Volume 2 — Martin's Louisiana Term Reports (1809–1830)

This was a suit on a promissory note. On a final judgment being given for the plaintiff, the defendant filed a bill of exceptions and took an appeal. The plaintiff and appellee contended that the supreme court could not examine the case, as there was no statement of facts, and the bill of exceptions had been taken to the opinion of the court on a final judgment. See Bujac & al. vs. Mayhew, 3 Martin, 613.

<p>An injunction not to molest or trouble, does not prevent a suit to ascertain a right.</p> <p>Land, not susceptible of alienation, cannot be acquired by prescription.</p> <p>The Mayor &c. of New-Orleans, may sue for the removal of a nuisance.</p>

The Court having been divided, on the first argument of this case, their attention was again drawn to it. By consent, three paragraph of the Moniteur de la Louisiane, a paper printed under the eye of the Baron de Carondelet, were read in evidence. They were allowed to be official.

<p>If the mortgagee receive a negotiable note for his debt, he cannot resort to his lien, without showing that he still holds the note unpaid.</p> <p>If a debt, secured by a mortgage, be intermingled in an account, with simple debts of a greater amount, and a small balance due on the whole, so that it does not appear whether the balance be part of the mortgage debt or of the simple ones, the creditor shall not be allowed to avail himself of his mortgage.</p>

The plaintiff brought his action to recover the value of sundry articles by him furnished for the ship Jane, of New-York, of which he alleges the defendant is owner. The action being against an absent debtor, a writ of attachment issued and was levied on certain goods of the defendant, in the possession of Talcott & Bowers, who were summoned and interrogated as garnishees.

* read an affidavit, stating that the plaintiff, in his petition, demanded one thousand dollars for his damages, but had recovered a sum under three hundred dollars; that the parish judge erroneously concluded, that the jurisdiction of the supreme court was limited by the sum recovered and not by that claimed, and had refused to allow an appeal: whereupon, he prayed and obtained a rule to shew cause why a mandamus should not issue; on the service of which the judge allowed…

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

<p>If it does not appear that the matter in dispute exceeds the value of $300, the appeal will be dismissed.</p>

The plaintiff sued for the recovery of a sum three hundred dollars, loaned to the defendant, with interest, and recovered accordingly. The defendant Barnwell appealed after the signing of the judgment, and took no measure to provide a statement of facts. The plaintiff moved to have the judgment affirmed with damages, under the 12th section of the act organizing the supreme court; and the defendant moved to dismiss his appeal.

This action was grounded on a written contract, the preamble of which sets forth that at the death of Joseph Faurie, the plaintiff’s husband, “ the protection of government granted to his widow, the usufruct of part of the office of a public auctioneer, which the deceased had filled, by a declaration that no person should be appointed thereto, who would not take the widow as a partner; and on the resignation of Bailly Blanchard, who had the office during thirty-one months,…

THE plaintiffs had asked for a jury in their petition, and now Ellery moved that he might be allowed to wave the jury, the suit being bro't upon a promissory note, and the defendant's counsel might be compelled to suffer judgment to be entered, unless he wrote the word defence, on the answer, according to the rule of court. Ante 9, The plaintiffs having prayed a jury, the defendant was not bound to make the same prayer. It would have been vain and useless.

<p>The crime of estabbing with an intent to murder, intends murder of the first degree.</p>

The petition stated that the plaintiffs are the owners of a slave, whom they inherited from their grandmother, and who was unlawfully detained by the defendant. The answer denied all the facts, and averred that the defendant purchased the slave at a public auction, from the proper officer. There was a verdict and judgment for the plaintiffs, and the defendant appealed.

<p>This suit was brought to recover a negro slave, in the possession of the defendant. The answer stated the possession of the defendant during six years, with the plaiiitiff's knowledge. It began by the usual manner of reserving of all and every manner of advantage, &c. and did not deny the plaintiff's title.</p> <p>We need not adduce evidence of our title.-We have set it forth in the petition, and the answer does not deny</p> <p>We admitted nothing and we have reserved all our rights, by an express clause.</p>

The defendant had been bail, in the original action, during the pendericy of which, Browii, the defendant, obtained a stay of proceedings no discharge being granted by the creditors, the plaintiff proceeded to judgment againstthe principal, and there being no surrender, judgment was now prayed against the bail. The bail was discharged by the order of the judge granting a stay of proceedings.

The petition stated that the plaintiff was owner of a mulatto slave, who ran away and arrested and confined in the jail of the city New-Orleans; that the defendant, a neighbour of the plaintiff, being occasionally in that city, took upon himself, of his own authority and upon his own responsibility, to take the mulatto out of jail (representing that he was charged by the plaintiff to do the same) for the purpose of bringing him to the plaintiff—and did actually start on his…

This was an action brought to recover the price of a negro, sold by the defendant for the plaintiff. one of the interrogatories, the… Held: that when an answer is put in issue, what is confessed and admitted, need not be proven by plaintiff, but that it behoved defendant to make out by proof what was insisted upon, by way of avoidance; but with this distinction, that if defendant admitted a fact, and insisted upon a distinct fact by way of avoidance, there he ought to…

<p>If the subscribing witness to a deed reside out of the state, his handwriting being proved, the deed will be read.</p> <p>When the party does not formally deny his signature, it may be proven by witnesses.</p> <p>A report subscribed by a witness may be read, in order to weaken his testimony by shewing a discrepancy between what he signed & what, he swears.</p> <p>A stockholder cannot be witness for the corporation.</p> <p>Hearsay is no testimony.</p> <p>A member of an unincorporated company is bound in solido for its debts.</p> <p>The nature, validity and construction of a contract determined according to the lex loci the remedy, according to lex fori.</p>

The plaintiff in his petition, stated that the late firm of Reynaud and Peytavin being indebted to him in the sum of $2056, Reynaud and Peytavia, juniors, made their promissory note for the said sum, as attornies in fact to the said firm, payable to the plaintiff, one year after date; that the defendant, surviving partner of the said firm, has assumed the management and administration of its affairs and is liable to pay that sum, which he refuses to pay.

<p>If the creditors do not shew cause, on the day appointed,thein-solvent may be discharged without further notice.</p>

<p>Thefront squares on Levee-street, in New-Orleans, having been extended, by encroachment,have still their original back line.</p> <p>The full period of presciption must he reckoned from its inter. ruption.</p>

<p>If a sheriff wrongfully executes the process of a court, he may be sued therefore in another.</p>

The action was brought on a protested bill of exchange, of which the defendant was the immediate endorser of the plaintiff. The latter, had a verdict and judgment, and the former appealed. There was no statement of facts, and the cause was heard above on two bills of exceptions. At the trial, Hennen, the plaintiff's counsel, offered himself as a witness, to prove that the defendant had promised to pay the amount of the bill, on which the suit is brought.

The plaintiff had brought suit for her dotal rights, against the defendants, syndics of her husband's estate, and obtained judgment, but no at-lowance was made to her for interest; none having been prayed: she now instituted the present Suit to recover the interest.

This action was brought to recover damages for the neglect of the defendant's testator to fulfill certain engagements with the plaintiffs. The Company being desirous to improve the navigation of thc Bayou St. John, invited persons, inn situation to fulfil their intentions, to make proposals; The defendants' testator offered a plan, which he undertook to complete before the last of March 1807, and the plaintiffs engaged to pay him therefor forty-one thousand dollars.

Habeas corpus. He was committed by the Mayor of the city of New-Orleans, who is a Justice of the peace ex officio, on a judgment condemning him to fine and imprisonment. He ought to be discharged: for the act authorisiug justices of the peace to fine and imprison, is unconstitutional.

<p>A creditor, who, to secure his debt, receives a bill of sale of slaves, in lieu of a mortgage, cannot take possession of them by his own act.</p>

<p>On the 25th of February, the plaintiff attached a debt due to the defendant, who, on the 28th of the same month, made a cessio bonorum, and obtained a stay of proceedings. On the 7th of March, the syndics of the defendant maved to have the attachment dissolved.</p> <p>This cannot be done. The attachment has created a lien, which the defendand cannot, by any act of his, dissolve or impair. His syndics cannot have acquired, by the cessio, more than the ceding debtor possessed.</p> <p>Our attachment is like the praetorium pignus of the civil law: quoda judicibus datur et praetorium nuncupatur. Cod. lib. 8, tit. 22, l. 2. veteris, &c.</p> <p>It is true, by the Roman law, the creditor was put in possession, and by our process of attachment the goods remain in the sheriff's hands. But it seems immaterial, on the merits, whether a party be put in possession, or the sheriff for him. Neither was the possession, in every base, given to the plaintiff, at Rome. Sometimes it remained with the executor judicii.</p> <p>Let us inquire into the nature and effects of the dignus, according to the Roman law.</p> <p>Praetorium dicitur, because taken by virtue of the praetorian law. Loco citato n. 1.</p> <p>It was in securitateni crediti. 1. Huberus 358. 2 Struvius 3. Necessarium, praetorium vet legale, Praetorium, vet ex causa judicata or ex praetorio jussu. Id. 6, n. 9. Ante litém contestatam set-vandi causa cautionem. Id. By the decree of the praetor, on summary proof, danger shewn, and reason why this mode of proceeding should be resorted to.</p> <p>So our process of attachment, by the act of 1805, ch. 26.</p> <p>Every nation regulates the mode by which relief is to be obtained in her tribunals. Our legislature has pointed that to us, in cases of attachment leaving the effect to be regulated by pre-existing laws.</p> <p>This process is a means of obtaining security for the debt; not a mode only of giving jurisdiction to the court: a proceeding in rem, a means of securing and preventing its being diverted, so as to defeat the plaintiff's claim.</p> <p>Our legislature has pointed the two modes, by which the lien acquired, by the attaching creditor, on the goods seized, may be dissolved-disproving the facts alledged to obtain it-giving security to pay the debt. 1805, c. 26.</p> <p>If giving jurisdiction to the court was the only object, property of the least value would suffice; and after plea, the end being obtained, the property should be restored. But the act expressly requires goods to be taken, to the amount of the. debt and costs; and if the fact advanced be not denied, that the goods be kept till there be security to pay.</p> <p>The Spanish law has a provision still more fa-vourable to the creditor. "If any one, &c. any " creditor may take the debtor's goods, if there be "no judge, and retain them till he be paid, without being obliged to divide with the other credi- " tors." 5 Fartida l. 15. It is true this relates only to the case of a creditor seizing goods, which the debtor is carrying away in his flight. Why may we not extend, in the spirit of this law, the effect of ours, so as to give a preference to an industrious creditor, the object being equally obtained by taking any other property?</p> <p>Here, the property attached was incorporeal, not tangible. It, therefore, accompanied the party, the property or right always residing in him. wherever he went.</p> <p>The priviledge is given to the attaching creditor as a reward for his securing so much property from the debtor running away. Had the present plaintiff followed the debtor, he could not have taken the property attached; all that could be done to secure, was to attach, it. By his diligence the oh-ject has been attained,, the property secured for the plaintiff, and the balance, after paying him, for the other creditors. He is therefore fairly entitled to a preference.</p> <p>Such is the opinion of Febrero, lib. 3, ch. 3, sec. 2, n. 96. See also Curia Phillipica.</p> <p>Before the creditors at large be put in possession, those who acquired prior rights must be satisfied. Dig. 1. 42, tit. 8, 1. 6, s. 6. Apud Labeonem scriptum est. Id. lib. 1O,s. 16. Si debitorem meum.</p> <p>Labeo says: he who receives his own, does not take in fraud, for he takes nothing but what be. longs to him. The words qua infraudem credi-torum facta sunt, relate only to contracts, and surely cannot affect cases, in which possession or a pledge was obtained by a judge's order.</p> <p>I have thus shewn that the praetotorium pignus vested a right, and was something more than a mere precess to give jurisdiction. I conclude that our attachment has the same effect. The principles of the Roman and Spanish laws remaining in full vigour, unimpaired, and perhaps strengthened by our attachment law.</p> <p>The means shews the nature of the end. The goods are not released after aplea, or even bail. The defendant, if he do not deny the suggestions of the plaintiff, cannot recover his property, without giving security to pay.</p> <p>Mazureau for the syndics. All the propositions, advanced by them plaintiff's counsel, are perfectly correct, when the property of the debtor suffices to pay all his creditors.</p> <p>But, when the failure is open by the debtor's flight, a guarnished creditor must bring into hotch-pot, what he was allowed to attach for the benefit of all the creditors, not for his own only.</p> <p>There is no difference, in this case, in the Roman law, that of Spain and ours-the similitude is almost perfect between the praetorium pignus, the praetorian prenda, and our process of attachment.</p> <p>A Third mode of hypotecation, is the praetorian (prenda) when the judge, in case of contu-mace or default of the defendant, puts his goods in the possession of the plaintiff. Curia Phillipica 361, n. 3, 4 Febrero 44, n. 56, in the assenta-niento, or putting in possession.</p> <p>Rebeldes ought not to be in a better situation than those who appear: the proceedings-in case of rebeldia, are to be the same as in case of contestation.</p> <p>If the plaintiff ask to be put in possession, the judge shall grant it. If the suit be for real property, possession shall be given till the rebeldia be purged. If the suit he. br damages or for personal property, goods to the amount of the debt shall be given to the plaintiff, or real property. 1 Re-cop. de Castilla, 587, tit. 11, l. 1. 3 Partida l. 1, tit. 8.</p> <p>One of the modes of proceeding against deb. tors, says Villadiego, is por via de assentamiento, by putting the plaintiff in possession, and requiring the defendant to constitute a known attorney in his stead. If he do not appear, the plaintiff demands a sale. If he appear, he is required, before the property be restored to him, to give fianzas de estar in derecho, and judicatum solvi. villa-diego 23, n. 57.</p> <p>Ifan appearance and plea entitled him to the liberation of the property, he would come in, take it away, and waste it. But the provision, in this respect, is merely to prevent the debtor's fraud-not to allow the plaintiff to pounce on his property, and entirely to exclude the other creditors.</p> <p>The prenda, however, differs in its effects from our attachment. Like the Roman pignus, it is an interlocutory judgment, and puts the plaintiff into actual possession; while the attachment au-thorises the sheriff to seize the goods only, with out allowing the plaintiff to touch them.</p> <p>In case of insolvency, neither gives any lien or preference.</p> <p>In France, the saisie-arret, which is the corresponding process,is not more favourable to the plaintiff. The goods seized fall into a hotchpot, if the debtor be unable to pay all his creditors. Contribution takes place between all the creditors in case of insolvency. 3 Jurisp. Encycl. 302, Verbo Contribution. The sezing creditor is preferred, except in case of insolvency. 7 id. 507. Verbo Saisissant. The diligence of a chirogra_ phary creditor avails him: but in case of insolvency, he saves the property from dilapidation only. 16 Repert. de Jurisp. 406, 411, 412. A pawnee is preferred, but not a seizing creditor, in case of insolvency. 1 Domat, 326, lib. 4, sect. 2. Citing 2 Coutume de Paris, art. 178, p. 1348 in textu. The industry of the seizing creditor does not avail him to the exclusion of others, if the debtor prove insolvent: his goods must be divided. Ferriere.</p> <p>• The praetor puts in possession, not only the attaching creditors, but all others. Cada uno por su orden. 16 Rodriguez's Digest, 245. Contribution, aprorata: one creditor may seize the goods, but he must account to the others. The condition of the occupant is sometimes like that of the rest. Id.</p> <p>The prenda has no greater effect than the saisie-arrét.</p> <p>There is a difference between the praetorian and the judiciai prenda. The first puts the plaintiff in possession for all the creditors. Otherwise the judicial. Cur. Phil. 364, n. 37, 2 Febrero, 44, 45, art. 56.</p> <p>The judge orders the plaintiff in possession, on default, or por juicio-pignus judiciale. 5 Par-tida l. 1, tit. 12, Greg. Lopez's comm. He, whom the praetor allows to take hold, does not do it for himself alone; the order of creditors is not thereby deranged. All ex ordine.</p> <p>E only case, in which the seizing creditor is preferred, is where he takes hold of property which the debtor is flying with. For then, it clearly appears that it is only by his industry and labour, that this is saved. Therefore the 5 Par-tida, tit. 15, l. 10, gives a priviledge to the creditor who actually takes the property, which the debtor his carrying away, in his flight.</p> <p>The plaintiff, in this case, did not arrest the defendant, neither did he go after him, neither did he seize any thing that he was carrying away. Tomar lo que llevava; creditor retardara el con todo que lievava con sigo.</p> <p>A creditor, who arrests his debtor who is running away, acquires no lien, no priviledge on any property left behind.</p> <p>It is correct to say, as ageneral principle, that a creditor may retain his own, when he acquires it without fraud: But, in case of insolvency, exceptions have been made, in every commercial country, and an equal distribution is to be made</p> <p>Livingston, in reply. The praetorium pignus was, at Rome, a mode of obtaining security for a debt, at the inception of a suit: and although the process may have been variously modified, by different nations, in most, and in this in particu1ar, it gives a pledge or lien.</p> <p>In France, the effect of a saisie-arret is determined by express and positive laws; and the writers of that nation, to whom the counsel of the syndics has had recourse, give an account of the effect of the law of their own country.</p> <p>Domat, who may emphatically be stiled a writer on the Roman law, who invariably quotes it, when he derives his principles from it; and the main object of whose work was perhaps to shew the discrepancies between the French and Roman laws, says; it is so determined in a number of coutumes, citing that of Paris. We must, therefore, conclude that he did not ground his opinion on any maxim of the Roman Law.</p> <p>It does not appear that the principle, contended for, was in vigour in any of the French provinces de droit cedit, in which the Roman law more eminently prevailed.</p> <p>Villadiego, cited by the counsel of the syndics, states that the praetorian prenda is not dissolved, without giving security. February and the author of Curia Phillipica, think there is no prelacion preference, and refer to the Digest. The Court will make their own conclusions. Febrero's writings are esteemed as affording a good practical work, but of no great authority on doctrinal points.</p> <p>Whatever may be the construction, given to the effect of the prenda and saisie-arret in Spain and France, I have shewn that the praetorium pig-nus, at Rome, gave a lien to the plaintiff; and the act of our legislature supports me in saying that our process of attachment must have the same effect here ; for the property is to remain in the sheriff's hands, when the allegations of the plaintiff are not disproved, till security to pay the debt be given, 1805, ch. 26 : and another act recognises the lien created by attachments. All liens by judgment or attachment, to Continue. 1805, ch. 29.</p>

