Volume 4 — Martin's Louisiana Term Reports (1809–1830)

<p>Appeal from the court of the first district.</p> <p>In this case, the citation of appeal was served on the attorney of the appellee, the appellee himself being within the parish : a motion was thereon made to dismiss the appeal.</p> <p>The court determined, that the service was merely void, and that the appellant might take an alias citation, from the district court, to be served on the appellee in person, notwithstanding the return day of the appeal had past.</p>

<p>No action can be brought in the court of the parish and city of Nevv-Orieans on a judgment rendered in the territory of Alabama.</p>

<p>Asale under private signature is binding, although it recites thein-pan'ie" to have executed.aCt</p>

<p>Appeal from the court of the parish and city * J 0f New-Orleans.</p>

<p>property^not dotfisUpa«-in shehaíamoit-gage on her husband’s property, if iie dispose of it.</p>

<p>A slave, who enjoyed her freedom, in Hispaniola during- the late revolution, jnay reckon that time in establishing her right to freedom, by prescription</p>

In the year 1789, Bertrand Gravier sold to J. B. Poeyfarré, under whom the plaintiff and appellant claims, a piece of land, then a part of a plantation, near the city ’ 1 _r New-Orleans, on which the faubourg St. Mary now stands.

<p>A witness, who testifies against his own insterest, is not iiabie to any objection.</p>

The plaintiff was owner of a slave, and left him in the care and possession of Alsop. This is proved by a counter letter. As between the plaintiff and Alsop, he belonged to the plaintiff, and must be delivered, on demand. This is the nature and force of the counter letter, as established by this court in the case of Griffin’s ex. vs. Lopez, 5 Martin, 145. At the death of Alsop, this slave was in his possession, and was taken by the defendant, as curator of Alsop’s estate.

<p>administrator was not entitled to a commission, on property, in the possession of the intestate at his death, but belonging to other persons.</p>

<p>Altho’ the te* nant holds over, after notice, to quit, and a declaration that hisher rent will be demanded, no more than the rent pre-viousiy paid can ^thouTevIdeñ. of the value of the rent or of damage, sus-landlord? * 6</p>

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

<p>bring an action of partition, P,iiri,hased ⅛⅞ whole estate, from his co-An heir may</p> <p>An action of 30</p>

<p>The inferior court rnav fix the compensa-tórney, & when tint,'""thT’t!-preme court will not interfere,</p>

<p>If lie who has goods for sale tor anotlur, gives an account which is accepted, he may not, after-wards, he called upon, for the price of any part of the goods, not collected.</p>

<p>if a slave, sold, remains with the vend- or, lie ⅛ liable h'L debts.</p>

<p>This case turns on a oftosqUe3Uon</p>

<p>from1 an oSer submitting accounts to referees, uj pre-</p>

<p>When an act is attacked as fraudulent, pa* rol evidence is admissible> 10 prove or rebut the allegation of fraud.</p>

In this case, the defendants obtained a rehearing. 5 Martin, 618. The judgment appealed from, was made on a rule, obtained by a judgment creditor of the insolvent, directing the defendants, syndics of Williamson and Patton, to shew cause, why they should not do three things. 1.

<p>When the whole facts come up with the record, a bill of excep. tions to the charge of the inferior court is not noticed.</p> <p>If the vendor be brought in by bis vendee to defend his title, the judgment does not bind him, as to the amount of damages he may afterwards claim, from the then plaintiff, his own vendor</p>

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

<p>of a person, for dén’mkrnYs^ sued, is not an incompetent witness for the plaintiff.</p>

<p>in determine on the propriety of allowing a ded. pot. the court may look into the record ot' another suit, between the So^nayThe^su-theTppeif’if that record he there also. If fraud he *d.a/>oí.etshaU prove!t.te<^ t0 The affidavit ought to specify the fact, intended to be proven, that the may°Savouiarthe admit‘</p>

