Volume 3 — Martin's Louisiana Term Reports, New Series (1821–1830)

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

<p>A judgment is valid, although the sum adjudged be not stated therein, when the sum appears on record.</p>

<p>When the witness has an interest in the question to be determined and none in the event of the suit, the objection goes to his credibility, not to his competency.</p> <p>Purchasers under the same title, without partition, cannot prescribe against each other, by the lapse of ten years.</p>

<p>The act of the legislature which requires the sum promised to be paid, to be written in words at full length, does not affect notes made before its passage.</p>

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

<p>No appeal lies from an order to transfer a cause.</p>

<p>If a case be remanded, with the view of correcting a partial error, the district judge acts correctly, in assuming a former report of referees not excepted to, as the state of the accounts between the parties, and in ordering a partial reference only, with a view to complywith this decision of the supreme court.</p>

<p>The decision of the judge a quo invariably prevails in the supreme court, on questions of fact when it is not manifestly erroneous.</p>

<p>The purchaser at a sale by order of the court of probates is not entitled to the action of redhibition.</p>

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

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

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

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

<p>Sureties on curators bonds may be sued in the district court, so may beneficiary heirs when a breach of duty is alleged, which renders them responsible in their personal capacity.</p> <p>If the suit is dismissed in the inferior court, on a want of jurisdiction, the merits cannot be gone into in the supreme court.</p>

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

<p>Interrogatories propounded to a party in a suit, cannot be answered by his agent.</p>

<p>When the plaintiff fails to make out his case, there will be judgment of nonsuit.</p>

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

<p>When the plaintiff fails to make out his case, there will be judgment of nonsuit.</p>

<p>Purchasers of land at probate sale, cannot call on the succession for the value of improvements put on it by third persons, if it were sold such as it belonged to the succession.</p>

<p>A plea of res judicata sustained, if it appear the party claimed the same thing in another suit, where it was disallowed.</p>

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

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

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

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

<p>Sale of slaves not followed by delivery, will not prevail against a second purchaser to whom they are delivered.</p>

<p>The vendor cited in warranty who declares he transferred and delivered to the vendee, but has a just and legal title, does not acknowledge title in his vendee.</p>

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

<p>The husband may be surety for the wife in an appeal bond. Courts in this state cannot enlarge their jurisdiction by fictions.</p>

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

<p>The acknowledgments of the vendor in the deed of sale, are evidence against a subsequent vendee.</p>

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

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

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

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

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

<p>A new trial will not be granted, if the party applying for it has not used due diligence to procure the necessary evidence.</p>

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

<p>A man's solvency cannot be better tested than by the return of an execution against him, on which no property can be found.</p>

<p>A curator, or beneficiary heir, ordered by the court of probates to pay a debt, may be sued in the district court.</p>

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

<p>If there be no bond given on the appeal, it will be dismissed.</p>

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

<p>If the defendant's plea be not supported by evidence, and he appeals, damages will be given against him.</p>

<p>A claim supported by vague proof will be disregarded. Novation is never presumed.</p>

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

<p>A judge needs not in all cases refer to the law which he decides.</p>

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

<p>If an overseer be discharged for misconduct, he can only recover for the time he served.</p>

<p>Return of the sheriff, that he served petition and citation, is sufficient to shew he served it in both languages. It does not vitiate the venire that three of the persons drawn cannot be summoned.</p>

<p>Under Spanish law, valuation in the contract of marriage did not transfer property to the husband.</p> <p>Prescription does not run against the wife in favour of the purchasers of her property, although separated.</p> <p>Purchaser is not necessarily in bad faith from the inception of suit.</p>

<p>An appealliesfrom a judgment of dismissal. The indorsee cannot require that the payee be made a party and answer interrogatories.</p>

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

<p>The court not the party, must judge whether due diligence has been used to procure testimony.</p>

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

<p>Laws are not presumed to have a retrospective operation.</p>

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

<p>A defendant is not regularly in court by service on an attorney appointed by the court to defend him.</p>

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

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

<p>An agreement to pay ten per cent on the purchase money for three years, which is afterwards extended to the fourth year, does not entitle the creditor to interest at this rate, on further indulgence.</p> <p>The buyer owes interest on the price of slaves from the time the debt becomes due.</p>

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

<p>He who has stipulated in favor of another may revoke the stipulation any time before acceptance. A party who alleges that writings produced against him are forgeries, is not obliged to disavow them formally, in order to be allowed to offer evidence of the fact.</p> <p>If the heir who is present buys property as litigigious, he cannot claim the increased value in case of eviction.</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>When the principal debtor has failed, it is not necessary to obtain judgment against him, in order to pursue mortgaged property in the hands of a third possessor.</p> <p>Where the lien results from an act done, and not from a contract reduced to writing it need not be record.</p> <p>A decision on any point connected with the merits, authorises an examination of the whole case in the supreme court.</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>Ten per cent is an unreasonable charge for commission on the sale of goods.</p> <p>Appeal for delay alone, judgment will be affirmed, with damages.</p> <p>A frivolous appeal is one of the cases contemplated by the statute, in which damages may be given.</p>

