Volume 5 — Martin's Louisiana Term Reports, New Series (1821–1830)

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

<p>A church-warden is an admissible witness in behalf of the corporation of a church.</p>

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

<p>The counsel for the absent heirs needs not any specific authority to institute a suit, under the 1207th article of the Civil Code.</p>

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

<p>The transfer of a debt vests only an inchicateright and till notice to the debtor, it may be sued by & creditor.</p>

<p>On an application to dismiss a tutor, evidence may given of his incorrect conduct on transactions with other persons when they have been specifically stated in the complaint.</p> <p>He cannot be allowed to shew that the petitioner (who does not solicit the tutorship) lives with a woman of color</p> <p>On a charge of bad morals in the tutor and of such neglect as endangers the miner's property, evidence cannot be given of the neglect of their education</p> <p>It is not a good ground for the removal of the natural tutor, that he failed to make an inventory in ten days after his appointment.</p> <p>Neither is his insolvency before his appointment, a cause of removal.</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 fifth district.</p>

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

<p>A purchaser at sheriff's sale cannot obtain the cancelling of the twelve month bond, on the ground that she acquired no title, unless she be evicted.</p>

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

<p>Appeal from the court of probates of the Parish of St. Mary.</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 fifth district.</p>

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

<p>The certificate of the notary, that he notified the endorser by express, altho' read without opposition, does not establish a legal notice.</p>

<p>The petition may be amended by praying for the restitution of the property, instead of the payment of its value.</p>

<p>The party in possession is not to be dismissed, on his disclaimer, till he call in his lessor to contest the plaintiff's right.</p> <p>The lessor is bound to intervene, to prevent judgement against his lessee, tho' the suit be not in his, the lessor's domicil.</p>

<p>If the endorser of a note plead the general issue, want of notice and fraud, his counsel has not the right of opening the case to the jury.</p>

<p>Interest on a twelvemonths bond, is to be paid at the rate of ten per cent. if by the judgment the debtor was to be charged at that rate, till payment.</p>

<p>P. P. of the kingdom of France,” is a sufficient stating of the plaintiff’s residence.</p>

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

<p>After the proces-verbal of the meeting of the creditors of an insolvent is closed, the notary cannot, on a subsequent day, receive the votes of creditors who did not meet.</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 fifth district.</p>

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

<p>Where a certiorari has been granted to obtain the judge's certificate, due diligence must be used to have it returned, or the appeal will be dismissed.</p>

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

<p>When no question of law arises in a case, the verdict is not disturbed unless manifestly erroneous.</p>

<p>A deed cannot be set a side as fraudulent by a creditor who becomes such after the date of the alienation, unless it be proved it was made with an intention to defraud future creditors.</p>

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

<p>Where the appellant without any fault of his, is unable to bring up the case, so that the merits can be examined, the cause will be remanded for a new trial.</p>

<p>The judge of probates may certify the record at any time after judgment.</p> <p>A legacy of so much money in a drawer, is only good for the sum found there at the decease of the testator.</p>

<p>A judgment is not final until signed by the judge.</p>

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

<p>Citation of appeal must issue in the name of the state.</p>

<p>In a suit for land where the pretentions of the parties are alike in law and equity, he who is in possession will prevad.</p>

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

<p>When a judgment dissolving an injunction is given on a plea to the merits, it forms res judicata on the matters at isseu.</p> <p>Writing is not of the essence of a contract but the evidence of it.</p>

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

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

<p>An appeal will not be dismissed because the appeal bond is given to B & A, instead of A & B.</p>

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

<p>The party who calls a witness, and examines him in chief, cannot afterwards object to his competency.</p> <p>Compensation may be pleaded in case of insolvency, when the credit accrues before bankruptcy, and is unattended with suspicous circumtances.</p>

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

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

<p>An attorney may be called on by his clients's adversary, to testify in the cause in which he is employed.</p> <p>A payee and endorser of a note is a good witness to prove that he acted as agent for another in taking the note payable to himself.</p>

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

<p>The defendant cannot resist the plaintiff's claim for his the plaintiff's negro,and the hire, on the ground that there was no demand.</p>

<p>The purchaser of real estate by public act, cannot be affected by a previous alienation sous seing prove, which was not accepted by the person in which favor it was made.</p>