<p>it' the testa tor dispose of property, winch tie was bound ■brothers an'executor!*'a ^pointed'to*56 them, but no curator till id-ter a division.</p>

<p>If there be a plea in abatement and oí* the general issue,on Appeal at’ier a udgtnent on the merits, it’ the plea in abatement do not appear to nave been pronounced upon, nor urged by the counsel, the supreme court ‘vil! not notice •⅜.</p>

A^peat. from the court of the parish and citv of New-Orleans. „ The defendant, in February Í789, sold to the plaintiff a negro slave named Jacob, for S714, with the condition, that, if the slave, sick at the time, was not perfectly cured, within one month, he should take him back and repay the price; The parties placed the slave under the care of a free negro, named George, who undertook to cure him, and to whom each of the parties promised to pay ten dollars therefore.

<p>The expenses of the liquida-tionof an insolvent’s estate, are to be puid out of the unin-cumbered property ceded, Insuíñcie'nCout of the rest.</p>

<p>parol evidence may be heard, when the verity or good faith of an act is contested.</p> <p>shew^hat aside tile ktterm'Sllt</p>

<p>When the illegality of a contract is not pleaded, and does not appear from the evidence in support of it, if there be a verdict for the plaintiff, the judgment will not be disturbed, though some evidence of the illegality may result from a cross examination of the plaintiff's witnesses, or from the testimony adduced by the defendant.</p>

<p>the nHminal sum m money, which the par-discharge by ⅛ cotton7 °? An obligation. for a given quantity of cotton is not to be discharged by</p>

<p>Land cannot be affected by any parol contract, except & lease.</p>

<p>The marriage of a slave has its civil effects, on his emancipation</p>

<p>Thebuiety bond, when the principal has failed, is liable lne«ciailn°is-sued against the latter. The surety claiming a tlis-cussion, must pomt out pro-10 Deny and i msh money -lefrav costs.</p>

<p>ment of facts be so imperfect, that court cannot irom it, discover the merits of the case, the appeal be ‘1,⅛¶1⅝⅛ If the state-</p>

<p>The tradition of real estate may be made by the consent of the vendor, that the vendee take possession.</p>

<p>If by a contract of marri* age, land purchased with money reserved as part of the dower, may be sold by the husband with the wife's consent, land in common between the wife and her children by a former marriage, and adjudged to her. at its valuation, cannot be sold under the contract.</p>

<p>If a defendant in execution be discharged on an habeas cor-pvsf the plaintiff may appeal. If tlie plain* tiiffails to make the advance required by law, for the support of a defendant, in execution, the latter cannot be discharged ex parte.</p>

<p>No judgment can be given against a party who is nor in fin"! one!°tinny or [ad^men^by default taken.</p>

<p>The opimoa of the court d quo, in admit-mufiV^tesied, according to the circurnstan-cesof the case, given.* " S a witness'be'Tn-troduced to prove a fraud, but discloses facts, of which parol proof can téd^o^suibbsb is^a'speciai ver-diet, that there is no fraud, and fsets are found, tin judgment nf tor of the party introducing the adverse party does not insist on a new trial, lieved on the ground, that the testimony ought to have been listened to so far only as it tended to establish the fraud.</p>

<p>The dissolution of a partnership does nDt Prevent the partners trom sump.</p> <p>If the agent evidently meant *0'ascertain Pla,ce> _ . and the principal cue ⅛ ano-thcr their srroc prevents any from taI:inS S),sc: The act of the principal, rati-eying-that of the agent is to be liberally con-stuicd.</p>

<p>If there be judgment against an executor, for the debt of his testator, and no property of the estate being found, an execution issues against the property of the executor, lie can-.iot be relieved, without shew-⅛ that ail the Stater whichhe came into his hands has been ■efal'yi adm'n’</p>

