Volume 7 — Martin's Louisiana Term Reports (1809–1830)

This is a suit brought on a note of hand, dated 3d June 1813, for $2833, 33, payable in January 1815, on which there appears endorsed May 28th 1814, $166, 66 2-3, leaving a balance on the note of $2666, 66 2-3, which sum together with ten per cent interest from 1st February 1815, is claimed by the plaintiff in his petition.

<p>When everything in an instrument seems right and clear, but the meaning of it is uncertain, the proof of the fact, which may remove the doubt, is admissible.</p>

<p>Actual possession of a part, with title to the whole, is possession of the whole.</p>

<p>Where one party charges another with a culpuble omission or breach of duty, the person who makes the charge is bound to prove it, though it may involve a negative.</p>

This suit is brought to recover the possession of a tract of land consisting of thirty-three arpents front, with ordinary depth, upon both sides of the bayou Têche, in the full enjoyment of which the… Held: and possessed the land in good faith, for upwards of fifteen years. The law says, “a man who becomes possessed of an immoveable estate fairly and honestly and by virtue of a just title, may prescribe for the same, after the expiration of ten years, &c. Civ.

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

<p>When a case is remanded to be proceeded on, after a reversal of the judgment, the district court may act on the verdict theretofore rendered.</p>

<p>The defendent cannot be allowed as a set off, a payment made by him for the plaintiff, unless he shews it was made, at the request of the latter</p>

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

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

<p>When a suit is instituted by a licensed attorney, his want of authority cannot be pleaded in abatement.</p> <p>Licitation is a mode of dividing estates held in common and may be avoided, like any other contract by the parties thereby.</p> <p>A will cloathed with all the requisites of the law, can only be avoided by attacking its genuisement.</p>

<p>A statement of facts, without a date, made as well as is recollected and stating that other facts were proven, which the judge considered as immaterial, is not good.</p>

The singular circumstance attending this case will considerably shorten the argument. The court will see, by a statement signed by the counsel for the petitioner and the defendant, that of the facts and testimony given in this case below, owing to the circumstance detailed no statement has been made out. It is a hard case upon both the petitioner and the defendant.

The plaintiffs stated The plaintiffs statedthat they are the owners and proprietors of a tract of land, described in the petition, sold in 1780 by V. Lesassier to J. B. Macarty, from whom their ancestor purchased it, the same having been possessed and enjoyed by the plaintiffs and those under whom they claim for thirty years and up- wards, and the defendants have, with force and arms, entered on the premises and disposessed them; they prayed that the defendants might be…

moved to have the appeal dismissed, because the whole testimony was not brought up. He showed that one Filhiol appeared by the record to have been sworn, and yet his deposition was not to be found among those of the other witnesses, which had been takeu down by the clerk, in order that they might serve as a statement of facts. moved for and obtained a writ of certiorari.

<p>If the lessee gives his notes for the rent, and afterwards fails, the landlord has a privilege on the goods in the house.</p>

<p>See Weeks vs. M'Micken. 7 Martin, 54.</p>

<p>An appeal lies from the discharge of a rule on syndics to produce their bankbook, &c.</p> <p>In such a case notice ought to be given to all the syndics.</p>

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

<p>A party dissatisfied with the opinion of a court, stating his objection at the time, may draw his bill of exceptions afterwards.</p> <p>A party has a right to demand and have the opinion of the court spread on the record, on any point of law arising in the cause.</p>

<p>An award, in the French language, cannot be homologated.</p>

<p>If freedom be given to a slave, under the express condition that he shall serve his present master, as before, till he die, and he afterwards refuse to serve him, and attempts to compel him to accept a monthly compensation in lieu of his services,—he cannot claim his freedom after the master's death.</p>

<p>If A. promise to B. to do a certain thing and fails, C. cannot maintain an action on this promise, on the ground that the knowledge of this promise induced him to contract with B.</p>

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

<p>If a slave of a bad character is pursued on suspicion of felony, attempts to seize a gun, flies, and is killed in the pursuit, the supreme court will not disturb a verdict for the defendant, who killed him.</p>

Certain depositions taken at Mobile, in Alabama, under a commission issued out of the court below, at the instance of the plaintiff, being offered in evidence on the trial, were over-ruled, on the objection of the defendant’s counsel, for want of due notice of the execution of the commission : from which decision (amounting to a non-suit, there being no other evidence) the plaintiff has appealed.