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

<p>The district court cannot amend its judgment, after it is signed and execution has issued, and if an appeal be brought on the judgment, so amended, a statement of facts made after its original signature will not be legal.</p>

<p>A bill of exception to the final decision of the court is irregular.</p>

*** See a full statement of facts in the beginning of the opinion of the court. By the case, it appears that the legal title to the land, of which the premises are a part, was vested by grant of the crown, in those under whom the plaintiffs claim, and that their title was confirmed.

defendant below, moved for leave to amend his answer, by stating that the note on which the suit was brought, was obtained by fraud. The defendant has answered that he has paid the note; an amendment denying the fact advanced, cannot be received.

He became insolvent in the city of Philadel-hia, in which he carried on commerce, assigned all his property for the benefit of a small number of his creditors, and the balance, after paying these, for the benefit of the rest. Without obtaining any discharge, he came to New-Orleans, where he brought or received, a power of attorney from his trustees, to collect for them a considerable sum, due him, before the assignment.

<p>Person, entrusted with goods, no witness against the cletainer.</p>

<p>No sumMary relief against sheriff failing to bring money into Court.</p>

THIS was an action on two promissory notes. The defendant, after the day of the date and before that of payment, called his creditors, from whom he obtained a respite, and the proceedings before the notary were homologated. A motion was now made to discharge the bail. The defendant resists our suit, in consequence of a forced respite, which it is contended he has obtaihed under the 16th title of the Civil Code, 438.

INDICT ME NT for robbery, on one Mar~ann Lopezp a Spaniard, of twenty mules, and merchandize to the value of six thousand dollars. TB F. robbery appeared to have been committed, on the pucliv road leading from Natchi-toches to Nacogdoches, and west of the Rio Hon-do. IT was contended, for the defendants, that the plac~ where the act was cornthitted, was not within the limits of the territory, and consequently, out of the jurisdiction of the court.

<p>Juror discharged, on his own motion.</p>

offered in evidence an authenticated copy, made by the parish judge, of a conveyance of property, sold under execution in pursuance of the 26th section of the act of 1807, ch. 1. * It cannot be read. This act provides that sales under execution shall be made, as prescrived by the act of 1805, ch. 46, sect. 15, which refers us to the act of the same year, ch. 25, sect. 10.

The petition stated that the plaintiff bought a tract of land, from the defendants' ancestor, and that they had dispossessed him. He claimed a retoration nof the land on damages. The defendants pleaded that they were not bound to answer, because the matter bad been settled in a suit, determined in New-Orleans at a former term. The cause ought to be tried: nothing remains but to assess the damages. The plea having been overruled, the suit remains to be tried on the merits.

<p>Appeal bro't without a citation, dismissed.</p>

The appeal cannot be sustained. The act of 1807, ch. 1, sec. 19. authorses appeals in cases of final judgment. A judgment of nonsuit is not final-neither will the Court take cognizance of a suit below 100 dollars. The costs in the present cause do not exceed 17 dollars. A judgment of nonsuit is final in the case, and the sum in dispute, and not that which is recovered, gives the jurisdiction.

<p>Spanish governors' orders, prove themselves.</p> <p>Long absence, when evidence of death.</p>

moved for leave to amend the petition, by striking out the name Ganeson. If pendence lite a stay Spring 1812. II. District.

<p>If pendence lite a stay be ordered, and suit proceed</p>

<p>A suit cannot be dismissed in the vacation. If appeal be abandoned, execution shall not issue from the Court above.</p>

<p>The plaintiffs, having sued out an order of seizure under which the property of the defendants was taken, they filed an answer, and an order was obtained for the suspension of the sale: the cause was tried, and judgment being given for the plaintiffs, the defendants paid te amount of it, before any writ issued for the sale of the property seized.</p> <p>Before the property should be restored, the defendants should pay his poundage, under the act of 1805, ch. 49, which provides that the sheriff shall be entitled to receive the compensation specified in the act of the same year, ch. 36, s. 3, for the levying monies by writ of fieri facias, in all cases where the money shall not be paid within seventy-two hour form the time the said writ of execution shall have been served. A writ of seizute is as completely a fieri facias for writ of execution, as that which issues after judgment in Court.</p> <p>A writ of seizure is the original process, in a suit for the recovery of money, secured by mortgage. If the parties disagree on their respective rights, this mode of instituting a suit, is the only proper one. More than seventy-two hours must elapse in every case, before the controversy be determined, and according to the proposition advanced, the defend.ant must ever be mukted. If he succeeds, surely he must get rid of the poundage ; the rule must be the same if, during the pendency of the suit, and even afterwards, the matter be settled in any manner that render a sale unnecessary</p>

<p>Insolvent's commissioners' return, is to be under real.</p>

Appeal. No bond having been filed: The appeal ought to be dismissed, In the case of Wall vs. Pousset's executors, Judge Mathews held that there could be no appeal, unless a bond was filed. The actof the legislature has made no provision for any appeal, from the Parish Court, without bond. No law requires that the appellant should give bond.

moved to set aside a judgment by default, on an affidavit of the defendant, that he had agood and equitable defence. The affidavit is insufficient, the cause ought to be set forth. The Court always require it, on a motion for a new trial. 1 Martin, 148. André vs. Bienvenu.

shortly after filing his answer, mov~iot leave to amend it, by adding a prayer for a jury. The Court will not grant it, unless they be convinced of the necessity of the amendment, and that the only object of it, is not to delay the trial.

<p>Suit on a promissory note, with a subscribing witness. The petition contained an interrogato- ry, by which the defendant was required to say, whether the signature, at the foot of the note, was not in his hand-writing.</p> <p>The interrogatory is inadmissible. This mode of probing the defendant's conscience, can only be resorted to, where a fact cannot otherwise be prove.</p> <p>In Read vs. Bailey, it was said by Lewis, J. that the reason of the law, in permitting a party to resort to the conscience of his adversary for a disclosure of factsm is founded in necessity, and is intended to apply only in cases where the evidence sought for, is wholly in the power of the party, called upon to disclose. Ante 76.</p> <p>In Randle's adrs. vs. Judice, and Hart & al. vs. Bourgeois-the Court, Lewiss, J. alone, ruled that the defendants could not be called upon to answer interrogatories, concerning the genuineness of the notes.</p> <p>The party, who acknowledges he has no proof, or an insufficient one, may require the oath of his opponent. 1 Domut, l. 3, t. 6, sect. 4.</p> <p>As it often happens that he, who has to prove a contested fact, has neither writing, nor witnes~-ses, nor sufficient presumptions, the confession of it is obtained from the mouth of his adversary. Id. sect. 5.</p> <p>third manner of obtaining a party's con-~ess~n, is~ where he who cannot have the proof of a fact, which he alledges, refers himself to the oath of his adversary. Id.</p> <p>Our statute points out the mode in which a contested signature to a note, is to be prove. In case the party disavows his signature, proof of it may be given by at least one credible withess, de-daring positively that he knows the signature, as having seen the obligation signed; or the signature iajust be ascertained by two persons having skill judge of hand-writing, after having compared it with papers, acknowledged to have been signed by the party. Civil Code, 306, art. 226.</p> <p>In this case, it clearly appears that the plaintiffs have proofs within their power-they cannot, therefore, call on the defendants to supply them with evidence. On general principles, therefore, the interrogatory is improper. Farther, the law has made a special provision for this case. It appears there is a subscribing witness, he, therefore, must be brought forth-if there were none, a report of experts, or the answer of the defendant, might be the proper criterion.</p> <p>Our statute has expressly provided that, " when any plaintiff shall wish to " obtain a discovery, from the defendant on oath, "such plaintiff may insert, in his petition, perti"nent interrogatories." 1805, ch. 26, s. 7.</p> <p>It is not necessary that the plaintiff should need, it suffices that he wishes such a discovery.</p> <p>The statute has but one exception-provided that the interrogatory does not charge the defendant with any crime or offence.</p> <p>The Civil Code, 316, contains nearly the same provisions. It provides for the case, in which the judge may wholly, or in part, dispense with the answer of the party interrogated, viz. when the interrogatory is impertinent, and has no reference to the issue. Id. art. 262. In all other case, it seems the party must answer.</p> <p>As the law often gives concurrent remedies, there is no incongruity in allowing concurrent means of proof.</p>

<p>If leave be given to answer, so as not to delay the trial, a right to a trial by jury is not thereby to be understood to be given up, altho' to obtain it, the trial may be delayed.</p>

This man, an inhabitant of the state of Kentucky, came down on a trading voyage to New-Orleans, and was recognised as a witness to attend the trial of an indictments. on his behalf, now claimed the daily allowance, made by the act of 1807, chap. 2, sect. 8, and milage to his place of residence in Kentucky. The daily allowance was claimed, from the date of the recognisance till the indictment was disposed of.

HE was arrested under the 22d sect. of the act of 1807, ch. 1,on the affidavit of the agent orone of his creditors. moved that they might be allowed to disprove the intention frauddlently and permanently to-depart--in order to obtain his release, without giving security.