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

<p>Judgment will be confirmed, with damages, if brought up for delay alone.</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>The pleas of usury, fraud, and want of consideration, do not wave the general issue.</p> <p>An act of the legislature cannot affect instruments executed before its passage.</p>

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

<p>Although the judge a quo gave an erroneous our charge to the jury, the case will not be remanded, if justice has been done.</p>

<p>The plaintiff may shew the value of goods sold, although he does not declare on a quantum valebant.</p>

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

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

<p>Every affidavit for a continuance, should contain a declaration that the evidence is material, that due diligence has been used to procure it; that there is an expectation it will be had, and that the application is not made for delay.</p> <p>A judgment against a person who sues to nuisance does not form res judicata against another who brings a similar action.</p> <p>The right conferred on the Navigation Company, to make a road along the banks of the bayou St. Jean, is not a surrender of the sovereignty of the public.</p> <p>A squatter on the public lands, has no rights to object to a road being run through his possessions.</p> <p>Parol evidence cannot be given of the contents of a grant.</p> <p>The right of the public to make roads is not limited to the banks of navigable streams.</p> <p>Possession cannot be pleaded against the public, unless it is immemorial.</p>

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

<p>If the note alleged to have been lost, is admitted to have been executed, and it is proven it was protested and afterwards returned to the plaintiff, so that an endorsee would acquire it subject to all the equity, that might be opposed to the plaintiff, he will not be compelled to give surety.</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 first district.</p>

<p>If the vendor after the sale. promises to send the thing on board of a vessel and through the neglect of the person he employs, it be lost, the vendee may refuse the payment of the price.</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>The bank cannot contest the right of the person who lodged a note with them, to it.</p> <p>The bank may be sued for neglect, in protesting the note and giving notice, before the holder proceeds against his endorser.</p>

<p>The mortgagee may proceed against a third party in possession, when the mortgagor has failed.</p>

<p>In the act of 1821, p. 118, set off is used as synonimous with compensation.</p> <p>The plaintiff may shew, at the trial, that what is claimed by way of reconvention, is pending in court in another suit.</p>

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

<p> Appeal from the court of Probates. </p>

<p>Absolute heirs, of full age, may sue or be sued, in the parish or district court.</p> <p>A purchaser who buys without the legal forms, cannot, when sued by the vendor, claim security against vendor's title.</p>

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

<p>Appeal from the court of probates.</p>

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

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

<p>A second writ of fi. fa. cannot be issued until the first is returned.</p>

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

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

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

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

<p>A minor, not emancipated, cannot bind himself, unless the contract has turned to his benefit.</p>

<p>Payee of an order cannot recover from the drawer without shewing demand and notice.</p> <p>The vendee of a judgment debt may resist payment, if the claim was only in suit at the time of sale.</p>

<p>Bills of exceptions cannot be taken to final judgments.</p> <p>A judgment of eviction cannot be pleaded as res judicata against a claim of the vendee for damages.</p> <p>Transaction may include partition, as partition includes alienation and sale.</p> <p>The same rules which govern partitions strictly such, do not apply to every act by which the community of property is destroyed.</p> <p>It is a fiction of law to present lesion, that all acts which put an end to the community of property; are to be regarded as partitions.</p> <p>A contract by which the step-father renounces all right to his wife’s estate on receiving specific property, is not a partition.</p> <p>If one of the parties to a contract of exchange be evicted, he may sue for damages or the thing he gave, and if it be a minor who evicts him, he must restore the object received, if in his possession.</p> <p>The first vendor may be sued in warranty, by his immediate vendee, upon the person to whom the vendee sold, being evicted unless the first vendee alienates without warranty.</p>

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

<p>Services rendered by the plaintiff for the defendant, on board of his steamboat, cannot be connected with those rendered on board another boat, in which he had interest, in order to repel the plea of prescription as to former services.</p>

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

<p>Three-fourths of the creditors on the bilan, are necessary to forced a respite.</p>

<p>The vendee ought to be permitted to shew that the property purchased is mortgaged, and suit brought on the mortgage.</p>

<p>Confession cannot be divided. Where the evidence leaves the fact doubtful, court will not disturb a verdict of two juries.</p>

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

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

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

<p>The act of 1813, in that part which requires the registry of marriage contracts, is constitutional.</p>

<p>A curator may demand the succession of his intestate's son.</p> <p>The validity of a will, which has not been presented to the judge of probates, will not be enquired into, in the district court.</p> <p>Till such a will has been so presented, it cannot authorise prescription.</p>

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

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

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

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

<p>An appeallies from the order of a court ordering a writ of seizure and sale.</p> <p>The plaintiff cannot proceed at once by the via executiva and via ordinacia.</p>

<p>Three fourths of the creditors who are placed on the bilan, must assent to the respite, in order to bind the absent creditors.</p>