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

<p>The delegation by which a debtor gives to the creditor a new debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared, that he intends to discharge his debtor, who has made the obligation.</p>

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

<p>Error in receiving or weighing evidence cannot be assigned as apparent on the record.</p>

<p>If the copper be taken off a vessel, this being rendered necessary, on account of the injury she had sustained, the insurers cannot avail themselves of this being done without their consent.</p>

<p>After the jury is sworn, it is too late to move that the suit be dismissed; because the plaintiff did not answer the defendant's interrogatories.</p> <p>The plaintiff may read his answer to supplemental interrogatories, although he failed to answer those originally put.</p> <p>If the same interrogatory be put in the original and a supplemental answer, and the plaintiff having failed to answer it, with the others in the original answer, does so, with those in the supplemental, the interrogatory will not be taken as admitted, but the answer will be read.</p> <p>A strong case must be made out to induce the supreme court to remand a case for a new trial, when no application was made for it below.</p> <p>Answers to interrogatories received by the mayor of New-York, and accompanied by the certificate of the governor, and the seal of the state, are sufficiently authenticated.</p>

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

<p>A factor who has accepted draughts for his principal, has a lien on the goods in his hands, which an attaching creditor cannot defeat.</p>

<p>Application for a mandamus.</p>

<p> Application for a mandamus. </p>

In this case the plaintiffs have attached a quantity of cotton, which the claimants contend is their property, and was so at the time it was attached. The plaintiffs have obtained a judgment against the defendant, for the amount of their demand, from which there has been as yet, no appeal placed on file in this court; and therefore, the only issue in this case is, whether the claimants or the defendant were the owners of the cotton when attached. 1.

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

<p>The appointment of syndics made in the French language, in the proceedings before the notary, is unconstitutional, and not cured by the homologation of the proceedings.</p>

The This is an action on a bill of exchange for £2500, drawn in New-Orleans, on the 23d of March, 1819, by J. Bailey, in favour of the defendant, directed to Messrs. Barclay, Salkeld & Co., of Liverpool; payable thirty days after sight,in London.

<p>When the owner of land keeps works erected thereon by another, he must pay their value.</p>

<p>An heir cannot set aside his ancestor's deed, on the ground, that it was made in fraud of his creditors.</p>

<p>When the English and French part of a statute differ, if the expressions in the former be clear and unambiguous, the latter is to be disregarded. But, if they leave the meaning of the legislature uncertain, the latter part may be referred to, in order to clear the doubt.</p> <p>The decision of the supreme court are evidence of what the law is.</p> <p>It is bound to solve doubtful questions of law and cannot refer them to the legislature.</p> <p>An attorney and counsellor at law is liable to his client for the mismanagement of the suit, even tho' it be done without fraud.</p> <p>But not, if through error of judgment, unless the error be very gross.</p> <p>A judgment is not evidence, against the attorney, of the facts it states.</p> <p>When proper evidence is not offered, the presumption is, not that the attorney neglected to offer it, but that the client failed to procure it.</p>

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

<p>Proceedings against bail need not pursue the form of a new action.</p> <p>Notice by the attorney is good</p>

<p>Possession is prima facie evidence of property, in a bank note.</p>

<p>Credits assigned are liable to attachment for the debts of the transferer, before notice to the debtors.</p>

The appellant instituted her suit against John Mitchell, to recover possession of seven and half inches of ground, front on Dorsiere lane, with the depth of 121 feet, part of a lot of ground, 68 feet front, and 121 depth; which she alleges to be her property, and of which she avers that she has been in possession for twenty years.

on an application for a rehearing. The plaintiff claims the sum of $12,317 99 cents, as the balance of a note of hand made by Marquand and Paulding, in the city of New-York, on the 15th of July, 1814, payable sixty days after date, to his order.