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

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

<p>Creditor, whose debt is denied, may sue, notwithstanding the delay granted.</p>

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

<p>Appellee must confine himself to the general answer, Unless he have leave.</p>

<p>The French and English part of an act, construed together, not viewed as distinct acts.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p> <p>Abram Barker, in his petition, stated himself to be the lawful owner of a quantity of cotton, shipped by Connellin to Jacob Barker, of New-York, on his account and risk, which he, Connellin, had purchased, as agent of the said Jacob Barker, who assigned it to the petitioner: that the cotton was attached by Jacob Barker, discontinued his suit: that the defendants have possessed themselves of it and refuse to deliver it.</p> <p>The defendants pleaded the general issue and there was judgment for them: the plaintiff appealed.</p> <p>The statement of facts shews that Connellin purchased the cotton from Samuel Elkins, and shipped it, on board of a vessel belonging to Jacob Barker of New-York: that the vendor instituted a suit, in which the cotton was seized, and in which Jacob Barker intervened, but the suit was discontinued: that the vendor instituted another suit, claiming a privilege on the cotton as vendor, in which the cotton was sequestrated and removed on shore, and a part of it was sold, by an order of court, to satisfy the sheriff for some disbursements made thereon, and the petitioner intervened, but the suit was discontinued, and Connellin having failed, the residue of the cotton was delivered by the sheriff to the defendants, who afterwards obtained an order of cour for the sale of some of the cotton, to pay charges of storage, &c. The present suit is brought to recover the residue, claimed by the petitioner, under an assignment from Jacob Barker. The defendants proved that Connellin, though an agent of Jacob Barker, did at times business on his own account, and in order to shew that the cotton in dispute was bought in his own right, they produced the oath of the vendor, now one of the syndics and defendants, and Connellin’s own declaration, annexed to his schedule. No bill of lading was produced or proven to have been given; and it was proven that Talcott and Bowers were the agents of Jacob Barker, in New-Orleans.</p> <p>Talcott, of the firm of Talcott & Bowers, deposed that the cotton was, as Connellin informed him, shipped for the account and risk of Jacob Barker, for whom he had purchased it, and on whom he had drawn bills for its amount, in favor of Elkin.—that he had knowledge of Connellin’s concerns, and believes he did little, if any business at all, on his own account. He had been sent to New-Orleans, as the agent of Jacob Barker, whose affairs here consisted in the purchase of produce and the dispatch of vessels, of which he had several, at the time in New-Orleans : he was furnished with a considerable sum in post notes, and had authority to draw. The witness heard that Connellin's bills on Jacob Barker, for the purchase of the cotton, had been suffered to lie over, but he has since understood he had got over his difficulties, was fully able to pay his debts, and was about satisfying the holders.</p> <p>Basset deposed that, shortly after the failure of Jacob Barker, he heard Connellin say that, although Barker owed him about $6000 for a balance of accounts, he would remain perfectly easy, as he had no fears of losing one cent of it.</p> <p>Our case is fully proven. It is in evidence that the insolvent was our agent in New-Orleans for the purchase of produce. It is true it is shewn that, independently of this, he did at times some business on his own account, but the witness say little, if any, business was done by him in this way. To balance the presumption arising from this circumstance, we shew that the cotton was shipped in our vessel, that the payment of it was effected with our funds, by bills given to the vendor on ourselves or rather the person under whom we claim. These three circumstances, viz. the purchase of the cotton by Jacob Barker's agent, the payment of it by bills drawn by the agent on the principal, under the authority with which he was clothed, and the shipment of it in Jacob Barker’s vessel, lead to the conclusion that the cotton was bought on his account. Admitting that the proof is not absolutely conclusive, and that it might be shewn against it, that the insolvent bought the cotton for his own account, yet the circumstances raise a violent presumption, which will stand till the contrary be proven. Stabit presumptio donec contrarium probetur.</p> <p>There is no proof of the insolvent having acted as the agent of Jacob Barker, except in the deposition of Talcott, and this witness derives all his knowledge from his conversations with the insolvent. After failure the debtor cannot even acknowledge his signature on a note. In the case of Menendez vs. Larinda's syndics, 3 Martin 258, 705, this courtield that on a contest as to the legitimacy of claim among creditors, the confession of the insolven, or his acknowledgment of any instrument, takes no proof, except as to his liability to pay, but not against his creditors ; because it is considered as fraudulent. Fraud is always presumed in case of bankruptcy. Misotiere’s syndics vs. Cognard, id. 561. Mitchell vs. McMillan id. 695.</p> <p>It is true the statement of facts shews that the cotton was shipped, by the insolvent, on board of a vessel belonging to Jacob Barker ; but it does not appear that it was even consigned to him, much less that it was shipped on his account and risk, a circumstance which, by the production of the bills of lading, might have been placed beyond a doubt. It is in evidence that the insolvent traded on his own account, and other circumstances in the statement shew that cotton was not purchased for the account of Jacob Barker.</p> <p>If the declarations of the insolvent are to have any weight, in deciding the question, Bass’s deposition shews that he made large advances or considerable shipments, on his account to the person, under whom the cotton is now claimed.</p>

<p>A sale, on credit of the goods of the maker of a note, does not discharge the indorser.</p>

The plaintiff had procured a writ of habeas corpora against his wife, for his two sons and daughter. About eight or nine years ago, he was under the necessity of visiting the internal provinces of Spain near Louisiana, and was imprisoned on an alledged breach of their laws; and several years elapsed before he could return to New- Orleans, his place of residence.

This was a suit against the indorser of a promissory note. The maker, at the time it was given, resided in New-Orleans, from whence the note bore date. Before it became due, he went to Europe, and on his return went to reside, with his wife's mother, in the county of the German Coast. The note, which was deposited in the bank for collection, was, on the last day of grace, handed to a notary, with a charge to be strict in making the protest.

<p>If the defendant pleads the general issue, and that the plaintiff is his debtor, he cannot shew that the plaintiff agreed to receive the debt and made no demand there.</p>

<p>Inhabitants of the territory of Orleans became citizens of Louisiana, and of the U. States, by the admission of the country as one of the U: States.</p>

The petition stated that the plaintiff and Chandler Lindsay gathered a quantity of tan bark, which they stacked and covered on the banks of the Tickfaw, and the petitioner contracted for the delivery of one hundred cords of it at ten dollars per cord, but the defendant violently and illegally took and carried away a considerable part of the said bark, and that the petitioner was apprehensive they would take the remainder.

<p>An act is full evidence as to every disposition of it, and as to whatever is therein expressed, by way of recital, when the recital has reference to the disposition.</p>

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

The defendant was sued as the endorser of a promissory note. 4 During the trial, Depeyster, the defendant's attorney, observed that one of the jurors had tried a suit brought by the plaintiff against another in-dorser of the note, and prayed he might be discharged; observing that the objection would prevail on a motion for a new trial, and it would save the time of the Court to make it now.

<p>A person of colour, living with the deceased, and allowing him to receive her negroes' hue without calling him to account, presumed to have allowed the hire as their expence.</p>

<p>This woman claimed the daily allowance of a witness, from the date of her recognizance, on the authority of M'Fall's Case, ante 171. It appeared she came from New-York, about nine or ten months ago, for the purpose of collecting some debts due to her. She was part of that time in Florida, returned to New-Orleans, where she kept a boarding-house for two months-afterwards she gave up the house, and engaged her passage on board of a vessel bound to the Havanah. She was deprived of the opportunity of sailing in her, by being recognised to attend this Court as a witness.</p>

A woman of colour was offered as a witness, by the attorney-general, and a gentleman swore that she was once a slave, but he had liberated her. She had a copy of the act of liberation; the original of which was in New-York. The Court will not look at the copy, while the original is admitted to exist.

<p>Vendor, whe has received part of his payment, may demand the whole thing sold, on returning it, or that it be sold to raise the balance.</p>

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

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

This case was now argued before the three judges. The defendants have the right to continue to drain the waters of the city through the canal Ca-rondelet, unless the plaintiffs furnish them another drain at their own expense. 1st. Because they are the owners of the spot on which the canal Carondelet is dug, or have at least the right to enjoy it, as making a part of the commons of the city. 2dly.