<p>When a debt is due at several instalments, and the transferee of the second causes the property to be seized & sold, the purchaser at the sale cannot be disturbed by an action at the suit of a creditor to whom the first instalment was assigned. How the proceeds of the sale should be divided quere.</p>

<p>An attachment may issue to compel the attendance of a witness without an affidavit of his materiality, where the issueing it will not delay the trial of the cause.</p>

<p>Where the motion for a new trial is not shewn by the record to have been made before the judgment was signed, the cause will not be remanded, because that notice does not appear to have been acted on.</p>

<p>Surrender of an obligation will not produce novation if the evidence shews it was not intended to revive another debt lien of it.</p>

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

<p>An agreement by which A sells cotton to B, on condition that the latter shall take it to another place, sell it, and pay over the proceeds to the creditors of the vender, is not a contract of sale.</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>The copy of a copy is not good evidence without accounting for the absence of betterproof</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 probates of the parish of Catahoula.</p>

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

<p>If the mortgaged premises are rendered less valuable by the acts of a third possessor, he will be responsible to the mortgagee</p> <p>Erecting works on a tream of water, by which a mill previously placed there is prevented working is illegal.</p> <p>And it is immaterial whether the obstruction is created by preventing the stream from descending, or by throwing the water back on the old mill, so that it cannot work.</p>

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

<p>A debtor cannot be compelled to pay several transferees to whom the creditor may have assigned separate portions of the debt.</p>

<p>Whether the endorsee take up a note by payment or by novation, his recourse against the endorser is the same.</p> <p>A witness swearing that he had no re collection of giving the notice of a protest, except from the memorandum on the back of it, but that he had no doubt he had given it, or he would not have made such a memorandum, is legal proof that the notice was given</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 seventh district.</p>

<p>Property subject to mortgage for principal and interest of the price of a tract of land, is not subject to a demand for interest on interest growing out of a subsequent agreement of the parties.</p>

<p>Notice to take depositions need not be personal, it may be left at the domicil.</p>

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

<p>When the will does not give seizin to the executors, they are all entitled to commission only on the sum which came into their hands to pay debts and legacies.</p> <p>A donation of community property, by the husband to one of the children, must be collated one half to the father's estate & one half to the mother's.</p>

<p>Should the lessor not appear when cited by the lessee, the right of possession on alone can be tried.</p> <p>The absence of an attorney without good cause shewn for it, is not a ground of continuance.</p> <p>There must be 20 names in the box before the clerk can proceed to draw a jury.</p>

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

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

<p>When in the sale of a tract of land there is error as to the quantity contained within certain limits, but none as to the limits, the vendor cannot claim any land lying within these limits.</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>Where the title of slaves, alleged to be given by the father to the son in-law, in consideration of marriage is at issue, declarations of the wife are not good evidence.</p> <p>If the party claims under the laws of another state, and fails to prove them, the case will be decided by those of our own.</p>

<p>If a widow renounces her rights under a will, the idea that she is entitled to one half of it in her own right, and it afterwards appears she was in error as to the extent of her claim, the renumeration will not bind her.</p>

<p>When distinct claims against distinct defendants, are presented together to a jury, and they find generally, the verdict will be set aside.</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 probates of the city and parish of New Orleans.</p>

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

<p>The party calling a witness cannot object to his competency.</p> <p>The partner of a firm other than a commercial one, is a good witness for his co-partner.</p>

<p>The surety on an injunction bond cannot resist payment on the ground that the plaintiff did not record his judgment.</p> <p>An alias fi. fa. does not operate a discontinuance of the original writ of execution.</p> <p>The estimation of property seized in execution, does not preclude the creditor from shewing its real value in a suit against the surety.</p>

<p>The insured is not obliged to communicate a fact respecting the situation of the port of destination, the knowledge of which was equally within the reach of the insurer.</p> <p>Whether an article be perishable in its nature, or not, is to be ascertained by the usage & custom of the port where the goods are shipped.</p> <p>The particular enumeration of perishable articles in an ordinary policy does not prevent the insured from shewing, under the general clause, the other articles are perishable.</p>

<p>In an action against one executor of an estate, a co-executer may be called as a witness by the plantiff.</p> <p>So if he has been discharged from his office he is a good witness.</p> <p>If an executor who has become insolvent, is sued in the court of probates for notes and obligation belonging to the estate, and it appears he has transferred them, the cause must be cumulated with the proceedings to the concurso.</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>The teller of the bank, who has overpaid a check, is a good witness without a release.</p>