<p>A claim fop damages, on ac« count of the defendant’s neglect in managing the plaintiff’s affairs, must be specifically laid as the petition, and will not be auniUed on a petition, which charges only, that the defendant is indebted on an account.</p> <p>A joint owner is liable for ordinary neglect. If he be in the habit of having the common ship insured, and insures his own half only, he will be liable to his co-owner for the</p>

<p>If one undertakes to conduct a newspaper, for a given time, and he quits it before its expiration, because the owner insists on having- a piece printed in it, \Vhich he disap. proves, he cannot recover payment for the time he conducted the paper.</p>

<p>nofbecome°eS ing^'ilegally^" imported into</p>

<p>If the vendor covenant u> clear the estate of an incurn-brance, ínteres; will nr)tbe«i-loavcd on the price till he mkI a>e knowledge of ⅛ dew</p>

<p>if the marriage contract ex« presses that the wife brings as her dowry 82373, in four 11*82200! catueindfumi. ture»th® ,pro' perty ot the slaves passes to the husband.</p>

<p>if the share a part owns! oí a steam boa' be attached, and the others obtain the delivery of the boat to them, on giving- bond to abide the judgment of the court, their liability docs not txceed the interest oí' th e deieiifUnt</p>

<p>A husband may proceed, without his wife, to the partition of the moveable property of a succession accrued to her.</p> <p>Parol evidence cannot be received of the irregularity of the proceedings of a family meeting4 before the pun.di judtee.</p> <p>tvo-.ci If such proceeding's be written in Fn-ucl), thev will aside.</p>

<p>A witness, is not protected from answering a question, on the ground, that he may thereby make himself liable to a civil su.it»</p>

<p>Where a suit is not on trial before «he jury, it cannot be discontinued, without the leave of the court.</p> <p>The owners of a steam boat, which is destroyed by fire, are not liable to the freighters, if it appear, that proper diligence was used, although the accident happened in the night whilst the boat was on a return from a trip up the river t > procure wood, during which she ran aground, while iter hands were getting in wood.</p>

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

<p>The wile has a tacit mortgage for her dower, on any real property sold by her husband.</p>

Six of them haviner successively ranaway, J they brought the present suit for the remission of the sale, alledging that the slaves were addicted to running away, in the knowledge of the defendant, prior to the sale. There was judgment for the rescission of the sale as to the six slaves, who ran away, and the defendant was condemned to the payment of 86500. Both parties appealed.

<p>The creditor of a partner has no right to be placed on the bilan of the partnership copartner.*</p>

<p>The proof of ⅛ rejected, on n appears] to'"*1 propertyobtain-ed, and that the which it u evidence, wa9 contradicted by thfnggiven.'by--dti^the deed</p>

<p>A legatee cannot be compelled to suffer a deduction from his legacy, in order to pay a debt, not established, contradictorily, with the heirs or executors.</p>

Appeax, from the court of the first district. Germain Musson, testamentary executor of James Johnson, an inhabitant of Pittsburgh, instituted the present suit against the bank of the United States, to obtain the surrender cf certain monies there deposited by James Smith, deceas-1 J ed, which funds, he alledged, to be the property of his testator.

<p>testimony is taken clown, under the act ofl 81?, the presumption is, if there be no suggestion of the contrary, that the record contains lithe evidence.</p> <p>If the jury find the issues submitted by the defendant, and on his motion, judgment is entered accordingly, he cannot appeal.</p>

<p>obudnpayment]! {k'^theTATf 1818, without Kiving notice théparty.</p>

<p>Former judgment confirmed</p>

The petition stated, that the plaintiffis a slave of Nicholas Lauve, that Erasmus Robert Avart, made his last will, by which he directed that. immediately after his decease, his testamentary executor (the present defendant) should purchase the plaintiff and her child, and afterwards emancipate them according to law—that Nicholas Lauve is willing to sell the plaintiff and her child, for a reasonable price, wherefore the plaintiff, in order to obtain her freedom, and that of…