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

<p> The sale of a minor's property must be made at the place, where the family meeting have decided it is most advantageous it should be sold. </p>

<p>A clerk may be a witness for his employer.</p> <p>An account ought to be received in evidence, although, it be not added up, and give in items, what is stated in the petition, as a general balance.</p> <p>A witness may be asked whether the defendant was, or was not in the habit of paying for goods taken up by his children, before the time when those, the payment of which is claimed, are charged.</p> <p>The affidavit of a witness, now dead, made in the absence of the opposite party, cannot be read.</p>

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

The plaintiff and appellee claims the amount of a check of $5900, which was given him, by the insolvent, for the balance of money collected by him, as his lawyer. The payment of it is claimed as a privileged debt. The defendants and appellees contest the existence of the debt; aver that the claim is fraudulent and collusive, and, at all events, that it should not be paid as a privileged debt.

<p>The proceedings of the court of probates of a parish, in which neither the minor, his tutor or under tutor reside, for the sale of his property, are void.</p>

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

The ground of the plaintiff’s action, in this case, is that the defendant, as part owner of the steam-boat Newport, is responsible, in solido, for the amount of damage sustained by her goods, on board the boat. ff. 14, 1, 1, 25, Inst. 4, 7, 2, Curia Philip. tom. 2, lib. 3, cap. 4, sec. 22, 24. The principle is recognised by sir William Scott, 5 Rob. Adm. Rep. 262, and note, 1 East, 20, Wright vs. Hunter ; see the opinion of lord Kenyon.

<p> The ten days which a party has to appeal in, do not run till notice be served on him, of the judgment. </p> <p> This notice cannot be given till after the judgment is signed. </p>

<p>Pleas, which tend to prevent an examination of the case on its merits, cannot be aided by inference.</p> <p>A judgment may be so far final, as to be appealable from without being final, as to the point in issue.</p> <p>A pledge does not amount to an alienation.</p>

This suit is brought by the plaintiff, as heir to his mother, to recover a slave named Lazare.

<p> The act of 1817, does not require that anterior claims be recorded. </p> <p> A promissory note does not work a novation of the debt. </p> <p> But it prevents the effect of the prescription of one year. </p>

<p>Reasonable notice to the endorser is a mixed question of law and fact.</p>

This suit is brought to recover the amount of two years salary, due by the defendant, to the decease. M. Lazare, for his services, as manager, or overseer of the defendant’s plantation; and for another sum of one hundred dollars, due on a promissory note, with the further sum of one hundred and three dollars, for a bale of cotton, belonging to Lazare, which was sold by the defendant on his account.

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

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

Jacob Shuff states, in his petition, that on the 16th of June, 1819, he purchased of one Norris M. Mathews, 20,000 hoop-poles, and the flat-boat in which they were contained, worth, together, the sum of $625; that they were delivered to him by Mathews, and that he employed his labourers some days upon them. He further states, that by virtue of an attachment issued out of the parish court, at the suit of James M‘Cullough vs. Norris M. Mathews, Geo.

<p> Where two suits to compel a “forced surrender” are carried on by different creditors at the same time, the order of a stay of proceedings made on the second application, does not estop the defendant to contest the legality of the first. </p> <p> A “forced surrender” is that which is ordered at the instance of the creditors of an insolvent; whenever the application for relief comes from the debtor it is the "voluntary." </p> <p>This "forced surrender" may be ordered in all cases where the insolvent, being a merchant or trader, is in failing circumstances.</p> <p>But the oath of the creditor alone, is not sufficient to obtain an order, to sequestrate the property of the insolvent, and call a meeting of his creditors.</p>

<p>A minor, under the age of puberty, cannot appear in court by a curator ad litem.</p> <p>A man, who lives with a coloured woman, may be compelled to furnish alimony to his minor children out of his house.</p>

<p>Syndics cannot take possession of an estate on the ground that the vendee fraudulently obtained it from their insolvent.</p>

This suit is brought in pursuance of the provisions of the 46th law of the 2d title of the 3d Partidas;—by which it is enacted, that no man shall be compelled to sue another, unless when he goes… Held: that such words in a contract, are to be understood in their most usual and known signification, and that that signification may be ascertained, as a fact, by parole testimony.

<p>Although there be already some buildings on a lot, the owner of the adjacent one may put one half of the partition wall on his neighbours.</p>

<p>To support the plea of res judicata, the demand must be founded on the same cause.</p>