<p>The principal and surety may be sued jointly.</p>

<p>Appeal from the court of the first district.</p> <p>This suit is brought on a mortgage, by a notarial instrument, bearing date March 12, 1811,</p> <p>1. To secure the payment of a quantity of indigo sold and delivered by Dukeylus to Roussel, amounting to - $ 1268 13</p> <p>2. To secure Roussel against the indorsement of a note, dated March 2, 1811, for - - - - 2347 00</p> <p>3. As a like security for another indorsement on a note dated 6th of February, for - - - - 2200 00</p> <p>4. To secure him against such other indorsements, as he might give to Dukeylus, to the amount of 11000.</p> <p>The plaintiff’s object is to recover the amount of the following notes endorsed and taken up by him, after a regular protest, besides the three items aforesaid, which ——————— amount to - - - $ 5815 13</p> <p>Note of 23d February, 1811, 386 00</p> <p>— 1st March, - 1600 00</p> <p>— 15th do - 500 00</p> <p>— 20th April, - 1800 00</p> <p>— do. do. - 2000 00</p> <p>Total, $ 12101 13</p> <p>All these notes were produced at the trial, and the plaintiff’s right cannot he controverted: but it is said that the mortgage is void,</p> <p>I. As respects, the notes not enumerated in the mortgage, because a mortgage must be express. Civil Code, 452, art. 6. This article directs that the mortgage must be expressly stipulated and cannot be inferred. This relates to the stipulation, not the object of it. It does not say that the debt, intended to be secured, shall be particularly set forth, but that no act shall be taken as a mortgage, which is not clearly and unequivocally declared by the parties to be one. A mortgage is expressly defined to be a contract by which a person affects his property, or a part of it, to another, for the security of an engagement, id. 452, art. 1. By these general words, declaring that mortgages may be given as securities, not only for existing debts, but for every species of undertaking. To the same point is the Digest 13, 7, 9, § 1. Non tantum autem ob pecuniam, sed ob aliam causam pignus dare potest: veluti si quis pignus alieni dederit, UT PRO SE FIDEJUBEAT. Of which law, the Spanish commentator Rodriguez gives the following exposition. La prenda se puede dar, no solo en seguridad de la candidad que se debe, si no tambien por qualquiera otra especie de obligacion civil y natural, o so natural, civil o pretoria; asi como se dice que se puede dar fiador por qualquiera de las obligaciones expresadas.</p> <p>The mortgage, therefore, if valid in other views, is not rendered less so because the object was to secure against a debt, a responsibility that was not actually incurred. On peut contracter une hypotheque pour un dette qui n’est contractée que sous une condition. Pothier des Hypotheques, § 3. and he adds, on peut constituer une hypotheque pour une dette qui n’est pas contractée, mais qu’on contractera. But because this author subjoins that the mortgage, in that case, will not take effect until the debt is contracted, the defendant argues that, as all the notes fell due, and were paid by the plaintiff, after the insolvent’s bankruptcy, the mortgage could not attach, as the negroes mortgaged were then the property of the creditors. This would perhaps apply, if the mortgage had been to secure a sum of money, to be advanced, at a future period, and if the plaintiff was under no necessity to advance. The mortgage, is to secure against indorsements, which he was bound to furnish. The moment then he furnished the indorsements, the mortgage attached. All the indorsements were prior to the bankruptcy : the money it is true was paid after, but the obligation to pay accrued before.</p> <p>II. It is said that the $5815,13, specially set forth in the mortgage, cannot be secured there by.</p> <p>It is admitted that if, in the sale of the indigo, it had been stipulated that a mortgage should have been given, the security would have been good. Taking this as the true rule, let us see how the law and evidence stands. The sale of the indigo appears, by the testimony of Laignel, to have been made at the time the plaintiff was in town. He was in town, when he came to receive his mortgage, this is proved to have, been in the beginning of March, the mortgage is dated the 12th of March : it was, therefore given at the time of sale.</p> <p>But Laignel says a part of the indigo was paid for. If this be so, it does not prove that any part of the sum mentioned in the mortgage was paid. The quantity then mentioned is 1194 lbs. at 106, which makes $1268,13, the sum secured by the mortgage, for this object. So odious a fraud, as receiving the price and then inserting it in the mortgage, is not to be presumed on such slight evidence and sustained by a single witness, and an interested one, as he appears on the bilan as a creditor.</p> <p>That the mortgage for the price of the indigo was stipulated for in the sale, may also be gathered from the circumstance that, no note, account acknowledged or other security, except the mortgage, appears to have been taken for the price, which was sufficiently important to have otherwise required it. As to the two notes, mentioned in the mortgage, it by no means follows, because they were dated a few days before it, that they were endorsed on the days of their respective dates. An endorsement is a transfer of the note, and must necessarily have been made after it was drawn. How long after? Of that, there is no positive evidence ; but, on the other hand, there is no presumption that it was done on the day of the date of the notes. One of these bears date the second of March, but as Roussel was in town only a few days at the time he took the mortgage, it is most probable this note was endorsed during that period, and if so, at the time of the execution of the deed. The other is dated the 26th of February, a few days earlier, and appears from the history of it in the mortgage, and the evidence, to have been endorsed in the country : and as Roussel came down in a few days, and the mortgage was executed, it may thereby be inferred, that the security was promised, when the indorsement was asked for, and that Roussel came down to have it properly executed and registered by a notary. The residence of one of the parties in the country, of the other in the city, the want of notaries and legal advice in the country, and the short time that elapsed between the dates of the notes, if we should take them for our guide, and the giving of the security, shew that it was contemplated when the indorsement was given.</p> <p>But, if no agreement was made at the time of endorsing these two notes, that security should be given for them, is that security void? It is said to be, because the debtor was in failing circumstances. This rule is so extremely loose, that although I am aware that it has been sanctioned by this court, I presume I may be allowed to question it, and shew, first, the extreme inconvenience and injustice of establishing it; secondly, that the law of the land does not sanction it.</p> <p>Arguments ab inconvenienti, although in general bad against positive law, are daily used to shew that particular cases do not come within its spirit, and they are used with force, when the law is doubtful, which I think can be shewn here, even if I do not, as I hope establish positive law to the contrary. The rule, as contended for, is simply that any security given for a preexisting debt is void, if made when the party was in insolvent circumstances, that is, when unable to pay all his debts : thereby making the validity of a security to depend on a subsequent investigation of the debtor’s affairs, of which the creditor has no means to compel a disclosure. This must necessarily put a stop to mercantile credit, or so close it as to render it not worth having. No man will lend money, sell goods or endorse notes, without having his security, at the time he does the act, because, if this rule be established, he well knows that he cannot afterwards take a security, without incurring the risk of having it declared void, if the balance sheet of his debtor should at a future day be found to have been against him. All credit then, beyond the strict amount of its actual representative, in real property, will be destroyed, and one of the strongest nerves of commercial prosperity will be cut off. Thus, this will be one of the bad effects of the establishment of the rule on the general operations of commerce. Its particular application to each case will be attended with worse difficulties. Whether the debtor were solvent or not, at a particular period, is to be discovered by oral testimony, and will open a door to perjuries without number, and will put it in the power of the debt or to sacrifice his mortgage creditors to the mass and by a fraudulent arrangement of his accounts, and the concealment of part of his property, to invalidate the securities he had given. The difficulty alone, of fixing on the particular epoch of insolvency, must of itself be a strong objection to its being established, as a criterion for the validity of a security. Important and highly injurious consequences, on other questions, must necessarily follow from the establishment of this particular point. If a security be void for this implied fraud, then monies paid under it may be recovered. Thus, not to go out of the present case, it is proven, if the oral testimony can be relied on, that Dukeylus was insolvent two years ago, that one of his friends to whom he owed money, on receiving security, as well for the old debt as for his new engagements, made further advances or incurred other responsibilities, and was reimbursed out of the pledge he then received. All this, according to the doctrine contended for, might now be redemanded, and the person, who had settled his accounts two years since, might be forced to repay what he had received on the pledge, and come on with the other creditors for his dividend. Again, if the security given for an old debt, under failing circumstances, be fraudulent and void, would not a payment, made in like circumstances, be at least equally void, and a subject of repetition. What is the reason given for declaring the security void? Because it favours one creditor at the expence of the rest : but, if a security favours him, a payment certainly does so in a greater degree. Then a payment of one creditor, in preference to others, coming in the same reason with a security, ought at least to be equally void. If it be so, I pray the court to consider what endless confusion, what a series of claims, what eternity of suits, every failure will give rise to.</p> <p>The ordinance of Bilboa, ch. 17, b. 23, declares that the anticipated payment of a debt not yet due is void. Admit this—there was no debt due from Dukeylus to Roussel, on account of the indorsements ; nor was it certain that any would be due. But, from the moment Roussel indorsed Dukeylus’s notes, though Dukeylus did not owe him the amount of the note, yet he owed him an indemnity : and the very circumstance of Dukeylus’s credit being shaken at that time strengthens the argument. If I am surety for one who becomes insolvent, I have a right to ask for indemnity before the debt is due. Civ. Cod. 430, art. 18. So, if I draw a bill and the drawer is insolvent, I may be forced to give security, although the bill be not due. Therefore, in this case there was no anticipated performance of an engagement. The thing demanded and given was security: that security was already due, though the money was not due and it might be demanded of Roussel.</p> <p>The 5th Partida, 15, 9, is relied on : it declares payment to one debtor in preference to others, although the debtor be in failing circumstances, to be good, without making any distinction, whether the debt be due or not.</p> <p>The ordinance of Bilboa, ch. 17, b. 53, is said to be decisive on this point. Before we examine its tenor let us inquire into its authority. I know that part of it is often quoted, and that the decisions of our courts have been grounded on some of its provisions.</p> <p>It is no where extended to the colonies of Spain. It was made as a guide to the Prior and consulate of Bilbao, and by some subsequent edicts, extended to other commercial cities. It is cited by Spanish lawyers and judges of this country ; but that does not give it the force of law. If it forms the law of the land, the whole must be law. Yet, what will the court say to the provision which gives a prompt execution on a bill of exchange without a summon? To that which declares an endorsement on a bill of exchange or note void, unless it be filled up and dated, &c. &c. The court cannot divide a statute. They cannot say this part is convenient and shall be executed, the other shall be dispensed with. This would be assuming legislative authority.</p> <p>They may, indeed say “the provisions you refer to have never been practiced on, find therefore, we have right to suppose they are not laws: but the rule we have laid down has.” Even this would be conceding all I ask, and would be referring for the authority of the rule—not to positive law, but to practice. I should say my arguments of inconvenience have great weight, because they are not opposed by positive law. I should further ask, Where is the practice which is referred to? Where is the case, prior to the decision of the court, which establishes the principle—a principle, which has only practice or reason for its basis, cannot surely rest on the decision which for the first time establishes it.</p> <p>Let us now examine the provision of this ordinance. It is laid down very broadly, art. 53, that every instrument, made en tiempo inabil, at a time when the party is incompetent to make it, is void, and when it shall be presumed to have been made in fraud of creditors, is void : and it adds, as an example, when the party was about to fail, proximo a quebra, not when he was in insolvent circumstances, but about to break, that is in the language of English jurisprudence in contemplation of bankruptcy ;—having that in view, knowing that all must be given up, and intending to put one creditor on a better footing than the others, con fraude, dolo y malicia.</p> <p>The 5th Partida, 15, 7, which contains the only legitimate rule, as far as unaltered by subsequent statutes, because the Partidas were expressly extended to this country ; this law and the note 9 require three things to annul an instrument granted as this on an onerous title : fraud on the part of the debtor, knowledge of this in the creditor, and loss to the others. The commentator observes, that it does not suffice to shew that the party knew there were other creditors. This law also requires, in order to annul the instrument, that it should have been made after a judgment, with a view to avoid execution, and that it be of all the effects of the debtor.</p> <p>Now, if the ordinance of Bilbao be in force here, and it should be construed, as it seems to me it ought to, to refer to a contemplation of bankruptcy, then it cannot apply to us for ours, far from being an act in contemplation of bankruptcy, was an effort and a strong one to avoid it. It was a stipulation for farther advances, and as far as it purports to be a security for those already existing, these were of so recent a date, that without any violent presumption they might all be classed under the same head.</p> <p>The Curia Philippica illustrada, ch. 11, l. 2, no. 26, says, that every thing is suspicious that has passed a little before failure, and that by a royal law u all contracts, made six months before failure are void” to this effect the 5 Recop. de Cast. tit. 19, l. 7, is quoted. This royal law contains no such provision. It declares that no merchant shall have the benefit of the insolvent laws, unless he be actually in prison, and not then, if within six months he has borrowed any money, bought any goods on credit, or drawn any bill of exchange. It will be hardly contended that we ought to enforce this law in this country.</p> <p>The 5th Partida, 15, 7, is also relied on to shew that the alienation of all a debtor’s goods in fraud of his creditors is void. But this is no alienation, nor did it extend to all the property of the debtor, for even after all the depredations to which it was subject it sold for $18000. Neither was it an act in fraud of the creditors, for a valuable consideration was received, and thereby the stock of the debtor was increased or the number of his creditors lessened : neither was it after judgment or to avoid execution.</p> <p>The doctrine laid down by this court in Brown vs. Kenner & al. 3 Martin 270, does not militate against this case.</p> <p>1. Because the debts enumerated in the mortgage are not old debts, which the creditor had long been endeavouring to secure, but recent transactions sufficiently so to render it presumable to have been contemplated, as the creation of the debts, and the amount of which added to the mass of the estate.</p> <p>2. Because the indorser was entitled to demand security, as soon as the want of solidity in the drawer became evident.</p> <p>In order to avoid an inquiry into the circumstances of the debtor at the time he granted the security, many commercial nations have fixed a certain period, before the failure, as the limit beyond which no valid conveyance or security can be made. Our own legislature has not been unmindful.</p> <p>By the 17th section of the act of 1808, ch. 16, one of our insolvent laws, the debtor is excluded from the benefit of the act, “if it appears that he has, in contemplation of taking such benefit, at any time previous to his arrest, assigned or made over, any part of his estate or effects—or mortgaged his property or confessed judgment,—all such assignments (whether in trust or otherwise) mortgages or confessions of judgment, or giving an undue preference to any or more creditors, or exclusion of other creditors, are void to all intents and purposes.” But, it is provided “that if, the debtor at the time of executing such assignment, mortgage, confession of judgment, the debtor shall have received a bona fide consideration, such assignment, &c. shall be held and considered as good and valid.” If it be said that this act applies only to the case of an imprisoned debtor, I answer, that it never can be believed that the legislator may have intended to render the validity of a mortgage, dependent on the future conduct of the mortgagor, beyond the control of the mortgagee—valid, if the debtor went to jail—invalid, if he avoided imprisonment by a cession of his goods or by his escape. That the attention of the legislator was not confined to the case of imprisoned debtors, appears from the title “an act for the relief of insolvent debtors, in actual custody, for establishing prison bounds for the public jail, and for other purposes.” It contains general provisions not solely applicable to imprisoned debtors.</p> <p>The mortgage of 23 slaves, given by the defendants’ insolvent, bears date, March 12, 1811. Its object is to secure the payment of a quantity of indigo amounting to - - - $1268 13</p> <p>An endorsement on a note of</p> <p>March 2, at 60 days, for - 2347 00</p> <p>An endorsement of a note, said in the mortgage of the same date as the preceding one, and which really is, of the 26th of February, payable in June for 2200 00</p> <p>An obligation to furnish future endorsements for 11,000 00</p> <p>The plaintiff, by virtue of his mortgage, claims payment of the following sums, amounting to 10,833.</p> <p>1. A note of February 23, 1811, at four months, of - - - $386 00</p> <p>2. Another of the 23, payable in June, - - - - 2200 00</p> <p>3. Another of March 2, at 60 days 2347 00</p> <p>4. Another of the 10th payable in January 1812, - - 1600 00</p> <p>5. Another of the 15th at 60 days, 500 00</p> <p>6. Another of April 20, payable in August, - - - 1800 00</p> <p>7. Another of same day, payable in September. - - - 2000 00</p> <p>It is contended, that his is not an hypothecary claim. 1. That the mortgage does not cover any of the above claims. 2. That his mortgage is void.</p> <p>I. The conventional mortgage must be express. Civil Code 453, art. 6. It ought expressly to mention the debt or engagement for which it is given : unless it be stipulated for all the debts due to the creditor. The price of the indigo, and the notes of the 23d of February and 2d of March, alone are expressed : the total amount of these is $5825 13. The notes of the 23d of February and 10th of March, amounting to $1986, must be excluded.</p> <p>In vain will it be said that the note of the 10th of March ought to be covered by the mortgage, under the pretence that it was endorsed after its date, and that of the mortgage. Blank endorsements are prima facie taken to be on the day on which the note bears date : and the presumption is not rebutted by any evidence. Galez, the broker, swears he discounted the note before the mortgage was given.</p> <p>The debts mentioned in the mortgage, amounting to $5815 13, do not appear to have been contracted, under a stipulation that the creditor should be secured by mortgage; and if the debtor has secured him since, it was to the injury of his other creditors, as he was then in failing circumstances.</p> <p>A payment made by a debtor, whose bankruptcy is not declared, is valid, if the debt was payable ; but a payment by anticipation is liable to repetition however received bona fide by the creditor. 5 Partida, 15, 9. Ord. Bilb. ch. 17. l. 3.</p> <p>The ordinance does not distinguish whether the anticipated payment be in cash or otherwise, or between paying a debt not yet payable, or securing it, when no security was stipulated for when it was contracted ; neither of the notes mentioned in the mortgage on the day of the insolvent's failure, April 29, 1811.</p> <p>The claim for indigo, which we have neither the date nor time at which it became payable, is an evident fraud. Laignel swears Roussel told him it was paid, and the cash had been obtained for this purpose, by the discount of a note, at an exorbitant interest.</p> <p>As to the endorsements posterior to the mortgage, the mortgage cannot avail, for it was given suspicious period, and is therefore void. This applies also to anterior endorsement.</p> <p>II. From the beginning of March 1811, and before that time, it appears Dukeylus was in insolvent circumstances: this results from the testimony of Laignel, Leboucher, Petit, Blanchard and others. A mortgage granted on the 12th of that month, must be considered as of no avail. Ord. Bilb. ch. 67, l. 23 & 28.</p> <p>Dominguez, author of remarks on the Curia Philipica, on no. 26, lib. 2. ch. 11. of Commercio Terrestre, says "Every act is suspicious which is done a short time before the failure.” After stating several opinions as to what is considered a short time, he adds, but jure regio ‘the time fixed in order that every contract, transaction, &c. done in fraud of creditors may be holden to be void, is six months:’ he cites Recop. de Cast. lib. 5. tit. 19, l. 7. 1 Illustracion ala Curia, 333, no. 23.</p> <p>By the 5th Partida, tit. 5, l. 7, it is provided, that an alienation made by a debtor of all his goods, in fraud of his creditors, may be avoided within the year. Here, indeed, the insolvent has not bound all his estate, because personal estate is not susceptible of being mortgaged, but he has thus bound every thing he could bind, viz: twenty-three slaves, as appears by his schedule : a very strong circumstance, from which fraud may be inferred.</p> <p>In the case Brown vs. Kenner & al. 3 Martin, 274, this court took the distinction between an actual payment and a surety given for the debt. The plaintiff there was allowed $2000, which he had really paid, at the giving of the mortgage, but his claim for $4000 on account of what was then due. him, was rejected. Here, Roussel paid nothing when he took the mortgage. It was given him to secure former claims and endorsements, and to secure further endorsements which he did not bind himself to give.</p> <p>When, on the 15th of March and 20th of April, he endorsed these notes, he gave his signature, at a period when Dukeylus was a bankrupt, and known as such by the suits brought against him by Mad. Chabot and others, contrary to the solicitations of his wife, who told him Dukeylus was a broken man, and could not stand any longer.</p>

Suit for services as an attorney and counsellor at law. The plaintiff was on the insolvent's bilan, as a creditor of five hundred dollars for professional services. The jury allowed him that sum, and he claimed to receive it as a priviledged debt. Civil Code, 468, art. 72, s. 2.

