>The party holding the affirmative, is pound to clear establishes his cause.</p>

<p>Appeal from the court of the fifth district.</p>

This suit was brought to recover a narrow strip of land, lying in the parish of St. Mary, consisting of about one arpent front. Dr. James Hennen, who was living on the land at the time the suit was brought, was originally sued. He disclaimed title; stated in his answer, that the land belonged to A. Hennen, of New-Orleans, and that he was in possession as his tenant. The district court ordered, that A. Hennen should be cited in to defend the title, which was done.

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>If the appeal is taken for delay, the judgment of the court below will be affirmed with damage.</p>

<p>If a suit be for damages, and for an injunction to quiet, &c. an appeal will lie, tho' less than $300 be claimed for damages, the land being of sufficient value.</p> <p>Damages are due for the least wrongful entry.</p>

<p>The verdict of a jury will be disregarded, if they find a fact of which there is not the least title of evidence.</p>

<p>No judgment can be reversed on the mere assignment of errors, which might have been cured by evidence legally introduced.</p>

<p>The appeal will be dismissed if there be a bill of exceptions to the final judgment, and no statement of facts.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>This case turned on a question of fact, as to boundaries.</p>

<p>Appeal from the court of the sixth district.</p>

<p>A title calling for objects on both sides of the bayou must be laid out in such a manner as to include each.</p> <p>If no particular limits are given in a title, the land must be surveyed so as to interfere as little as possible with the rights of others.</p> <p>Where a title calls for lands on the east or west side of a water-course, without specifying how much on each, it should be located so as to give an equal quantity on both.</p> <p>Where a certain quantity of superficial arpents is granted, on a part of a bayou, where, from the manner surrounding titles are surveyed, the quantity given cannot be obtained, unless by making the part of the water-course the side line of the survey, it maybe done.</p> <p>An obligation in the alternative gives the debtor the choice; hence where A promised to pay B. $500, or convey him a tract of land, held that it was not such a title as would enable B to plead prescription.</p>

<p>Appeal from the court of the sixth district.</p>

<p>If the appellant fails to bring up his case according to law, the appellee may have the judgment affirmed, with damages for the delay.</p>

On the 7th June, 1819, the present plaintiffs obtained a judgment against L. H. Gardner for $1705 45, which was regularly recorded on the same month. A short time afterwards Gardner died, leaving a considerable property, but greatly involved.

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>A classification may be ordered, before payment by the beneficiary heir.</p>

<p>Appeal from the court of the seventh district.</p>

<p>A defendant may pray that the amount of a judgment which he has lately obtained against the plaintiff, may be deducted from that which the latter is about to obtain.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>If by a rule of the district court, no exception will be heard against an attachment, except those contained in the answer, it is not too late to move for a dismissal, after the trial is gone into.</p> <p>The defendant has a right to demand proof of the authority, of the agent who commenced suit against him, and made affidavit to obtain process of attachment.</p> <p>Bills of exceptions, are to points of law and what is contained in them, will not authorize the reversal of the judgment of an inferior tribunal for erroneous conclusions in matters of fact.</p>

<p> Appeal from the court of the sixth district. </p>

<p>Collateral kindred, claiming as heirs, must establish the death of relations in the ascending line.</p>

<p>A party sued on a note, may be required to answer on oath, whether he did not subscribe, and the payee endorse it.</p> <p>And on his refusal or failure, judgment will be given against him.</p>

<p>Appeal from the court of the sixth district.</p>

<p>A right, supported by a requette, specifying a definite quantity of land, is of higher dignity than that resulting from bare possession, which can only give a pretence of right to the extent actually enclosed.</p>

<p>If the bill of sale state, that the purchasers gave his note for $1500, they may show that each of them (there being two) gave a note for $750.</p>

<p>There is no difference between the want and the failure of consideration of a note. Either may be given in evidence against the payee or endorsee with notice.</p>

The plaintiffs instituted this suit to obtain an order of seizure and sale of certain negroes, sold by M. L. Haynie, the first husband of Anne Sterling Skillman ; one of them to the defendant Lacey—upon which negroes she alleges she had a privilege and mortgage for her dowry, and property brought by her in marriage, the amount of which was ascertained by a decree of this court. The defendants alleged : 1.

