Volume 2 — Martin's Louisiana Term Reports, New Series (1821–1830)

<p>A report of experts ought not to be rejected, because the experts swore after it was reduced to writing.</p> <p>Nor because the oath was administered by a justice of the peace.</p> <p>Although there is but one tract to be divided, the experts ought to make an inventory & appraisement of the several buildings on it.</p>

<p>Sequestered property, when there is a judgment of non-suit, is to be replaced by the sheriff, in the hands of the person from whom it was taken.</p>

<p>A wife claiming as legatee of her husband, cannot shew the simulation of a sale by parol evidence.</p> <p>Otherwise, when she claims in her own right.</p> <p>Declarations of the vendor, out of the presence of the vendee, may be given in evidence against the latter.</p> <p>But they are no evidence of fraud in the latter.</p> <p>It is no good objection to testimony that it does not make out at once the whole of the case he support of which it is offered.</p> <p>A suit to set aside a sale is well brought or just the party who received the properly.</p>

<p>A motion to dismiss a suit, because the plaintiff was appointed administrator in another state, is too late, after a plea on the merits.</p> <p>And he will recover even in a suit as administrator.</p> <p>A possession byone in stealth cannot avail.</p>

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

<p>An action of trespass is prescribed by a year.</p>

<p>Inconsistency in pleas, not objected to below, cannot be complained of on the appeal.</p> <p>The Spanish insolvent laws, in force before the adoption of the constitution of the U.S. by the people of Louisiana, are not affected by that instrument.</p>

<p>The mortgagee's right un-der the past de non alienando is not repealed by the Civil Code.</p>

<p>The act of 1817 has not repealed the former laws re-lative to the voluntary surrender.</p> <p>It introduces a cumulative remedy, from which certain insolvents are excluded.</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>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>

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

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

<p>The ten days allowed by law for filing an opposition to the appointment of syndics to an insolvents estate commence running from the day on which the proceedings, had before the notary for that purpose, were closed.</p>

<p>The record of a suit against a debtor in which judgement was rendered for an intervening creditor is sufficient proof of the said creditors claim.</p> <p>The conveyance which gives all the property of a debtor to a single creditor who has no preference by law is fraudulent both on the part of the debtor & the creditor.</p> <p>If such conveyance is attacked as fraudulent, it is for the vendee to shew that the debtor possessed other property.</p>

<p>The clerk's certificate that he has given a true transcript of the record does not enable the Supreme court to examine the facts of the case.</p>

<p>If a debtor pleads a general denial against a claim which h~ subsequently ad-I-flits to he just, he will be sentenced to pay Costs, although the judgement authorizes him to withhold pay mont until the plaintiff furnishe security.</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 want of an answer does not authorize, without evidence the confirmation of a judgement by default, except in cases where the demand is liquidated.</p>

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

<p>The fees of parish judges for selling at auction the property of an estate or succession are regulated by the law relative to the fee bills passed in 1813.</p>

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

<p>A creditor may here attach the property of his debtor before it is transferred by sale and delivery.</p> <p>And that, although different rule should prevail in the country of the domicil of the debtor.</p>

<p> The property of a debtor may be attached in the possession of third person to whom it was transfered and delivered as a security for refunding any disbursements made on account of the said debtor. </p> <p>But the claim of the attaching creditor will be postponed to that of the said third person for the amount of the disbursements so made by him.</p>

<p>Where a party submits certain points as questions of law to be decided by the court, the admission of the facts on which the said points are grounded is to be taken for granted.</p> <p>If parties on going to trial agree on certain facts and investigate before a jury those on which they disagree, it is the duty of the court,when the verdict has established the contested facts, to take the whole of them together and pronounce its judgement on the case.</p>

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

<p>Former judgment confirmed.</p> <p>If a judgement appealed from is not incorrect in what it decides, this court will not reverse it, although it does not do entire justice to the parties.</p>

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

<p>The absence of one of the attorneys employed, is not a ground for a new trial, when the other declared himself ready to proceed, when the cause was called.</p> <p>A person who undertakes to collect a debt, by suit,is bound to issue a ca. sa. if the money cannot otherwise be collected.</p>