<p>Disability of the plaintiff, not a fact to be tried upon a motion to discharge bail, but must be pleaded in abatement.</p>

<p>The defendant bad been held to bail upon the usual affidavit.</p> <p>A rule was now obtained to shew cause, why the proceedings in this cause should not be stayed, until the plaintiff, who resided out of the first superior court district, should give security for the costs, in case a verdict was rendered against him, or he was nonsuited.</p> <p>This case would admit of no doubt, if the plaintiff resided out of the territory. In the courts of Common Pleas, and of King's Bench, in England, whenever the nlaintiff is shewn to reside abroad, this order is always granted. 1 T. Rep. 267. 1 East Rep. 421. 2 Hen. Black. 384. 2 Vesey, 471. The reason of it is evident, inasmuch as thge plaintiff would not be within reach of the court, so as to have process served upon him for the costs. The same reason applies to the present plaintiff, who though an inhabitant of this territory, resides out of the district where the suit was instituted. By the act supplementary to an act, entitled, an act providing for the superior court going circuit, 1807, ch. 1, this territory is divided into five superior court districts, where the courts are respectively to be held; and these courts, though composed of the same judges, cannot be considered the same courts. Each has its separate clerk, and sheriff, to make out, certify and serve its processes. There is no intercommunity of jurisdiction. No process from one court can issue, except certified by its own clerk; or be executed, except by its own sheriff. In the present case, for instance, should the plaintiff fail in his suit, can a fi fa, for the costs, be executed by the sheriff, out of this district ? Would it not be necessary to commence a new suit, and obtain process in the district where the plaintiff resides? In an English court, a plaintiff in Ireland is considered so far abroad, as to oblige him to give security for costs, and for the reason here urged; because the process of the court would not reach him, in case an execution issued for the costs. 1 T. Rep. 362, Fitzgerald vs. Whit-snore. And if the process of the court will not reach a plaintiff, residing in a different district, ought we not to be entitled to the benefit of the same rule ?</p> <p>The application of the defendant is founded on a rule of the court, requiring non-residents of the state, to give security for costs. This rule cannot be extended to residents of the state, though residing out of the district. “ It was held by the court of King’s Bench in a “ variety of cases, and those of no very ancient “ date, that a plaintiff’s residence abroad, or in “ Scotland, was not a sufficient ground for staying “ the proceedings in the suit, ’till security was “ given for the costs, because such a practice it “ was said, might operate as a discouragement of “ trade and commerce, would be clogging the “ course of justice, and in a great measure pre- " elude foreigners from suing in our courts, as in “ a strange country they might, frequently, be “ unable to find security.” 2 Str. 1206. 1 Wils. 266. 2 Burr. 1026, 4 Burr. 2105. Cowp. 158. Hullock's law of costs, 442.</p> <p>Of late years this rule has been changed, asis proved by the authority in 1 T. R. 267 & 491. Nor is it the uniform rule of the court of Common Pleas. 1 H. B. 196. The practice of the court of Exchequer has always been uniform: no precedent, of such security having been required, is to be found in that court, Anstr. 359, Beckman vs. Legrange. 7 Bac. Abrid. 422. The rule itself, then, of requiring security for costs, is founded, I think, on questionable grounds; but to extend it so far as to say, that inhabitants, of the 5ame state should be bound to conform to it, would be highly oppressive to the poor, and a great hindrance to justice: a planter, for instance~ in the city of New-Orleans, from Washita, might find it difficult to obtain security for costs, in a suit which he might wish to bring against an inhabitant of the city. It would also be extending the rule beyond the spirit of the English decisions -a judgment against the plaintiff for costs, would always be a matter of record, on which the defendant might obtain an order of seizure from the court of the parish, or the superior court of the district, in which the plaintiff might reside.</p> <p>Ellery, in reply. There is no doubt but in England, both in the courts of King’s Bench and of Common Pleas, that security for costs was not always required, when the plaintiff was a foreigner or resided abroad; but, of late years, the practice in that respect, in both courts, has been changed; and now, not only foreigners and plaintiffs residing abroad, in both courts are obliged to furnish this security, but in the court of King’s Bench, this rule has been extended to a plaintiff residing in Ireland, who was quoad hoc considered as a foreigner. When this was so decided, in the case of Fitzgerald vs. Whitmore, it was then, as now urged, that such an extension of the rule was impolitic ; but the court decided that the same reason which induced it to lay down the rule with respect to foreigners, namely, that the process of the court could not reach them, in case an execution issued for costs, held equally with respect to Irishmen. And this same answer can now be given to the same objection, raised in the present case ; that a plaintiff residing out of the district, is quoad hoc a foreigner, whom the process of this court cannot reach. And if the rules and decisions of the courts in England are resorted to, should we not rather be influenced by their latest decisions and improved rules, than by obsolete cases and exploded practice!</p> <p>The argument ah inconvenienti has not much force. In the case supposed, the Wachita planter must have very little confidence in the goodness of his cause, or be very much limited in his funds or credit, if he should find a serious difficulty either to deposit the requisite sum, or furnish the necessary security for the payments of costs, should he be cast in the suit. On the other hand, the defendant, in this event, would be put to serious inconvenience in their recovery, He has, indeed, the remedy pointed out, though a circuitous one, that of an order of seizure; but this implies a new suit to be instituted by him in the district where the plaintiff resides. But is not this, in effect, making two suits out of one, and before different tribunals ? Again, where the act directs that defendants shall only be sued in the district where they reside, was it not intended that the whole suit should be there decided? Was it supposed, that a branch of it was to extend to the district of the plaintiff, and to be carried before the tribunal in that quarter ? Certainly, much less inconvenience will result from the adoption, than the rejection of this rule.</p>

Horse-stealing. The attorney-general offered viva voce evidence of what the prisoner had said, when brought before the magistrate previous to his commitment, relying on 2 Hawk. P. C. 304. It did not appear whether the magistrate bad committed the declarations of the prisoner to writing. The testimony cannot be received.

The plaintiffs, at New-York, had consigned to the defendant, at New-Orleans, seven pipes of Madeira wine, to be sold at a limited price, but the defendant, after keeping them a long time upon hand, without being able to procure this price, reshipped them, without other directions, to the plaintiffs, at New-York, who received them, under protest, and wrote him, that they had abandoned them, and, held them merely as his property and subject to his orders.

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

<p>Alien enemy not heard, on a motion to dissolve an injunction.</p>

<p>Priviledge on taxed costs only.</p>

The defendant was sued as the plaintiff's immediate endorser, on a note drawn by Delhomme, and dated German Coast, in favour of Trepag-nier, who endorsed the same to H. Dukeilus, a merchant of the city of New-Orleans. Dukeilus, by a memorandum at the bottom of the note, made it payable at his domicil in New-Orleans, and then endorsed It over to the defendant: this memorandum was made without the knowledge or consent of the maker, or payee, ofthe note.

<p>He who claims, the estate of a natural child must prove his acknowledgment, by the baptismal registry, or a declaration, before a notary and two witnesses.</p>

<p>ante 79.</p> <p>In sales of real property by the sheriff, on a credit, a deed of mortgage, signed by the vendee, is not necessary.</p>

TuE petition stated that the plaintiffs' father, a free black man, acted as overseer on the plantation of the defendants, since the year 1796, till his death in 181 1-that in 1801, the superior of the convent made a donation to him of two afpents of land fronting the river, with the usual depth, for his services; and in the year 1804, the supe-nor, and nuns entitled to a vote in the chapter, confirmed the donation-that he remained in possession of the premises till his…

The plaintiffs, as heirs of Margaret Cheval, brought the present suit for the recovery of a portion of her estate, alleged to be in the possession session of the defendant, the universal legatee of her husband. In the year 1750, Duval and Margaret Cheval intermarried, and by their marriage contract, made mutual donations, stipulating that the survivor should inherit all the estate of the other. This donation was recorded in 1768.

<p>Appeal. The petition below contained inter-regatories, which the defendant had answered on oath. A motion was now madeon the part of-the plaintiff that the petition might be amended by striking out the said interrogatories and answers.</p> <p>A party who administers interrogatories to his adversary, is not obliged to use them: he may, if he is able to proceed without them, lay th aside. "The party," says the Civil Code, 316, art. 264. "wishing to "avail himself of the avowals made by the ad"verse party, in his, answer to the interogatories "on facts and articles, must not divide them, but "must take them entire." It follows that the party not wishing to avail himself of them, need not take them.</p> <p>was stopped</p>

Habeas Corpus. The defendant was originally committed for forgety and swindling, and an escape. The offence being alledged tq have been committed in the part of the territory of Orlean& lately taken possession of by the United States, a rule of court was obtained for his transmission, to St. Francisville.

Habeas corpus. The gaoler produced, as the cause of his detention, a warrant from a parish judge, stating that ftom depositions before him, there was string suspucion that the prisoner was concerned in an insurrection of the slaves. com-rnmanding an officer to arrest him apd convey him to jail, and the gaoler to receive and keep him. till he was discharged in clue course of law.

<p>Attorney and counsel-lor cannot recover against his client, on a special contract.</p> <p>Bargain or no purchase no pay, or for part of the thing sued, iniquisous.</p>

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

<p>ante 209.</p> <p>If there be a prayer for general relief, damages may be given beyond a specific sum prayed, if the petition shews that they are due.</p>

<p>After a cession, the debtor, who does not obtain a release, is not suable till the property ceded be liquidated.</p>

<p>Amendment will be allowed, when the issue is not thereby changed.</p>

This case had been left, by consent, under a rule of court, to five merchants, agreed upon by the counsel, whose report was to be made the judgment of the court. They reported a round sum of $ 2,941 80 in favor of the plaintiff, without stating any account, or specifying any particulars.

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

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

<p>The liability of a carrier does not begin till the goods are delivered him.</p>

<p>Ante. Vol. I. 129.</p> <p>P. Dorme-non restored to his seat at the bar.</p>

<p>Ante. 183.</p> <p>Party may demur to evidence. Plaintiff may discontinue after demurrer to evidence.</p>

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

<p>A memorandum at the foot of the note, shewing a new domicil, does not avoid the note.</p> <p>Payment by an indorser, discharges the maker.</p> <p>Costs alone never given by the jury.</p>

<p>A judgment rendered in Baton Rouge, before the cession is not a foreign judgment.</p> <p>A judgment is sufficiently certain, when the amount recovered clearly appears from the documents.</p>

<p>An order quashing an execution is appealable from.</p>

Upon the trial of this cause, the court divided in opinion, ante 77, and no judgment was rendered; and now the counsel for the plaintiff moved to discontinue. The division of the court in this case, amounts, in effect, to a judgment against the plaintiff. He has not gained, neither can he gain, any thing from the trial.

<p>A statement of facts may consist of the detail of the evidence.</p> <p>Altho’ the supreme court think the inferior court ought to have charged the jury, as the appellant prayed, or granted him a new trial if the whole facts are before them, they will not remind the case.</p>

This suit was brought to recover the amount of a check of the defendant, which had been refused at the bank.

The is was a suit aaainst the endorser of a note. A new trial had been granted, the jury having given a verdict contrary to law and the opinion of the court: the note was prqduced with a blank endorsement. A blank indorse ment does not pass the property of the note. The Ordinance of Bilbao requires that every in-dorsement should be filled up with the name of the indorser-it should mention in what the value of a note was received, and have a date.

<p>If an insolvent debtor’s year's residence expires, after he has been confined thirty days, and he applies for the benefit of the law, within thirty days after the expiration of the year, he cannot be relieved.</p>

This suit was brought on the following due bill, viz: “Due H. Turner, or order $412 18, value received, and for which payment I have given him my order on Canada Cason, at Farrar's gin, for 3435 lbs. baled cotton, which if paid is in full, if not, then this is valid. Nov. 11, 1809. S. Rabb.

Judgment being had against the maker of the note, execution issued and levied, and property sold on a credit, which was not yet expired, the defendant, endorser of the note, paid into court the costs of the suit, and prayed that execution might be stayed, till it appeared that the property seized was insufficient to satisfy the judgment.

