Volume 6 — Martin's Louisiana Term Reports (1809–1830)

The petition stated that the plaintiff purchased, from the executor of Boisclair, a lot of ground of sixteen feet in front, with a depth of forty-five, having a right of passage and entry of four feet, in width from the front, along the whole depth, over the next lot, which belongs to the defendant, whose house covers, in its whole depth, twenty-one inches of the passage to which the plaintiff is entitled : that the defendant refuses to clear the said passage, so that the…

<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>The vendor, who has not delivered the goods, cannot maintain an action for the price.</p>

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

The plaintiffs and attaching creditors in this case contend that their attachment must be sustained— 1. Because the intervening claimant, Jos. Held: other property or effects of the defendant; but that Sweetser had placed in his charge other goods as per invoice. No proof in the cause contradicts the answer of Hyde ; on the contrary supports him. It is equally clear from testimony, that the goods were only placed in charge of Hyde, during the absence of Sweetser.

<p>The vendee of real property, though liable to an action of mortgage, is personally liable on his promise.</p>

<p>If a sheriff levies an execution on property of a third person, the sale may be enjoined, by the judge of the district in which the seizure was made, although the execution came from another district.</p>

<p>A creditor, opposing the homologation of the proceedings, must state specially, the grounds of his opposition and is not allowed generally to alledge irregularity.</p>

<p>Vol. 7,524,712.</p> <p>Rehearing denied.</p>

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

<p>A woman has a right to sue the estate of a man, who married her, his first wife being still alive, for her services in his house, the use of her furniture hire of her negroes,monies of her received by him. and debts of his paid by her, since his death.</p>

Stodder and Hewitt, merchants of this city, having become insolvent, the judge whom, they petitioned for the benefit of our laws of insolvency, thought fit to appoint me to defend the… Held: upon the authority of Ulpian, in l. procuratoris, § plane, ff. de tribut. act. D. 14, 4, 5, 17, and upon the general rule that where credit was given, the property was transferred, that the vendor of merchandize, sold on a credit, must enter into contribution as a general creditor.

<p>An insolvent cannot contest the legality of the choice which his creditors make of syndics.</p>

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

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

<p>The demand must be made at the dwelling of the maker of the note.</p> <p>If an endorser' ignorant that no demand was made of the maker promises to pay, he will be relieved.</p>

<p>The laws of Spain require the presence of five witneses to the emancipation of a slave, by parol.</p> <p>If an informal emancipation takes place, the master promising to comply with the legal formalities, his rights are not thereby affected, before the formalities be observed :</p> <p>A record of such an emancipation, in this state, does not affect these rights.</p> <p>If a slave procures his discharge by habeas corpus, the master is not thereby precluded from establishing his right.</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>Damages allowed, when the appellant does not procure a statement of facts nor assign any errors.</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>Appeal from the court of the second district.</p>

Samuel Winter, a native of New-York, having migrated to this state, amassed by his own industry a considerable fortune. In the year 1812 he returned to the state of New-York, where he made a will according to the laws of that state, instituting as his exclusive heirs, and by an universal title, his brothers and sisters.

<p>Parol evidence cannot be admitted against the contents of a bill of lading.</p> <p>Under the general issue, the defendant cannot give a another contract in evidence.</p>

<p>If questions of law are submitted to the jury to be specially found, their finding ought to be disregarded.</p> <p>If answers to interrogatories are sworn to abroad, it ought to appear that the officer has authority, by the laws of the country, to administer oaths.</p> <p>If the answer does not appear to be properly sworn to, it needs not be excepted to as an insufficient answer.</p>

<p>Parol evidence cannot be given against the contents of a deed.</p> <p>If a party gives part of a conversation in evidence, the other has a right to draw the whole of it out, on the cross examination.</p>

The plaintiff claimed the freedom of her children, under a deed from her former master, the defendants’ ancestor. They pleaded the general issue. There was judgment for them, and she appealed.

<p>A bid, at a sheriff's sale must be followed by a tender of the money ; otherwise it may be disregarded.</p>

The defendant, on the 5th of April, 1810, purchased, at a sheriff’s sale, eight slaves, part of the estate of V. Dufour, deceased. Held: that the sale produced is a legal sale, under that judgment, and was properly received as evidence, under the plea, with the explanation given by the production of the record, in the suit of Camfrancq, against the same defendants.

<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>Whether the payee and indorser of a lost note be a legal witness to prove it ?</p> <p>The acknowledgement of the maker of a lost note, suffices to prove it.</p>

The petition charged that the plaintiff's slave was beaten and wounded by the defendant’s, so that he died ; that the defendant’s slave was tried therefore, and found guilty. Wherefore the plaintiff claimed the sum of 1200 dollars, the value of said slave. The defendant denied all the allegations in the petition. There was judgment for the plaintiff, and the defendant appealed.

<p>Appeal from the court of the parish and city of New-Orleans.</p> <p>The plaintiff sued for her freedom ; there was judgment against her, and she appealed.</p>

Appeal, from the court of the first district, This case was remanded by this court, at January term last, for a trial by jury. 7 Martin, 315. The parties submitted the following issues to the jury : 1.