<p>When a father sells property to his son at a very low price, the advantage thus conferred is subject to collation.</p> <p>But the difference of price between what the son sells the property for, after a lapse of years, and that which he paid for it, will not be sufficient to establish that the father sold to him at a price below the real value.</p>

<p>The conclusion of the district court, in a matter of fact, will prevail, if the appellant does not show there is error in it.</p>

<p>Appeal from the court of the sixth district.</p>

<p>The defendant’s signature at the foot of an appeal bond, is evidence that he appealed.</p>

<p>Appeal from the court of the sixth district.</p>

<p>If the buyer is disturbed in his possession by the suit of a third person, he may refuse payment, until the vendor gives security.</p>

<p>On a fi. fa. against two, if it be returned that it was stayed, by order of the plaintiff, as to one of the defendants, no ça.sa. can issue against the other.</p>

<p>Appeal from the court of the first district.</p>

prayed for a continuance, on the ground that Workman, who was employed with him, and had undertaken to argue the case, was prevented by indisposition from attending. who insisted that the mover, who was employed by the defendants, was equally able to defend them, and that the cause turned on a single point, a very plain one.

Seghers made oath that C. Andre, a free woman of colour, died in the city of New-Orleans, and G. Antheman, her executor, procured the probate of her will and letters testamentary, and possessed himself of her estate, amounting, according to the inventory, to $2090 99 cents, and the deponent, on the application of a creditor of the estate, was appointed to represent the absent heirs, and instituted a suit to have the will set aside—that the executor and legatees, whom he had…

<p>The supreme court has no general controlling power over other courts.</p>

<p>If there be no statement of facts, &c. the judgment may be affirmed with damages.</p>

<p>Ante, 484.</p> <p>Declarations, when they form a part of the res gestœ, may be given in evidence.</p> <p>The apparent or reputed owner is a good witness between the insurers and insured.</p>

<p>It is sufficient for the validity of a nuncupative will, under private signature, that it be passed in the presence of three witnesses residing where the testament is received or of four others.</p>

<p>If the record be filed, on the day after the return day, the appeal will be dismissed.</p>

<p>Appeal from the court of the first district.</p>

<p>ante, 475.</p> <p>Application for a rehearing.</p>

<p>The opinion of the inferior court, on a question of fact, prevails in the supreme courts, unless manifestly erroneous.</p> <p>Strong proof ought to be required, on a motion to dissolve an attachment.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>A defendant, who does not plead in abatement, admits that his residence, and that of the plaintiff, is correctly stated in the petition.</p> <p>If a note does no state, the place in which it was given, the court may presume that it was given at the place in which the maker and payee reside.</p> <p>A subscribing witness, to a note given out of the state, is presumed to be out of the jurisdiction of its courts.</p>

The petitioners, who are the heirs of the late Zenon Trudeau, brought this suit to obtain the payment of a debt due to them by the insolvent, as a… Held: that the property sold did not belong absolutely to the purchaser until the price was fully paid. However that matter may be among us, it is clear, from an attentive examination of our statutes, that the vendor's privilege, on the thing sold, is not one of those liens which requires to be recorded in order to be preserved.

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>Appeal from the court of the first district.</p>

<p>ante 507.</p> <p>Former judgment undisturbed.</p>

<p>Appeal from the court of the third district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the second district.</p>

<p>Appeal from the court of the fourth district.</p>

<p>Appeal from the court of the first district.</p>

<p>After proceedings commenced for a forced surrender, suit cannot be carried on by a single creditor.</p>

<p>Prescription cannot be pleaded in the supreme court.</p> <p>Parol evidence, though not admissible as to title, is so as to possession.</p>

The district court erred in condemning the defendant and appellant to pay a sum of money, without saving his right, to pay in sugar, according to his contract; and in refusing to require the plaintiff to give security to indemnify the debtor, in case the note, which the former alleged to be should have been transferred. Will it be said that the defendant lost the faculty of discharging his obligation.

<p>A ca. sa. must be returnable in no less than 60, nor more than 90 days.</p>

<p>Forty-eight jurors must be returned, to each term of the parish court of N. Orleans.</p>

<p>Appeal from the court of the second district.</p>

<p>A party may attach the amount of a judgment recovered against himself.</p>

<p>An order of seizure and sale can issue on an authentic act written in the French language.</p> <p>An acknowledgment of the debt and mortgage in a public act, amounts to confession of judgment.</p>

<p>Appeal from the court of the second district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the fourth district.</p>

The validity of the testament of the late A. Andrews, is the sole point in dispute in this case. If it be not good as a nuncupative testament, as it is attested by no more than three witnesses, instead of the number which the law requires, it certainly has all the requisites to constitute a valid olographic testament. It is entirely written, signed and dated with the testator’s hand; and the law subjects this will to no other formality.