<p>This suit was brought upon two bonds; one hearing date in 1796, afid the other in 1800, and both signed jointly and severally by the defendant, and two others; in the city of Philadelphia. To this demand, the defendant put in a plea of discussion, wherein he alledged that he had signed these two bonds, not as a principal, but as a co-surety with his brother; and that the principal resided in the same city with the obligee, and had sufficient property therein to satisfy their amount; and that his property ought to be previously discussed, before reendurse could be had upon the sureties. To substantiate these allegations, the defendant obtained two commissions, for the examination of witnesses in the state of Pennsylvania; but these not being returned within the prescribed term, the plaintiff proceeded to trial and obtained judgment, without argument, on the last day of the last term; the counsel for the defendant, on account of the absence of their testimony, having declined arguing the cause. During the vacation, both of the commissions were returned executed; and upon the opening of the present term, the defendant obtained leave to enter a motion for a new trial. In the argument of this motion, the Court doubted whether, in case of a rehearing, the testimony produced by these commissions (being parole) could be received? Or, if received, whether the laws of this state could be permitted so far to prevail, as to enable the defendant to support his plea ?-and directed the attention of tire counsel to these points. And now,</p> <p>The points raised by the court, for consideration, are :</p> <p>1. Whether, in this case, parole testimony can be admitted, to shew who is principal, and who surety, upon these bonds ?</p> <p>2. How far the laws of this state will be permitted to control those of the state where the bonds were executed ?</p> <p>IF we succeed upon the first point, we shall render applicable the testimony produced by our cçmmissions; and if we shew, upon the second, that the laws of this forum are so far to prevail in this suit, as to maintain the defendant's plea of discussion, the court will then be satisfied that we pave a meritoriotis defence, and we rust will permit us to avail ourselves of it, upon a rehearing. In this event, we shall be able to take the benefit of our own laws, which protect a surety from being prosecuted, until a prior discussion had of the property of the principal; unless the plea of discussion be expressig renounced by the surety, or the renunciation thereof legally implied from the instrument itself. Civil Code, 428.</p> <p>1. The authorities on the subjectof the ad. inissibility of parole testimony, to explain or contradict a deed, are numerous, but contradictory the general rule undoubtedly is, that it cannot be reeived; but the exceptions to this rule are numerous, and we think the present case comes within them. Relief will always be grauted against deeds, upon the ground of fraud, trust, mistake, oppression, or imposition; in all which cases, the fact, which is the ground of relief, is permitted to be established by parole testimony. Ross vs. Nor-vell. 1 Wash. Rep. 16. In this case, there had been an absolute bill ofsale of certain slaves, with a warranty and a receipt for the consideration indorsed; yet, upon the suggestion that the conveyance, though absolute in form, was intended as a mere security, the defendant was suffered to shew this fact by parole testimony; and upon so shewing it, permitted to redeem. In the case of Washburn vs. Merrils, 1 Day. Ca. 139, the court admtted a witness, to prove that a deed, executed as an absolute deed, was intended to have been executed as a mortgage deed; and the court, upon this being thus proven, decreed a redemption of the land so conveyed. In the case of Nicholas's Ex'rs. vs. Tyler, 1 Hen. & Mum. Rep. 332, the defendant was allowed to prove, by circumstantial evidence, that the debt, for which a bond had been given, was originally payable in specie; and therefore the bond, though given in paper money times, not sublect to the scale of depreciation. And in the same reporter, p. 429, the evidence of circumstances was admitted to set aside a contract under seal. So, in the state of New-York, a defendant was permitted to introduce a witness, to prove that the plaintiff after the execution of a special agreement, agreect to enlarge the term of performing the stipulations contained in it. 1 John. Ca. 22, 3 John. 528, 2 Call. 5, 125. Also, in Pennsylvania, the obligor of a bond had leave to give the special matter in evidence, and prove, by a witness, that the bond was void. 2 Dall. 171. Vide, also, 1 Dall. 17, 493, 424, 3 Dall. 506</p> <p>In our own court, the case of Mann & Bernard vs. Heirs of Houghton, is analogous to the present. Here, there had been an absolute conveyance of a plantation and negroes, by a notarial act, in favor of Houghton; yet the court permitted witnesses to prove that he acted as the agent of the plaintiffs' in the purchase, and that in reality the purchase was made for them, and with their funds; and that, therefore, Houghton was only their trustee.</p> <p>It may be objected, that the digest of the civil code excludes the use of testimonial proof in the explanation of written contracts made within the confined, perhaps, to contracts made within the state, and not to extend to those executed abroad. But, at all adventures, we see in the last case cited, that this principle has not always been held scared. In that case, there was a nothrial act of sale in favor of Houghton, which, like a bond at common law, imports absolute verity; but nevertheless, from the allegations contained in the bill, though no fraud was charged, it was suffered to be ex plained by testimonial proof. And however solemn may be the act, or however sacred its import; or in whatever country, or under whatever forms, it may be executed-the Court, upon proper charges and suggestions raised, will suffer it to be enquired into, and its real character ascer-tamed.</p> <p>In the present case, it will not be denied, but that we have, in our plea, alledged sufficient matter and shewn sufficient grounds, to entitle us to relief against these bonds. A stronger case but seldom meets the court; the facts, which constitute the ground of relief prayed, are distinctly stated; and all the circumstances of the transaction, are mute, though powerful, witnesses in our favor.</p> <p>2. On the second point-how far the laws of this state will control those of the state where the bonds were executed-we think we shall be able to shew, that they will, at least, so far prevail, as to maintain the plea of discussion we have filed.</p> <p>It is a principle of general law, that the laws of every country are obligatory upon all those within its limits, either subjects or aliens; the latter, during residence, being considered quoad hoc subjects. This principle originally went to the total exclusion of all foreign laws in every case; but, by the courtesy of nations, a relaxation and modification of its was produced, arising from mutual convenience, founded in general utility, and recognised by tacit consent. And now, upon a principle of comity between states and nations, personal contracts, entered into and to be performed in one country, are to be considered and carried into effect, as valid in any other, though a different law there prevail; of course, they are to be construed according to the laws of the country, where the contracts are made, and not according to those, where they are sought to be carried into effect. But as the law of a foreign country is of no force proprio vigore, but merely admitted by courtesy, this courtesy will not be so far extended as to produce any inconvenience to the state or its subjects, thus admitting it. For this reason, it has dbeen decided that, in the enforcement of contracts, the lex fan, and not the lex loci, always prevails; and that whoever becomes a suitor in a court, must take the laws of the forum he has elected, and pursue his remedy according to its forms as it would operate a serious inconvenience, to change in his favor the course of judicial prcceedings. As it respects the interpretatian of contracts the lex loci is supposed to furnish the rule of construction ; still subject, however, to the above exception, that no inconvenience result therefrom to the state or its citizens, where the contract is sought to be enforced. In either case, however, we think we are safe; if the laws of this forum, which, according to the authorities we shall produce, apply exclusively to the enforcement of the payment of these bonds, will not be so far extended, as to admit our plea of discussion; yet, if its rejection shall be shewn to pro-dude an injury to our citizens, in the person of an~ one of them, it will still, on that ground, be entertained by the court; even if the validity of the contract itself be thereby affected. We think, however, according to late decisions, that the lex fori in the enforcement of a cOntract made in a different state, has been carried to a sufficient length to embrace our case; and even, in some instances, so far as to encroach upon the validity of the contract itself. In our case, however, it will be recollected, that we do not seek to invali- dote these bonds, nor to exonerate ourselves from our engagements; but merely to prevent the engagements of a principal from being enforced against a surety.</p> <p>Let us first see, how for the lex fori has controlled the lex loci inb the enforcement of contracts, made in a different state.</p> <p>In the case of Smith vs. Spinolla, the defendant, a Poruguese, was held to bail in New-York, on a contract made in Madeira, where, by the laws of Portugal his property was only liable, and his person secure from arrest; the court would not, however, discharge him upon entering a common appearance, on order an exoneretur to be entered upon the bail piece; and determined that the lex loci applied only to the interpretation of contracts, and that the remedy on them must be prosecuted according to the laws of the country, in which the suit was brought. 2 John. Rep. 200.</p> <p>In the case of Ruggles vs. Keeler, before the same tribunal, the court also determined, that the lex loci applied only to the validity or interpretation of the contract, and not to the time, mode, or extent of the remedy; it also decided, that in actions upon foreign contracts, it would confine itself to its statute of limitations, without regarding that of the state, where the contract was made. 3 John. Rep. 268.</p> <p>The same principle was also established, in the case of Nash vs. Turper, in which the statute of limitations of the state of New-York, was held as a good plea, though the period of limitation in the state of Connecticut, where the cause of action arose, is seventeen years, while that of the state of New-York, where the contract was put in suit, is but six years. 1 New-York T. R. 412.</p> <p>In the case of Pearsall & al. vs. Dwight & al. it was decided, that the statute of limitations in the state of New-York aws not pleadable in bar to an action brought in the state of Massachusettes, upon a promissory note, made in the state of New-York. 2 Mass. Rep. 84.</p> <p>We find also the same principle laid down by Huberus, and the lex fori still further made to control the lex loci, in the case supposed of a third possessor of an hypothecated moveable, and in that of an unpublished contract of marriage. Hub. prae. 2 vol. 1 b. 3 tit. De conjictu legum.</p> <p>In cases, where the statutes of limitation are pleaded, as well as in those put by Huberus, it would appear that the lex fori was suttered to affect more than the mere form of the demand, and to extend ad contractus valorem et ad litis decisionem. A plea of limitation, by offering a perpetual bar to the action, and totally destroying thd remedy, would seem to invoive in it the merits. The laws of the forum, which prevent my ever recovering ademand, virtually, at least, hwa-lidate the contract, upon which it is grounded. And this applies still more strongly to the case put in Huberus, where a private contract of matrimony, without notice, made in Holland, protects the wife there from the debts of her husband, and yet will not yield her that protection in a suit brought against her in Friezeland, where the law requires a previous publication of the contract.</p> <p>Be this, however, as it may, the authorities cited bear us out, and shew, that the laws of the forum apply to the time and manner of bringing the action, and to the whole form and extent of the remedy. Compare, then, our plea of discussion, to that of limitation, which has been ruled, to relate only to the remedy pursued; the court there, would decide, according to the authorities pro. duced, that the plaintiff, by suffering the prescribed period to elapse, was too late in forming his demand; here, we say, that the plaintiff, by omiting to bring a previous suit against the principal, is too early in forming his demand. And if the prescription of our own forum is to be pleaded in `bar to the recovery of a debt, without regarding the act of limitation of the state, where the cause of action grew; why may we not equally have recourse to them, in order to defeat a demand, which, though seasonable in the state where the contract was made, is. here prematurely brought? Upon what ground, isa plea of prescription, ac- cording to our laws, in the one case, to be sustained; and a plea of discussion, according to our laws, in the other, to be rejected? Do they not both equally regard the time of bringing the suit? With this difference, however, that the reason is much stronger, and the situation of the plaintiff much less hard, in a case of suretiship, than in that of prescription; inasmuch, as in the latter case, an elapsed period of time can never be recalled; but, in the former, an omitted act may still be performed: in the one case, the bar to the action is perpetual; in the other, but temporary; in the one, the remedy is totally lost; in the other, but only delayed. How would it be, in the case of a promissory note, executed abroad, where three days of grace are given, but prosecuted here, where, we will suppose (as was formerly the ease) a longer period is allowed; and this before the full term of grace here was expired; could the plaintiff safely rely upon the law in his own state, which curtailed this period? Is a contract, because made abroad, to give a plaintiff here a priority in his demand, not accorded to our own suitors? Is the defendant here, in such a demand to be placed upon a worse footing, thah his fellow citizens? The present defendant, as a surety of a bond, by onr laws, can only be legally upon for payment in the default of his principal-and shall any foreign law deprive him of this protection,or divest him of this right? Does not this fall within the restriction upon the introduction of foreign laws, so often repeated by Huberus; vii. that the effects of a contract, entered into at any phee, will be allowed, according to the laws of that place, in other countries, if no inconvenience result therefrom, to the citizens of that other country, with respect to the law, which they demand. And his application and illustration of this restriction, goes much beyond the present case. He states, as an example, that by the law in Frieze-land, the oldest hypothecation of a moveable, is that to be preferrel, even against the third possessor; yet, if the article so hvpothecated, be sued for against the third possessor in Batavia, the suit would be rejected, because the law of that province protests the right of a third person so acquired; and that this right cannot be divested by the law of another country. Ought not our law equally to protect the right of a surety? And is pot the inconvenience as great ut the one case, as in the other?</p> <p>Whether the defendant has, or has not, by executing these bonds jointly and severally, tacitly renounced the benefit of discussion, does not come within the scope of the present argument. By signing an instrument in solido, in this country, he impliedly waves it; but these bonds are neither in solido, nor in this country. Neither are we now to inquire, whether the property of the principal, pointed out by the defendant for discussion, ought or ought not to lie within this state these questions do not fall within the points raised by the court for consideration, and can be best urged, should a rehearing be granted.</p> <p>This motion for a new trial, is grounded on an affidavit, setting forth the arrival of certain depositions taken under two commissions, issued before and returned since the trial of the cause. The object is to have the benefit of these depositions, as evidence, on another trial.</p> <p>no respect is the law better settled, than in relation to the cases in which new trials can be had, in order to let in further evidence. The evidence must be notonly sworn to be material, but such as the party, desiring to avail himself of it, had not previously discovered, and could not by-the exertion of reasonable diligence, have discovered and produced or the trial. It is, perhaps, needless to cite authority on this point-but see 1 Will. 98, 2 Bay. 268, 2 Binney, 482.</p> <p>It would be no difficult task to shew that the motion of the defendant, in every point of view in which it can be regarded, is equally unreasonable and unfounded in law.</p> <p>Suffice it to say, that the defendant, after his interrogatories had been answered by the plaintiff under oath, was indulged with leave to take out commissions to Pennsylvania, returnable at the end of four months, to obtain evidence of facts, of which, and of the place where they might be proved, it appears he was not ignorant at the time of filing his interrogatories, when, if at any time, he ought to have issued his commissions. And that, after the expiration of that delay, instead of being brought to trial at the commencement of the last term, he was again, by a great indulgence, al. lowed further time for the production of his depositions, until near the close of the term, when, not having eventured to apply for a further continuance, the cause was tried and judgment rendered. Shall he now set aside a judgment, for that, which could not have obtained a postponement of the trial which resulted in that judgment?</p> <p>It will be very needless now to examine the extent to which the testimony of witnesses, has sometimes been suffered to be introduced, to explain, modify, or destroy a deed. It is not denied by the defendant's counsel, to be the general rule, that parole evidence is inadmissible for such a purpose; but it is contended that, in cases of fraud, trust, mistake, imposition, or oppression, as exceptions to the general rule, the fact sought to be established may be proved by witnesses, even against a deed. The reasonableness of the cases, generally, that have been cited on this point, is not denied-but, their pertinency is less obvious. Whether there be any thing, in this case, of fraud, or trust, or mistake, or imposition, or oppression, is freely submitted to the scrutiny of the court, even on the evidence of these depositions, and with it, the fate of the cause.</p> <p>With regard to the extent of the influence of the lex loci, where a contract is made, when it becomes the subject of a suit in another country-it would be hardly necessary to examine her; even if the principles on that subject were less clearly established. For, admitting for the sake of argument, what is expressly contradicted by the plaintiff's answers under oath to the defendant's interrogatories, and what is not established evert by the depositions sought to be introduced-that the defendant, though appearing on the face of those bonds as a principal, was in reality a security, his position would not seem to be in the least improved. And admitting, further, that the laws of Pennsylvania could be laid out of view in the decision of this cause, the court would at least regulate itself by principles, applicable to such contracts, known to the civil law, as are most anala-gous to those in question. The surety in an obligation in solido of the civil law, is equally subject, with the principal, to the immediate paymentof the whole debt. And even when the surety is not bound in solido ; the creditor may still resort immediately to him for the amount of the debt, and cannot be obliged to a previous recurrence to the principal, unless the surety point out to the creditor, pro perty of the principal, within the state, to he pursued; and also furnish a sufficient sum of money, to enable the creditor to conduct the suit. Civil Code, 430.</p> <p>The application attempted to be made by the defendant's counsel, of the authorities concerning the influence of the lex loci, where a contract was made, when a suit is instituted on it in another country-seems to confound what should always be kept clearly distinguished-that, which belongs to the essence of the contract, and that which is merely accidental to it. All the cases, that have been cited by the defendant's counsel on this point, are admitted to be sound law, and are relied upon by the plaintiff. They uniformly establish, as a general rule, that when a suit is instituted in one country, upon a contract made in another, the lex loci must furnish the rule of decision in whatever concerns the validity, the interpretation, the essence of the contract; but that, is to what is merely accidental to it-the reason ceasing, the law also ceases-the time, the form, and manner of instituting and prosecuting suits-the process allowed, whether arrest of person, attachment of property, or mere citation-the pleadings, the judgment, and execution-and the time after which a suit shall no longer be instituted, i. e. be subject to prescription, or a statute of limitations-are regulated by the laws of the country where the suit is brought.</p> <p>Is the liability of the defendant to pay absolutely a certain sum of money in a certain time-or only upon remote contingency-a question of substance, or of form?</p>

<p>If the testator extends the time for settling his estate, beyond the year, if necessary, and the executor does not begin a suit till thirteen years after, the delay will not be justified by the extension of the time.</p>

<p>A married woman has a privilege for her dotal property only.</p>

<p>No appeal lies from the order of a court of probates, granting three months to the curator of a vacant estate to account, and directing that on his failure, his bond be put in suit.</p>