<p>The lading of goods may be proved by parol, if it does not appear there was a bill of lading.</p> <p>A party ought not to be allowed to prove what was not alleged.</p>

<p>If the verdict be manifestly against evidence, the case will be remanded.</p>

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

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

<p>On the death of the defendant, and the appointment of a curator to his estate the plaintiff may demand the removal of the case to the court of probates.</p>

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

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

<p>Appeal from the parish 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>If a commission merchant send an account current, in which a balance appears due from him, which he afterwards pays, he will not be allowed to recover it back on the ground that he sold his correspondent's cotton for a bill of exchange on N. York, which has since returned protested, if he did not before disclose this circumstance: especialy if the correspondent consigned the cotton for a third party, to whom he has paid the proceeds.</p>

<p>If judgment be rendered in a suit where three are parties, two of them cannot have the judgment reversed in another action.</p> <p>Executors cannot safely pay a mortgage creditor until his claims be settled contradictorily with the other creditors.</p> <p>If the representative of an estate fail to settle it, the regular course is to compel them to file a tableau of distribution. And if they fail to comply with an order to that effect, they will render themselves liable in their private capacity.</p>

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

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

<p>It is not a good defence against the claim of a sheriff for fees of office, that he has not resided within the state during the time the services were rendered.</p> <p>Where one charges the other with a culpable breach of duty, he is bound to prove it, tho’ it involve a negative.</p> <p>If slaves be committed as felons and runaways, an acquittal of them as felons, does not authorise a discharge of them as runaways.</p> <p>It is not a good defence the slaves were not kept in close custody.</p> <p>If a sheriff fail to advertise runaway slaves, he cannot recover his legal fees, but he may recover the value of his services, if the owner knew of their confinement and refused to take them out.</p> <p>Cause will not be remanded for an error on the trial, which could not have affected the merits.</p>

<p>The words I do sell, in an instrument, amounts to a sale.</p> <p>Consent of vendee may be given after the sale, and proved by evidence aliunde.</p>

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

<p>If a note be made payable at the house of A. B. a demand at his dwelling house: office is good.</p>

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

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

<p>A curator is functus officio, at the end of the year; and then the court of probates has no longer any jurisdiction over him.</p>

<p>Property specially mortgaged, cannot be sold at the suit of a third party, unless it bring more than the amount for which it is mortgaged.</p>

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

<p> A bank is not relieved from the obligation of due diligence, in the case of a note received to be collected,by the removal of the maker's domicil out of the city. </p>

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

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

<p>Where the the rules of court do not require a replication, all means of defence are left open to the plaintiff.</p> <p>The widow who accepts the community, may be sued in the district court.</p> <p>The wife who has taken an active part in the community, or has not made an inventory, cannot renounce.</p> <p>What is full value in money for a note, is a question of law.</p> <p>Usury may be committed by agreeing to take the legal rate of interest, on a larger sum than that really lent.</p>

<p>If a contract be not obligatory when entered into, a change in the law cannot make it so.</p> <p>The allegata and probata must agree.</p>

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

<p>If the jury, instead of deciding on conflicting evidence, make a compromise between the parties, the cause will be remanded.</p> <p>If the evidence be equal, the decision should be against the party holding the affirmative.</p>

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

<p>Real actions are those in which a specific thing is demanded, whether moveable or immoveable.</p> <p>An application for an order of seizure and sale, should be made to the judge of the place where the debtor resides.</p>

<p>Plaintiff cannot proceed at the same time with an order of seizure and a suit in the ordinary way.</p> <p>If they be both resorted to, the via executiva merges in the via ordinaria.</p>

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

<p>Plaintiff may prove payment of a written order in favor of defendant without producing it, if the existence of the order be admitted.</p>

<p>Defendant cannot amend his answer without leave of the court, by inserting in it that he will make it more explicit if the plaintiff wish.</p> <p>Compensation should be specially pleaded.</p>

<p>The surety on a twelve months bond cannot be released on the ground that the sheriff neglected to file the bond with the execution.</p>

<p>If a decision of the judge a quo render certain evidence useless, the party will be allowed the opportunity of introducing it, if the decision be held to be erroneous.</p>

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

<p>The plaintiff need not file any replication.</p> <p>The return of a citation cannot be explained by parol.</p> <p>Not even by the sheriff or his deputy.</p> <p>The remedy, in such a case is to call on the officer to amend.</p> <p>Fraud may be shown at the trial without having been alleged in replication.</p> <p>If there be a replication it may be read to the jury, to place before them a charge that might be made ore tenus.</p> <p>The defendant cannot be admitted to demur to the evidence, unless he admit everyfact which the jury may presume from it.</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>Appeal from the court of the third district.</p>

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

<p>The court of probates ought not to order the balance in the execution to be paid into court, to be by it applied to the payment of the debts & legacies.</p> <p>The executor cannot pay any debt, without the order of the court,especially one against, which the plea of prescription lies.</p> <p>A parol admission of the debt, does not enable workmen and domestics to repel the plea of prescription.</p>