<p> The defendant, in a fi. fa. may purchase the plaintiffs note, and suspend the execution of the writ, till his claim, to set off the amount of the note, be determined. </p>

<p>A creditor may use all legal means against any of his debtors in solido.</p> <p>A fact, added by the party, answering interrogatories, to his answer, is not to be stric en out because not called for, by the interrogatory.</p>

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

<p>The mention, in the judgment of a court before whom a debtor is discharged, that be took the oath required by law, is evidence of the fact.</p> <p>A debtor, within the prison bounds, may avail himself of the act of 1803, in favor of debtors in actual custody.</p>

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

<p>A payment made to an attorney, who instituths a suit, but does not proceed, beyond the service of the citation, cannot be allowed, without some other evidence of its legitimacy.</p>

<p>The endorser of a note (given for the purchase of slave, by the maker) is by the payment, subrogated to the vendor’s rights and may demand the rescission of the sale.</p>

<p>The district court cannot proceed, in a suit, in which the defendant has obtained a stay of proceedings from the parish court.</p>

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

<p>Insurance may be made on freight to be carried.</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>

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

<p>A lease at will is determined, by a tender of the keys after the legal notice.</p>

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

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

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

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

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

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

<p>A mortgagee has a right to require the syndics to sell for cash.</p> <p>It suffices that the mortgage be recorded before the cession, to be binding on the creditors.</p>

<p>The purchaser of the land of an estate, under the directions of a court of probates, acquires it free from incumbrances.</p> <p>Any irregularity in the sale, must be complained of, before the homologation of the curator’s account.</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>Appeal from the court of the eight district.</p>

<p> The judgment cannot exceed the sum claimed in the petition. </p>

<p>If the defendant promised to deliver to the plaintiff, his overseer,a quantity of provisions for himself and family, they cannot be with-holden till the end of the year.</p> <p>It is not a fatal objection to his petition, claiming their value in money, that their value is not stated.</p> <p>If A. propose to B. to take charge of his plantation as an overseer, for a certain allowance, B’s going on and taking charge of it, is evidence of his assent to the terms.</p> <p>Nothing requires the defendant’s answer to the plaintiff’s interrogatories to be inserted in the answer to the petition.</p>

<p>If notes are placed in a man's hands for collection and to secure him for advances made and to be made, he may resist a demand of them till he be indemnified.</p>

<p>No bill of exception lies to a final judgment.</p> <p>The payee of a note who has endorsed it, cannot maintain any action on it, even for the use of his endorsee.</p>

<p> From the sole circumstance of the claimant's being in the defendants service, it cannot be inferred that the property attached belonged to the latter and not to the former </p>

<p>In actions of slander, it is sufficient to prove the substance of the words charged.</p> <p>But a charge of robbing the plaintiff of his tobacco is not supported by evidence of his dishonestly obtaining the tobacco.</p> <p>An amended answer need not be served. But an answer to it is essentia or judgment may be taken by default.</p>

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

<p>The certificate of a commissioner that a deposition was taken in his presence, is evidence that every thing which appears on the face of it was done in his presence. The parts objecting to evidence, must at the trial, state the particular grounds of his opposition.</p> <p>A service of the interrogatories to be put to a witness, does not dispense with the notice of the time and place of his examination.</p> <p>The rules of the district court, must be shown to the supreme court, as, any other matter of fact.</p> <p>In matters emphatically proper to be tried by a jury, the supreme court cannot take on itself to decide the case on other evidence, than that laid before the jury.</p>

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

<p>An executor is not liable, in the district court,for a debt of his testator.</p>

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

<p>A power to institute a suit and carry it on to final judgment does not include that at making a compromise, nor that of receiving the money due.</p> <p>The decree of a court of competent jurisdiction cannot be examined collaterally, by the parties or those claiming under them.</p> <p>The receipt of a part of an estate, received by the agent, is not evidence of an intention to ratify or compromise, by which he abandons any part of it.</p>