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

<p>Although the party introduces a will emancipating her, she may give parol evidence of her being born, reputed, and acknowledged free.—</p> <p>The code noir of Louis XV, was for a short time only in force in Louisiana.</p>

<p>An appeal lies from a court of probates to the district court, and from thence to the supreme court, on the appointment of a curator to a vacant estate.</p> <p>In such a case the court of probates ought to permit the opposite party to shew that the applicant is not domiciliated in the state and possesses no property in it—that the other claimant was an old friend of the deceased, &c. is a larger creditor, and a person of property and standing.</p> <p>The district court ought to try the case de novo.</p>

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

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

<p>A negro will be presumed free, tho' purchased as a slave, if the purchase was made in a country in which slavery is not tolerated, unless it be shewn that he was before in one, in which it is.</p>

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

<p>The purchaser of land, under execution, cannot claim back the money paid and require the delivery of his obligation for the balance, paying the money into court, on the ground that there were anterior incumbrances.</p>

<p>Privileged creditors are to vote for syndics.</p>

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

<p>An absent person, in whose favour a stipulation is made, may avail himself of it.</p> <p>A partner entering into a contract, in the name of the firm, cannot be admitted to say that he was not authorised to make it.</p>

<p>When the homologation of the proceedings of a meeting of the creditors of a bankrupt has passed in rem judicatam they cannot be objected to, on the ground that they are recorded in the French language.</p>

<p>A person appointed, as an expert, to verify a signature, must decide on comparison of handwriting, & cannot receive and act upon information of the circumstances of the case.</p>

<p>The estate of a deceased, in the hands of his widow & heirs is bound by a judgment obtained against his administrator.</p>

<p>The sentence of a foreign court of admiralty is conclusive as to the national character of the ship.</p>

<p>A judgment referring to no law, & in which no reason is adduced, is null.</p>

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

<p>A marriage, celebrated in North Carolina may be proved by parol evidence.</p> <p>A witness testifying against his interest is not be rejected.</p> <p>Parol evidence ought not to be admitted to destroy a title to real property.</p>

<p>The tacit lien of a builder is not lost, by his neglect to record the contract for the building.</p>

<p>Esteve vs. Rocho.</p> <p>Appeal from the court of the parish of the city of New-Orleans.</p>

<p>If experts appointed to verify a signature disagree, and a third be appointed on the motion of a party, he cannot assign this an error.</p>

The affidavit on which a continuance was prayed by the defendants shews that they could not safely come to trial, on account of the absence of a record, which was material to their defence, and which notwithstanding every effort in their power, had been used, they had not been able to procure. Injustice was therefore done them, and the only remedy, which the law has provided for them, is the interposition of this court, in ordering a new trial.

<p>A sale of land, by a husband to his wife, to replace the value of real estate part of her paraphernal property, by aim sold, is valid.</p>

<p>The party, to whom a new trial is improperly denied, may be relieved in the supreme court.</p>

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

The plaintiff and appellant brought this action against the master and owners of the steam boat Vesuvius, to recover the value of goods by him shipped on board of her, to be safely carried from New-Orleans to Natchez, which he alleged to have been lost and destroyed, by the negligence and improper conduct of the defendants.

<p>Tho' the appellant have no good ground to relief, if he appears to have been under an error, damages will not accompany the affirmance of the judgment.</p>

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

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

<p>The record of a former suit, between the parties, is evidence, altho' it was dismissed.</p>

<p>A ceding debtor, who has not obtained his discharge, is liable to a simple contract creditor, when it is clear that the privileg'd debts absorb all the ceded property—although the affairs of the estate of the state be yet unliquidated.</p> <p>If part of the property ceded be lost by the misconduct of the syndics, the debtor is entitled a proportionate allowance from each creditor.</p>

<p>If a document be in the hands of a person, whose interest it is to conceal it, he needs not be summoned to produce it, and evidence of its contents will be received.</p> <p>An authority to sell a slave must be written.</p>

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

<p>A deed of emancipation of a slave, under the age of 30, is void</p> <p>When the person, who claims the defendant, as a slave has proven her slavery, she cannot contest his title.</p>

<p>The owner of goods shipped, in New-York for New-Orleans, on deck, is not entitled to contribution, in case of jettison, at sea.</p>

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

<p>In this case, the judgment of the parish court was affirmed, at May term last: but on the application of the plaintiff and appellant a rehearing was granted.</p> <p>The court seem to think that the estate, brought by the wife in this case, was not dotal, on account of the expression in the contract, les futurs époux déclarent n’avoir quant a présent rien a se constituer. This expression will however, I believe, be found on examination to relate chiefly, if not solely, to the husband, from what follows in the same sentence, as the reason for the declaration, viz. le futur époux, ainsi que le citoyen Rion son père, ne jouissant d’aucun revenu: without saying any thing of the future wife’s want of funds. Then immediately follows a power from her to her husband, to collect the sums that might be due to her, giving him full powers to receive the money and sell her estate, to compound, &c. &c. sans ètre tenu d’en faire emploi, ni donner caution; she contenting herself, de sa solvabilité et de la reconnaissance que le citogen futur époux sera tenu de lui faire, des domines qu il recevra de son chef, sur tous ses biens présents et avenir, sur lesquels, a raison de ce, la citoyenne future épouse aura hypothéque a compter de ce jour.—These dispositions clearly shew that from the moment of the marriage, the husband was invested with the power to recover all the monies due to the wife, and to make use of the same, without investing them for her benefit, sans etre tenu d’en faire emploi ni de donner caution, and without being liable to give any other security than the receipt: la reconnaissance que le citoyen futur époux sera tenu de donner.</p> <p>This whole transaction then brings the estate of the wife precisely within the definition of the word dot; a sum of money brought by the wife into marriage, and paid to the husband, to support the matrimonial charges, for which his estate is liable after the dissolution of the marriage—quand meme (according to the authority cited by the court) la constitution ne serait pas expresse, qu’on n’aurait employé ni le terme de constitution, ni celui de dot. It is necessary, however, says the same authority, that there should be a contract, from which it may evidently appear that a dot has been paid or promised: whatever may be the terms of such contract. Here there is a contract! And from this contract, it evidently appears that the wife’s estate was to be paid to the husband in a manner, and for purposes not essentially different from a dot; and that he did actually receive and use it for such purposes. If the sums due, to Mrs. Rion, were not paraphernal: they must be dotal. But they were clearly not paraphernal: the essence of that kind of property is that the wife may have the exclusive management of it; but here by her contract she could not do this: suppose she had called on her husband, as soon as he had received it, to invest it for her use, he could reply that she was precluded by the contract, that he was impowered to receive it, sans etre tenu d’enfaire aucun emploi, that she could not even ask security, and she had bound herself to be content with his simple reconnaissance.</p> <p>The law, then, expressly discarding forms here, not requiring the technical words dot or constitution to be used, but looking only to the substance, there would be a constitution of dot, even if the word had not been used; but it is found in the contract. In the last page we find a covenant that if the husband dies first, the wife shall enjoy the estate and receive the profits, jusqu’a ce qu’elle soit entierement remplie de ses droits dotaux et conventions matrimoniales, Here then is a clear expression of the intent of the parties, even if it were doubtful before.</p> <p>In support of the plaintiff's case, permit me to add that there is good authority for the position, that according to the custom of Bordeaux, all the wife's property is dotal. Bien que par la coutume toas les biens de la femme soient censes dotaux. Same point, coutume de deaux 242. Dic. de jurisp. verbo dot. Il est de meme des biens paraphernaux que d’autres biens. Coutume de Bordeaux, 203. This point perhaps might be illustrated by further authorities.</p> <p>Another question that may arise, and one of importance is this, whether the wife is obliged to look to the real estate of her husband, which was mortgaged for her rights, when he has alienated it; when there is personal property belonging to his estate, on which there is no particular privilege, sufficient to pay her—one reason for this doubt arises from an authority in the coutume de Bordeaux, 202. Where it is said the wife must first discuss the estate of the husband, before she can recur to the real estate in the hands of a purchaser. Now to what purpose this discussion, unless she could be paid out of the estate?</p> <p>The plaintiff claims the privilege of receiving the amount of her claim, in preference to the mass of her husband’s creditors: she must therefore be held to a strict proof of the fact upon which this preference is to be obtained—it does not suffice to shew the probable existence of the fact, that there was a dot constituted.</p> <p>In our humble opinion, the marriage contract shews, that there was no constitution of dot before marriage, and nothing shews that any was constituted afterwards. The parties expressly declare, that for the present they are without any property to be constituted as a dot. The reason as to the husband is alleged, because neither he nor his father have any revenue. It is true the contract is silent as to the reasons which induce the wife not to constitute any dot to herself. It is, however, clear that none was then constituted.</p> <p>The plaintiff’s counsel, however, contends that as the husband was authorised to collect the monies due to the wife, without giving any security, and without being compelled to lay out the money, in the purchase of a real estate, he was authorised to make use of the same, and therefore the said debts constituted a dot.</p> <p>The dot does not include all the property of the wife; but only such as is constituted in dot, in the marriage contract, or during the marriage: the rest is paraphernal or adventitious. The circumstance of the wife suffering this kind of property to be collected and managed by the husband does not alter its nature: and the right which she has to demand an account of it, and afterwards to receive the proceeds, differs widely from the right which the law gives her for the recovery of dotal property.</p> <p>The circumstance of the husband being authorised to collect the wife’s debts, and his exemption from any obligation to give surety, or invest the proceeds in real property, does not at all raise a presumption of any intention of the parties to make it dotal. Had such an intention existed, it would have been easy to make the constitution: for property in action may make part of a dot constituted. But the contract expressly says, that this property in action was not for the present to be constituted as a dot. Nothing shews that any posterior act has made it so.</p>

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

<p>It appearing that the wife brought land to her husband, the judgment will not be reversed, because parol evidence was received to shew that it was brought in marriage. It being hers whether she brought it so or otherwise</p>

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

<p>An appeal lies from the discharge of a garnishee from his bond</p> <p>The condition of a garnishee's bond is complied with by his appearance and answer to interrogatories.</p>

<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>The original notarial act cannot be rejected when offered, in evidence, on the ground that the keeper of it ought not to have parted therewith.</p>

<p>Appeal from the court of the first district.</p> <p>The plaintiff, as consignee of certain goods, brought the present action, to recover damages, for injury done to them, by the ill management of the master. There was a verdict, and judgment for him, and the defendant appealed.</p> <p>There was no statement of facts, but the defendant assigned errors. 1. That the suit ought to have been brought by the owner of the goods and not by the consignee.</p> <p>2. That the plaintiff’s counsel handed to the jury a formula, by which the verdict was rendered: they filling upon blanks left for the sums.</p> <p>3. That interest was given on the damages found, from the date of the petition.</p> <p>4. That the jury took an improper rule to ascertain the damages, viz. adding to the costs, at the port of shipment, the amount of insurance, freight, commission for the auctioneer and consignee, and deducting from the aggregate amount, the proceeds of the sale in this city.</p> <p>This is an action to recover damages for the injury done to certain goods, consigned to the plaintiff, on board of the vessel commanded by the defendant: which injury the plaintiff alleges arose from the negligence and mismanagement of the defendant.</p> <p>The general principle of law is, that the master aud owners are responsible for every injury that might have been prevented by human foresight or care. Abbott on ship. 276, 259. 1 Condey’s Marshall, 241, 2, 3. 6 Johns. Rep. 177. 2 Brown’s admiralty law, 144. 1 Emerigon 379, 377, 315. Pothier’s traite &c. charte-partie, no. 31. Domat, liv. 1, tit. 4, sect. 8, sect 4, and liv. 2, tit. 8, sect. 4, § 1. Justinian’s digest, lib. 19, tit. 2, lib. 25. and Godfrey’s comment thereon. 1 Pothier’s Pandects Justinian code 539, Roccus, nos. 55, 69, 16.—The jury, who were the proper judges of the fact, have by their verdict established the default of the defendant in this respect. But it is objected that the consignee of these goods has no right of action in his own name; particularly as the bill of lading states, that the goods were “for J. Hennen." It is an established rule, that an action against a carrier for the loss of goods, must in general, be brought in the name of the consignee, and not of the consignor. 1 Chitty on pleading, 3, the law implying the contract by the carrier, to have been made with the consignee, in whom the property of the goods was vested by the delivery to the carrier; and though the bill of lading, in this case, shews that the consignee is only a trustee, yet as the delivery is to be made to him, and as he has a beneficial interest in the performance of the contract for his commission, he may well maintain the action in his own name, and hold the sum recovered as trustee for the real owner, 1 Chitty on pleading, 4, 5. 1 Livermore’s law of Principal and agent, 215, 25. 2 Ventris 310.</p> <p>As to the objection that the court has allowed interest on the amount of the verdict of the jury, from the day of the judicial demand; it is sufficient to answer that a sum certain and ascertained was sued for; such a specific sum as could support the attachment that has been put upon the property of the defendant; and that the jury have found in favour of the plaintiff, that precise sum: therefore according to our practice, interest was justly allowed by the court on that sum, for which the jury found the defendant was in morâ. Just. digest, lib. 22.—tit. 1, l. 35.</p> <p>The other grounds taken by the defendant’s counsel for averting this judgment are clearly not within the province of this court. They might have been good cause, if established, for a new trial, but at this period such objections are too late.</p> <p>The bill of lading shews that the goods shipped on board of the defendant’s vessel, were the property of J. Hennen; if any damage therefore happened to them by the negligence of the defendant, it is the owner only who is entitled to bring an action. On this principle, the assignee being considered as owner, has in general the right of action: but here the consignee appears from the bill of lading, to be merely a trustee; and therefore is not entitled to any action for damages done to the goods of the owner.</p> <p>But independently of the objection to the form of action, the court below clearly erred in giving interest on the amount of damages found by the jury. The demand was unliquidated, until ascertained by verdict, and in all such cases no interest is ever allowed: for that would be to add to the verdict.</p> <p>If the court is satisfied, from the inspection of the record, that the jury erred in their mode of calculating the damages, or that the formula of a verdict was handed them: surely then it is, not too late to remedy this injustice whenever discovered.</p>