This is an action of revendication, for the recovery of thirteen bales of cotton, which the plaintiffs claim as consignees, for the benefit of their principal, W. King of Mississippi.

<p>If the plaintiff aver a faithful compliance with his part of the contract, and the answer allege generally a violation of it, the defendant may give evidence of a breach.</p>

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

<p>Property, under an attachment, cannot be mortgaged by the debtor so as to defeat the attaching creditor's lien.</p>

<p>A debt is liquidated, so as to be susceptible of being set off, when it appears that something, and how much, is due.</p>

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

The petition alleged that the plaintiffs sold the defendant, one hundred barrels of flour, half fine and half superfine, at 13 dollars per barrel, then lying in their warehouse ; that in order to accomodate him, they agreed to suffer the flour to remain there for a few weeks, and he promised to pay a part of the price in a few days after the sale (May 21, 1817) and the residue at, or before, the removal, which he promised to effect within weeks ; that they frequently applied…

The plaintiffs stated that they sold, by J. K. West, their agent, a quantity of merchandise to the insolvent, to the amount of $4313 57, according to the account… Held: that when a term of credit has been expressly agreed upon, the delivery, made in consequence of the contract, tranfers the property to the purchaser. The counsel seems to have confounded the question of property, with the question of privilege. We do not dispute the point of property with the defendant.

<p>A judgmentset aside by the parties.</p>

The plaintiff obtained an order of seizure and sale of the defendant’s property, which was suspended on the answer of the latter, who therein put interrogatories, which were answered by the former, who on the next day, obtained a rule that the defendant shew cause, on the sixth day then following, why the order suspending the sale should not be set aside.

At the trial the plaintiffs introduced, as evidence, the record of the suit in which they recovered judgment against Fouque, and a certified copy of the inventory of their mother’s estate. The defendant introduced the will of the plaintiffs’ mother, the record of the proceedings of Fouque against his creditors, and the record of the case of Fouque’s syndics vs. Vignaud, the present defendant. At the trial, the defendant offered Fouque as a witness.

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

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

<p>If a note, not payable to order, given in payment of payment of goods be mislaid, and the defendant does not plead payment, the court will be satisfied with slight evidence of its being mislaid.</p>

Several suits were brought by attachment against this defendant, his property was taken thereon, and judgments were rendered in the respective suits for the plaintiff's. The plaintiffs, in the present suit, obtained a rule against the plaintiffs in the other suits, to shew cause why the proceeds of the property attached, should not be applied to the discharge of thier judgment. Thomas Holt & J. Goddard, two of them, shewed cause, and prevailed in the district court.

C. de sent, 1, 13. Etenim non tam apectandum quid Romoe, factum est, quam quid fieri debuit. ff. de offic. proet. l. 12. In this respect, the Spanish law agrees with the Roman law. The princes who have preceded us, and we have been pleased to decide that a madman may make a last will, during his lucid intervals, though the ancients entertained some doubts about it.

In this case, the facts are that the plaintiff, being a minor then aged of four years, in the year 1792, her guardian Antonio Mendez, purchased a lot of ground with a small house thereon for her benefit, the price of the said lot being a sum of money received for a slave sold by the guardian.

<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>

This is a suit brought to annul a pretended sale made by Charpentier, sheriff of St. Mary’s, to Barrabino, of a tract of land, lying in said parish, and to have his possession of it quiet ed and assured.

This suit is brought upon a note hand, drawn in a negociable form by the defendants, and payable to one Miles, two months after date. The note is dated 23d Sep. 1818. It was endorsed on the 25th Nov. following. At the time the note was given, certain documents were put into the hands of Miles, the original payee, which, if collected, he engaged to apply to the note.

<p>If the question be one of fact and the defendant has had the verdicts of two juries, in an action grounded on a tort, the supreme court will not determine it against him unless the case appear most clearly for the plaintiff.</p>

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

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

<p>A surety, who pays the debt, is subrogated ipso facto to the rights of the creditor.</p>

<p>If husband and wife by their marriage contract, give to the survivor the property of the party first dying, provided there be no child born, the donation is revoked by the birth of a child and not revived by his death,</p>

<p>A defendant who removes into a parish, buys a house and lives there, for three months, without having left any property in the parish he moved from, cannot plead that he is suable in the former parish only, not having yet acquited a domicil in the other.</p> <p>The endorser of a note not negociable, is nbot suable before the insolvency of the drawer.</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>It may be legally stipulated that in case a note be not paid on the day mentioned, interest shall be paid from the date.</p> <p>A widow cannot claim a discharge from the debts of the community, if she does not comply with the requisites of the law.</p>

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

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

<p>If the process of attachment be set aside and a citation have in the mean while been served, the plaintiff is entitled to a judgment by default.</p>

<p>This case turns on a mere question of fact.</p>

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

<p>The commissioner's certificate is no evidence of title against an individual, claiming the land, under title or possession.</p>

<p>A wife who does not renounce in due time, to the community, is liable to one half of its debts.</p>

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