<p>Syndics have no right to receive the whole proceeds of a chattel of which their insolvent was a part owner only.</p>

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

<p>If the plaintiff demand less than three hundred dollars,the case cannot be appealed from, though the defendant offer a set off, which, added to the plaintiff's claim would make an aggregate of more than three hundred dollars, and accounts to a larger amount were investigated,on the trial.</p>

<p>The laws relating to resspites, in force in Louisiana before the adoption of the constitution of the United States by the people there, are not repealed by the article of that instrument. which inhibits states from passing certain laws.</p>

<p>A suit is maintainable by an individual in the district court, for the obstruction of a highway.</p>

<p>One suit may be brought on two different causes of action if they be not inconsistent. An attachment lies in a case of damages.</p> <p>The affidavit is sufficient, when it is so clear, positive, and certain, that it will support an indictment, if the facts be untrue.</p>

<p>The judgment was affirmed, if the appellant does not bring the case before the court in such a manner as to enable it to examine the merits, if there be no bill of exceptions, &c.</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 eighth district.</p>

<p>When a right is averred on one capacity, and investigated on another, judgment will be given according to the justice of the case.</p>

<p>The supreme court cannot act, on evidence, taken down by the clerk, in a case in which he was not bound to take it.</p> <p>If the petition has a charge of error and fraud --if the case be tried on special facts--if neither error and I fraud is noticed in the facts submitted--both charges will be considered as abandoned.</p>

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

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

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

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

<p>If property, part of a succession, be irregularly sold, and an action of warranty be grounded thereon the action does not appertain to the court of probates.</p>

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

<p>The insured may in all cases abandon as for a total loss when the object insured has been damaged to the amount of half its value.</p> <p>Whether the insured may abandon where there has not been a total ross, in case the insurer will not undertake to repair the vessel?-Quere.</p> <p>But the insurer cannot claim this right, if he abandons without calling ou the insurer to make those repairs.</p> <p>If a ship becomes unnavigable from age or rottenness, the insurers are not responsible.</p> <p>If the injury which the vessel has sustained, be such that the unsoundand decayed parts of the vessel cannot be used</p> <p>before the accident, without repairs equal to half the value, the insured may abandon.</p> <p>But if repairing the injury which has arisen from one of the porils insured against, will replace her in the same situation she was before, no matter how utrasound, the insured cannot abandon.</p>

<p>An injured person may bring suit, in his own name, on a marshall's bond.</p> <p>It is a breach of the condition of the bond, not to have the proceeds of the sale of a vessel ordered to be sold; ready, &c.</p> <p>A person on whom the law imposes a duty, cannot excuse his neglect on the ground that he was not asked to perform it.</p> <p>Prescription does not run against him who cannot sue.</p>

<p>A party may be compelled to produce his books of accounts.</p>

<p>Claims against vacant estates are exclesively cognizable in the court of probates.</p>

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

<p> Executors, who reside abroad, cannot compellegatees of property in the state, to sue them elsewhere. </p> <p> The legacy of a debt includes that of the interest due thereon. </p>

<p>The landlord may have an order of seizure, in limine litis, on a lease by authentic act.</p>

<p>If, on a lease for years, the tenants, abandon the premises, the landlord may demand the rent for the whole term.</p>

<p>Landholders are compellable to make or repair their levees, according to parish regulations, and those have no binding force, before promulgation.</p>

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

<p>Although the clause of warranty relates to a defect of title only, it is not to be presumed that the parties did intend there should be no warranty, in regard to red-hibitory defects.</p> <p>The criminality of a witness cannot be proven otherwise than by the record of his conviction.</p> <p>The vendor is affected by a judgment against the vendee.</p> <p>The vendee may recover against his warrantor, without returning the slave, if he be runaway.</p>

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

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

<p>Part of the facts at issue may be submitted to a jury.</p> <p>Supreme court will not reverse the judgment below, if the case turns on the credit due to a witness.</p>

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

<p>If the petition does not shew notice to the endorser, the judgment ought not be final-but the plaintiff should be non-suited.</p>