<p>Whether an attorney for an absent debtor can confess judgment. quere.</p> <p>The money in the garnishee's hands, cannot be taken from him before final judgment against the defendant in attachment.</p>

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

<p>A new trial may be prayed for, after 3 days, if the judgment be not signed.</p> <p>If a party is bound to furnish an account, his adversary may use that part of it which is against him, without being compelled to admit the items in it that are in his favor.</p>

<p>Proof of the dissolution of a partnership need not be in writing.</p> <p>An authority to a partner to settle the affairs of the partnership, does not authorise him to endorse notes belonging to it.</p>

<p>When the record enables the court to act on the merits, their attention may be drawn, without a formal assignment, to any error in the proceedings, after ten days have expired from the filing of the record.</p> <p>A bank may be sued by one of the stockholders, for his dividend, before the charter has expired.</p> <p>The authority of the attorney-general to prosecute or defend any suit in which the state is concerned, results from his office, and is expressly given by statute.</p> <p>Altho' the charter constitutes the board of directors judges of what dividend they should order, yet, if in the exercise of that or any other power confided to them, they abuse it,courts of justice will control them.</p> <p>The profits made by the Louisiana Bank, on the sale of the state bonds, are to be divided like any other profits, made by it in ordinary transactions.</p> <p>The object for establishing a bank with corporate powers, is not merely the division of profits among its members.</p> <p>The directors of the Bank of Louisiana,in selling the bonds of the state, had a right to pledge the faith of the institution that the profits arising from the sale should not be divided until payment was made by the state of her bonds to that amount, and the contract is binding on the state.</p>

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

<p>A conveyance alleged to be fraudulent, cannot be tried by seizing the property as belonging to the vendor and setting up the fraud as a defence.</p> <p>An action must be bro’t to annul the conveyance.</p>

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

<p>When the proof leaves the merits doubtful, the court will not interfere with the verdict.</p>

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

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

<p>When it becomes necessary to place goods in launches to transport them from the ship to the port of destination, they are at the insurer’s risk until landed.</p>

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

<p>The state of an insolvent may be taxed with the fee due the attorney who filed the bilan.</p> <p>But the compensation cannot exceed 250 dollars.</p>

<p>When one of the judges of the supreme court is unable to sit in a cause and the other two differ in opinion, no judgment can be rendered, nor is that of the court below affirmed by the failure to reverse.</p>

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

<p>The vendee of a track of land to which was attached a right of pre-emption of the land in the rear, and who, while in possession, bought the same from the U.S. remains the proprietor thereof, tho’ the sale to him of the front tract be subsequently rescinded.</p>

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

<p>An act sous seing prive, not followed by actual delivery, has no effect against third persons.</p>

<p>Service of citation of appeal the attorney of the appellee, is not sufficient, unless it is shewn the latter was absent from the state.</p> <p>Nothing will cure want of citation, and appearance & pleading to the merits.</p> <p>It is not a good service of a citation of appeal, that it may be made on a curator ad hoc when the party dies pendente live. His heir should he cited.</p> <p>Married women cannot, under any circumstances, become sureties for their husbands.</p>

<p>The publication in the State gazette is not a promulgation of the acts of the legislature, under the provisions of the civil code.</p>

<p>If A recommends to, B, C stating that he is an honest man and would pay the debt: he might in contract, in case of C's insolvency, A is not responsible.</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 action, by a workman, for the price of a boat, cannot be defeated by shewing that there is a suit pending against him for damages in another state.</p> <p>If, after the work is commenced, the contract for which was reduced to writing, a subsequent agreement is entered into by parol, it may be proved by oral testimony.</p> <p>Depositions in another state, taken under a rule of court of this, must pursue the rules prescribed by our law.</p> <p>If the cause be submitted to a jury, and they do not find interest, the court cannot add it.</p>

<p>After 4 verdicts on question of fraud, the court will not remand the case for a new trial, tho' it differ in opinion with the jury.</p>