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

<p>Whether the recourse of nullity against a final judgment, as it prevailed under the Spanish Government, be still a part of the judiciary system of this state?</p> <p>On the eve of bankruptcy, a debtor cannot convey to one of his creditors real property, in discharge of a claim for which the creditor has a lien thereon.</p>

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

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

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

<p>When a couple remove from the country, in which they were married, their respective rights to the property which they acquire in the country to which they migrate, are to be regulated by its laws.</p>

<p>Errors in law, apparent on the record, may be assigned, altho’ there be neither statement of facts, special verdict or bill of exceptions.</p> <p>The attorney of absent heirs, appointed by the court of probates, may sue the curator of the estate, for a balance due by him without sueing him and his sureties on the bond.</p> <p>In such an action the balance is not to be paid to the attorney of absent heirs but deposited in the state treasury.</p>

<p>The holder of a negociable note, endorsed in blank, may sue thereon.</p> <p>When a judgment has been taken by default, for want of an answer, it may be made final without assigning reasons.</p>

<p>If the cause of action is stated to arise on the Bayou St. John, the defendant cannot succeed on the plea that it is not shewn to arise within the parish of New-Orleans.</p> <p>An appeal will not be dismissed, because the authority of the person who signed it for does not appear, on the record.</p> <p>If a note be indorsed over, and the indorsee not being able to recover its amount, return it to his endorser, the latter will recover on it, altho' there be no re-endorsement.</p>

<p>When the creditors of a ceding debtor refuse to accept the cession, & allege fraud, he cannot dismiss his petition.</p>

<p>A dedimus potestatem is not necessarily to be directed to a magistrate.</p> <p>When it is so directed, no proof is required of the commissioner being a magistrate.</p>

<p>Appeal from the court of the first district.</p> <p>The plaintiff and appellee demanded, as purchaser, under Samuel Corp, a certain lot of ground, situated, in the suburb St. Mary, adjoining the city of New-Orleans, which was attached by the defendants and appellants, as belonging to the said Corp.</p> <p>The history of the transactions, which took place between the parties was briefly this.</p> <p>The lot in question was purchased, in 1803, by Samuel Corp, with the funds of the house of William Rowlet & Co. of London, which he was then a partner. In 1806, he sold it, in conjunction with Rowlet, to Enoch Durand of London, for a sum of money, in which the partnership acknowdeged themselves indebted to Durand. The sale was first made by indenture, bearing date of the 21st of July of that year, in London, where the parties then were: and subsequently by a notarial bill of sale, executed in December of the same year, in New-Orleans, where Corp was represented by his attorney in fact, George Pollock, and Enoch Durand by Thomas Elmes, acting voluntarily, in his behalf. On the 25th of August 1811, Durand conveyed the property to the present plaintiff, by a deed of lease, and release, which was recorded in New-Orleans, on the 11th of March following, at the request of the plaintiff.</p> <p>There was judgment for the plaintiff and the defendants appealed.</p> <p>The plaintiff has not made out his chain of titles. There is a link deficient in it: for there is no conveyance from Corp to Durand; the latter having failed to ratify the acceptance of Elmes in his name, until after the failure of Grieve, in 1811. Nor was this conveyance accompanied by any possession.</p> <p>II. The plaintiff never accepted the conveyance from Durand.</p> <p>III. The whole transaction is feigned and tainted with fraud. The conveyance from Corp to Durand, was in fraud of the vendor’s creditors. This is clearly inferred from the price, from the vendor remaining in possession and continuing to receive the rents after the sale. The conveyance was a feigned one: intended to cover an usurious loan of money, at ten per cent. which clearly appears from the rent reserved.</p> <p>IV. The conveyance from Durand to the plaintiff was in fraud of the creditors of Corp, which is clearly inferred from the sum alleged as the consideration of the transfer, from the near relation in which the plaintiff stood to Rowlet, his inability to pay such a sum, and the circumstance that the plaintiff failed to make a demand of the rent in arrear in London, according to the terms of the lease.</p> <p>The necessity of a ratification of the acceptance of Elmes is not clearly seen. No law is cited or referred to, in order to demonstrate it. If a ratification be necessary, no particular form is prescribed; any act evincing an assent on the part of the vendee must be sufficient. He is the only party interested in making, or permitted to make, the objection. At what period soever made by him, the ratification must have a relation back to the period of acceptance. Here the acceptance of Durand, the vendee, appears by a variety of acts, by the execution of the articles of agreement between him and Corp, signed by both the parties, dated May 12, 1806, by the indenture tripartite, made in pursuance of these articles, between him, Rowlet and Corp, in which this property is conveyed, and the price and payment provided for, on the 21st of the following month, in pursuance of which the act of sale, from Corp to Durand, before P. Pedesclaux, was passed.</p> <p>The absence of the signature from the indenture is conformable to the English practice, according to which the vendee never signs the deed of sale, nor the lessee the original lease.</p> <p>The ratification of the acceptance further appears by the lease from Durand to Corp, on the 25th of November 1806, and his sale to the plaintiff on the first of August 1811; and generally by no act of Durand whatever, has the agency of Elmes been called in doubt: while on the contrary every act of his shows his approval and ratification.</p> <p>The delivery of the title deeds and the record of the sale in Pedesclaux’s office, render a proof of possession unnecessary. The lease of the property by Durand to Corp is an act of ownership and possession, as a tenant always possesses for his landlord.</p> <p>II. The acceptance by the plaintiff of the conveyance from Durand is evidenced by his record of his deed in Lynd’s office, on the 11th of March 1812, by his demand of possession from the syndics, on his first arrival in 1811, and by the institution of a suit against them.</p> <p>III. Fraud is alleged in the conveyances from Corp to Durand, and from Durand to the plaintiff. But who are the parties who charge this double fraud? Not Corp, who is barred by the judgment of the inferior court, from which he did not appeal, and who in his answer to the petition never tendered this issue, and who, in his answer on oath to our interrogatories, expressly negatives it. Are they the creditors of Rowlet and co. who sold this property, of Samuel Corp, making the firm of Rowlet and co. at New York, or of Corp individually? These persons as well as Corp individually were always solvent: it is not even pretended that they ever failed or were in discredit. Are they even the creditors of Corp, Ellis and Shaw, of which Corp was a member? Even the firm, if they failed (which has not been legally shown) failed in New York, out of the limits of the state: they are not represented, in this state, and can never appear in this court, but as solvent persons. But, they are not the creditors of Corp, Ellis and Shaw, but of Grieve, said to be a creditor of Corp, Ellis and Shaw, the existence, amount and quality of whose debt still remain to be judicially shewn in a separate case of attachment now pending against Corp, Ellis and Shaw in the city court. Can creditors of creditors, in an endless succession come in and object fraud? Can one set of creditors put themselves at pleasure in the place of another set to make this plea, and then sink back to their own characters to avail themselves of it?</p> <p>IV. The creditors of Grieve are said to have an interest in this suit. What interest can they have? Should they justify the opposition and even succeed in destroying our title, can they benefit by their success? Our title destroyed, in whom will this property vest? Not in Corp, Ellis and Shaw to whom it never individually belonged; but to Rowlet and co. with whose funds it was originally purchased. It proceeded from the cargo of the Chesapeake, belonging to Rowlet and co. was bought in at the instance of George Pollock, their agent, to secure a debt due them by Watson, their former agent, and afterwards sold by them to pay a debt of theirs to Durand. The legal title was in Corp, but as an agent and member of this firm. The sales were all made before any of the present actors figured in the scene. The property was bought for Rowlet and co. in 1803, sold to Durand in 1806, before the arrival of Grieve in this country, in 1808, before he was a creditor of Corp, Ellis and Shaw, about the period of their failure, in 1810, before ever this firm was formed, during the existence of the firm of W. Rowlet and co. at London, and Samuel Corp at New York, between which firms and that of Corp, Ellis and Shaw, there never was any mercantile transaction whatever: the latter of which was not formed, during the continuance of the former.</p> <p>At what period do these syndics of Grieve bring forward the charge of fraud? Not in their regular answer to this suit, in which they all deny our title, but in a second answer filed on the very moment of trial, and yet they ask, why we did not under our commission (professedly taken out to prove the execution of our deeds and justify our title, put at issue by their answer) procure evidence to rebut the charge of fraud thus suddenly objected. Let rather ask, why they did not on the contrary avail themselves of it to collect some proof, to justify this charge, which rests only in surmises, gratuitous suppositions, and bold assertions.</p> <p>With what view do they now impute this double fraud? Are they such as will bespeak a favourable hearing? Does not such an attempt to secure this property to themselves, indicate an intended fraud upon the creditors of Corp, Ellis and Shaw, thus attempting themselves to practice the same kind of fraud which they so gratuitously and unjustifiably impute to us? Who are the parties against whom this charge of fraud is brought? It is attempted to be traced up to Durand, as its source: a man, by their own witnesses, proved to be highly affluent and respectable, unimpeached and unimpeachable in every respect. But is Durand in court? Can he be stripped of his rights, as well as character, unheard and undefended? In this imputed fraud, Rowlet is made also to participate, but he is also proved by their own witnesses to be of the most respectable standing and in the highest credit. By the same fraud, the plaintiff is also to be polluted, against whom the severe investigation, both of private correspondence and confidential conversation, has produced nothing but encomiums upon his character and the confirmation of his title. Yet to believe this scheme and system of fraud, upon which every change has been rung, we must believe (without any visible or assignable motive) the collusive concert of all these parties, to which must be added the perjury of Corp, who has sworn to the truth of his answers to our interrogatories—of the plaintiff, who has sworn to the allegations in his petition and of the principal witnesses, who have testified in this cause. The grounds indeed, upon which these wild suggestions of fraud are sought to be sustained are almost undeserving enumeration or reply. Such as they are, let us look at them.</p> <p>Exorbitancy of price. If true, is it a proof of fraud or does it not on the contrary rather exclude the suspicion? Were these deeds feigned or fraudulent, would not the parties have chosen a price better suited to their purposes? If a large price were received as a proof of fraud, every hard bargain, upon the failure of the vendor or vendee, would be brought into court to be set aside, upon the ground of fraud. But the price was not exorbitant, as appears by the testimony of Pollock and Talcott, from the rent of $3000 received Pollock, from that required by Grieve, about the time of his failure of $300 per month, from that paid by their witness, Banks, of from $80 to $100 per month for a single house, worth alone, according to his testimony, $10,000. Is it remarkable then that Durand, a man of large property in England, where five per cent. is the highest rate of interest, should purchase real estate in this country, which yielded about ten per cent. and which Pollock informed him was worth 30,000? This more particularly when, as their witness, Urquhart, says the attention of foreigners was then turned to this country and real property bore a price above its intrinsic value.</p> <p>The rent reserved, £760 sterling, gives exactly ten per cent. it is said, upon the price paid. So would any rent reserved give a percentage upon the price paid. Had the price been £8000 sterling, then the rent would have given an interest of about eight per cent. upon the price and might as plausibly be urged as a proof of an usurious loan.</p> <p>It is objected that Corp continued to collect the rent, after the conveyance to Durand. Corp as the lessee, collected the rents from the tenants to enable him to pay the rent reserved to his lessor in London, according to the terms of his lease.</p> <p>It is alleged without any proof of it that the plaintiff was not in a situation to pay for the property and was a relation of Rowlet. The testimony rather shews his ability.</p> <p>Corp never pretended, nor was he reported, to be owner of the property, after the sale to Durand, but held it publicly as his tenant. It was always known and reported to belong not to Corp, but to some person in London. This circumstance cannot be brought forward by the defendants, syndics of Grieve, who was neither ignorant nor injured by it. He was conscious of the sale, and had been informed of it by Pollock.</p> <p>Lastly, it is objected that the plaintiff failed at the expiration of the ten days in arrear to make a demand of rent in London, according to the terms of the lease.</p> <p>This objection yields up at once every pretence of a feigned or fraudulent sale, or an illegal lease. The defendants must admit the validity of the instrument, by the conditions of which they wish to benefit. A demand of rent in London, was unnecessary on account of the acknowledged inability of Corp, to pay since February 1811. Lex neminem cogit ad vana seu impossibilia. It was waved by an agreement made with the syndics of Grieve, by which they are to hold subject to the decision of this court, not the rent reserved in the lease, but such rents as they shall receive from the subtenants: by which they discharge themselves altogether of the reserved rent. The necessity of a demand in London is then completely waved, since the syndics do not reside in London, but in New-Orleans, and the rent, by agreement, now to be received is no longer a semi-annual payment, according to the lease, but a payment only to be made on the successful termination of this suit, and no longer of a fixed demandable sum of L.335 sterling, (according to the lease) but the uncertain amount of rents collected and to be collected by the syndics of the subtenants.</p> <p>By the English law, under which this loan was made, since 4 Geo. 2, the landlord, upon the non-payment of rent for half a year, can serve a declaration in ejectment, without any formal demand of rent in arrear, 3 Co. inst. 202, a, n. 88, 15 East 206, 8 id. 341, 365.</p> <p>As the lease has onerous conditions, the assignees of Corp (if he had been shewn to be insolvent and represented, in this court) were not obliged to receive it, and must do some act, expressly manifesting their acceptance, it not passing by the general assignment. Suppose for a moment that the syndics of Grieve were the assignees of Corp, then they have, or have not accepted the lease. If they have not, they cannot claim the benefit of any of its acts provisions. If they have, their agreement above cited with the plaintiff waves the necessity of a demand in London. But they are not the assignees of Corp, and the judgment against Corp, in the lower court, without appeal, bars the syndics of Grieve.</p> <p>The whole term in the lease is now expired, and even if we had no right to re-enter upon the premises by virtue of the clause of re-entry in the lease, upon the expiration of the lease, the possession reverts to us, upon the decision of the court in favour of our title.</p>

<p>If a debtor does not make a cession of his goods, at the meeting of his creditors, the order for staying proceedings may be rescinded.</p>

<p>Altho’ the mayor’s salary may not be reduced, during the service of the incumbent, he may agree to receive less, or that a part of it may be applied to other purposes, and his receipt for a less sum for his salary will bind him.</p>

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

<p>Appeal from the court of probates of the parish of New Orleans.</p>

<p>Individuals summoned to work on the levee of delinquent planter are to be paid out of the treasury of the parish and have no action against him.</p>