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

<p>APPEAL from the court of the eighth district.</p>

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

<p>The issue of an Indian woman are free.</p>

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

<p>Merchants books do not prove against other merchants the sale and delivery of the articles therein mentioned.</p>

<p>If the maker of a promisory note cannot be found, payment must be demanded at his domicile, if within the state.</p>

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

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

Pierce on an application for a rehearing If justice is even handed, that it which is meted to defendant, is meted to plaintiff, and vice versa-if a rule is taken, which if refused you may appeal from, if granted, I may appeal -because the very fact of your being permit- ted to appeal, shows that some irremediable injury would in the opinion of the court have accrued to you; by refusing the rule, therefore by granting it some permanent benefit is obtained to you,-now if come…

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

<p>“ Frequent intemperance” and “ habitual indolence” charged against a clerk, are too general, & evidence cannot be received in support of them. A clerk will not be removed for having acted incautiously, if his acts have occasioned injury to no one.</p>

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

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

<p>Corporations can only sue & be sued by the name given by the act of incorporation.</p>

<p>Notice of protest is necessary to charge the drawer of a bill of exchange, altho' it may have been given in discharge of a precedent debt.</p> <p>And that whether the parties are merchants or not.</p> <p>A promise to pay the bill if duly protested, is not a promise to pay if it be afterwards protested.</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 United States have no lien for debts duethem. They have only a right to priority of payment out of funds in the bands of the representative of the insolvent.</p> <p>The legal lien of the landlord is of a higher nature than the claim of the United States on custom house bounds.</p>

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

<p>Testimony which is immaterial cannot be received.</p>

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

<p>ante 568.</p> <p>A rehearing will not be granted on a technical objection, if points have not been filed.</p>

<p>Executors cannot be received in their private capacity as sureties on an appeal taken from a judgment given against them in their representative character.</p> <p>Possession of property to the amount of $400 does not authotrise the possessor to be surety for $600.</p>

<p>APPEAL from the rourt of the eighth district.</p>

<p> When the case is doubtful on its merits the judgment of the court below prevails. </p>

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

<p>If a bill is accepted on the promise that a mortgage will be given to secure the acceptor, and it be subsequently given. If the mortgagor fail, the date of the promise will be considered in enquiring whether it should be set aside.</p>

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

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

<p>A judgment in a sister state between the same parties, for the same thing, sustains the plea of res judicata.</p> <p>The plaintiff cannot in his replication claim the benefit of a judgment which is opposed to him as an exception.</p> <p>If the defendant is not properly before the court, there can be no judgment rendered between the plaintiff & garnishees.</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>Appeal from the court of the parish and city of New Orleans.</p>

<p>A fi.fa. may be levied on a sum of money, directed by the legislature to be paid the defendant.</p> <p>The defendant cannot oppose to the plaintiff in the fi.fa. that this money is in the constructive possession of a third party.</p>

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

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

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

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

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

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

<p>Prescription is never pleada-ble to a claim of freedom.</p>

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

<p>The supreme court will not think themselves bound by a verdict, when the presumption is very strong that it does not meet the justice of the case.</p>

This was an action instituted the see of a promissory note for $800, against the A bail maker.

<p>executor is liable before the property of the estate is all administered, but the judgment ought not to be absolute, but that the plaintiff be paid in the due course of the administration. administration.</p>

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

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

<p>An action may be maintained by one, who is not expressly a party to the bond, when it has been executed for his benefit.</p> <p>When the petition charges that the bond sued on, was taken, according to law, and it is set forth and made a part of it, the reading of it cannot be objected to, on an allegation that some of the formalities of the law were neglected.</p> <p>The surety in a bond, in which it is stated that the principal has been appointed as auctioneer, is estopped from denying that he was.</p> <p>The sureties of an auctioneer are bound for the payment of the amount of the goods sold, after the date of the bond, although they were delivered to him before.</p> <p>In whatever manner he may appear to have bound himself, he shall be bound.</p>

<p>Procuring the means of producing an abortion is a breach of good behaviour, for which a clerk may be removed from his office.</p>