<p>The sentence of a foreign court of admiralty, is conclusive on the matters on which it decides.</p> <p>But in an action between the insurer and insured, the court may examine whether the tribunal who condemned was rightfully constituted by the law of nations.</p> <p>But the regularity of its proceedings cannot be gone into.</p> <p>Whether, on a change from one form of government to another, the authorities and laws of the previous one exist until the new government goes into operation. quere.</p> <p>Under the clause in a policy, warranted free from loss which may arise from engaging or being engaged in illicit trade the insurers are not responsible for all risks until the goods are landed.</p> <p>The authority of nation cannot extend beyond her own limits, but she may guard against approaching injury beyond them.</p> <p>Any regulation extending the powers of a belligerent nation beyond those conferred jure belli, can only have effect within her own limits, and a breach of them must be considered a violation of municipal regulations.</p> <p>A condemnation jure belli, and for a breach of municipal regulations will falsify the warranty by which the insurer was protected against loss from illicit trade.</p>

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

<p>The shipper of goods is not responsible for the cost of defending the ship & other property on board, which is seized and prosecuted for illegal trade.</p>

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

<p>A sheriff who seizes property not subject to execution, is liable to an action for damages.</p> <p>A party may always have an injunction when the act would give rise to a claim in damages.</p> <p>He who interpleads, cannot change the nature of the action in which he intervenes.</p>

<p>If an agent who is directed to remit in a bill, sends one which is not purchased by him, but which is received by him in payment of a sale of his own property, he is liable in case the bill is not paid.</p>

<p>If letters of curatorship be granted without legal citation, they will be annulled at the sui of any person interested.</p>

<p>If the sheriff actually swore to his return of a citation of appeal, and the clerk omitted to add the jurat, the appellant has a right to have the omission supplied.</p>

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

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

<p>The copy of the probate of a will is the copy of a judicial proceeding, which must be certified under the act of congress of 1790.</p>

<p>A woman cannot be surety.</p> <p>The provisions of the spanish law prohibiting it are not repealed by the Civil code.</p>

<p>An executor is not suable in the court of probates, on his endorsement of a note payable to the estate.</p>

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

<p>Suit may be brought without the privity and in the name of the party who transferred it, for the use of the transferee.</p>

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

<p>A party is liable personally, tho' credit was refused him and the promise of a third was required.</p>

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

<p>In case of total loss, the assured must abandon within a reasonable time.</p> <p>And whether the abandonment was made within a reasonable time, is a proper question to be submitted to the jury.</p>

<p>Opposition on an application for a mandamus.</p>

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

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

<p>The liability of a tutor is not affected by his neglect to give bond and security.</p>

<p>A person who is a partner of the defendant, in a particular adventure, for which he has advanced the funds, will have a preference, on the object of such adventure, over attaching creditors of defendant.</p>

<p>A father who is not indebted, may purchase property for his child, and in its name, and subsequent creditors cannot attack the act as fraudulent.</p>

<p>If a suit be brought to recover slaves which are cover slaves which are named in the petition of the plaintiff and the defendant admits that he is in possession of slaves as designated in the petition, it is prima facie evidence the slaves sued for, and possessed are the same.</p>

<p>Insurers are responsible until the vessel is moored in good safety at the port of discharge.</p>

<p>Sickness of the principal counsel is a good cause for a continuance.</p>

<p>Plaintiff cannot take a pursuit after a general verdict.</p>

<p>The parish court has jurisdiction of a claim for 300 dollars, and may give judgment for that sum and interest from judicial demand.</p> <p>And of such case the supreme court has jurisdiction.</p>

<p>A party interrogated on facts and articles, is not compelled to answer categorically, if he swears that his memory will not permit him to do so.</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>Note payable to as administrator, authorises a suit by the payee in his own name.</p> <p>A final judgment in a sister state, authorises the plea of res judicata in this.</p> <p>An affidavit asserting a belief that a witness is material, will not authorise a continuanee.</p>

<p>Laws are never presumed to have a retrospective operation.</p> <p>Notes taken up with the endorser’s name in them are prima facie evidence of payment by the maker.</p>

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

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

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

<p>If the jury give their verdict for a sum with interest, the court may ascertain the period of its beginning, in the judgment.</p>

<p>An act which has not the signature of the notary or parish judge, is not authentic.</p>

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

<p>If the bill of sale acknowledges payment of the price before the sale, and two days after the vendee give bills to the vendors, which are protested, the sale is not to be rescinded, even in an allegation of fraud, the vendors having no funds in the drawer's hands, if the latter were in the habit of accepting the vendor's bill.</p>

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

<p>An executor may novate a debt of the estate.</p>

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