Volume 8 — Martin's Louisiana Term Reports (1809–1830)

<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 attorney, appointed by a court of probates to represent absent heirs, cannot do so in another court.</p>

<p>An endorser may prove an alteration in the note, made after the endorsement.</p> <p>The maker of a note is to be called upon at his domicil.</p>

<p>When the parol evidence is not taken down in open court, it cannot be used on appeal without a statement of facts.</p>

<p>If A. give goods to B. to sell, and B. pronounce C. an auctioneer to sell them, C. is accountable to B. only.</p>

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

<p>Appeal from the court of the parish and city of New-Orleans. 8 Martin, 618.</p>

<p>If the disease was curable in its origin, but curable in its origin, but incurable at the time of the sale, the case is a redhibitory one.</p>

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

<p>A master may correct his apprentice, but not in a wanton or cruel manner.</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>Creditors, who prove their debts, at a meeting, need not renew the proof, at a subsequent one.</p> <p>A notary cannot certify any thing that happened at a meeting of creditors, otherwise than by a copy of his minutes —if nothing appears there, he must swear.</p> <p>A creditor who was present at a meeting, and did not object to any vote, cannot oppose the homologation of the proceedings, on the allegation that proper powers were not produced.</p> <p>A judgment of homologation must, according to the constitution, contain the reasons on which it is grounded.</p>

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

<p>The capacity and signature of a justice of the peace to the jural, of an answer to interrogatories is not to be certified as the record of a court, under the act of congress.</p> <p>If the defendant do not move to dismiss the suit, for want of an answer to his interrogatory he cannot assign it as error.</p>

<p>It is not necessary for the validity of an appeal bond, that it be signed by the appellant.</p> <p>Admission of a party that he is one of the members of a firm, may be received in evidence, although it appear that articles of partnership exist, & are not produced.</p>

<p>Whether a party, who has not pleaded a release, can have a new trial on his affidavit that he has discovered, since the trial, the means of proving it.</p>

<p>A new trial will not be granted, on the late discovery of evidence to be obtained from the opposite party.</p>

<p>The sale of a is not completed till the notarial act, intended for it, be signed by the parties.</p>

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

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

<p>If the lessee, during the lease, divides the house, and underlets one half of it, and after the determination of the lease, the lessor receives one half of the rent from each party, he cannot afterwards charge his original lessee with the whole rent.</p>

<p>The quantum of salvage is left to the discretion of the original court, and the supreme court will not disturb the judgment, when it does not appear that the discretion was improperly exercised.</p>

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

<p>The assignee may sue in his own name.</p>

Judgment was given in this case, in July 1820, 8 Martin, 486, a few days before the close of the eastern circuit. On the return of the court, in the winter, a rehearing was granted.

The judges having noticed indecorous expressions, in a written application of this gentleman for a rehearing, in the case of St. Romes vs. Pore, determined during the last term, ante 30, requested the clerk to draw his attention thereto. On the report of the latter, that the former declined amending his application, an order was made, that he answer for the contempt.

William Wyer, is called upon as bail of the defendant, Hamilton, to pay the amount of the judgment rendered in this case, in favor of the plaintiff, against the said defendant. Held: that the bail bond is not avoided, where there is no affidavit of the cause of action, or the sum sworn to is not endorsed on the back of the writ, or the sheriff takes bail for more than the sum sworn to and endorsed on the writ. 1 Burr. 330. 2 Wils. 69. 1 H. Black. 76.

Mazureau, the attorney-general, as amicus curiæ, made application for a rehearing, in this case, on the following grounds. 1. The decision is, to all intents and purposes, a definitive judgment. No appeal can be had against it. As such, it ought to contain a reference to the particular law in virtue of which it was rendered. Now the truth is, that it refers not particularly to a law, but generally to the third Partida, which contains 616 laws.

<p>An appeal lies from the discharge of a rule on the sheriff, to shew cause why he does not release attached property.</p> <p>The garnished has a right to retain funds attached in his hands, though he did not expressly admit his having any—having neglected to answer.</p>

<p>If the defendants cede his goods before a judgment against him be signed, the syndics must be brought in.</p>

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

<p>Former judgment amended.</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 plaintiff may sue the surety on a prison bounds bond, without the principal, and before judgment against the latter.</p> <p>The condition of the bond needs not be literally that on the statute.</p> <p>The party cannot object that he was in custody when he signed such a bond.</p> <p>The signature of an officer on a bond which he is bound to take by law proves itself.</p>

<p>Damages allowed for a frivolous appeal.</p>

<p>An order of seizure cannot be obtained on the affidavit of the plaintiff, that the money is unpaid; and of another person, that the endorsement of the note is in the hand-writing of the original payee. If it should, the defendant may have it set aside, on shewing the irregularity, & without denying the plaintiff's right to the money.</p>

The plaintiffs demand one half of the price of a plantation, belonging, in common, to the widow and to the heirs of Charles Melançon, deceased. The payment is resisted, on the ground that the proceedings of the family meeting, which recommended the sale, are not written in the English language. Constitution, art. 6, sec. 16.

<p>If in a commercial partnership it be provided, that real estate shall be chased for the conveniency of carrying on trade, and one of the partners purchases upwards of 20,000 arpents, the purchase will not bind the others.</p>

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

<p>In order that the possessor may unite the possession of his predecessor to his own, that of the latter must have been in good faith—it must be continued, and without interruption—it must be that which he had at the time of the tradition.</p>

The plaintiff, in propriâ personâ. The plaintiff and appellant, claims a tract of land, of ten arpents front, with the ordinary depth on each side of the bayou, or river Conan. His claim is founded on an order of survey, in the name of Marie Antoine, a sale from her to David Case, in whose name the claim was confirmed by the commissioner's report and the act of congress, and a sale from the said Case to the plaintiff.

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

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

This suit was instituted to recover a balance due on a note of the defendant. The defendant pleaded the general issue, and that “he paid the note to one J. S. Edwards, the petitioner's agent.” There was judgment for the plaintiff and the defendant appealed. The appeal must be dismissed, this court having no jurisdiction of it.

The parties respectively are owners of land which adjoin on the right bank of the bayou Rapide, in descending. There is no disagreement as to the point of beginning, which is represented on the filed in the cause by the letter A.; but they differ as to the course of their dividing line.

<p>If A. deliver his boat to B. on his promise to pay two dollars a day, or $200 if she be lost, or he chose to keep her, the last sum will discharge B's obligation, at any time before, or on a demand.</p>

<p>Although the heirs renounce the inheritance, a creditor can not, without obtaining letters of curatorship, obtain an injunction to stay a sale, under execution issued on a judgment obtained against the deceased in his life time.</p>

<p>A bail-bond taken under the act of 1808, 5 c. needs not to be assigned by the sheriff; one taken under the act of 1805. 1 c. must.</p>

The present suit was instituted to recover a tract of land, in the possession of which, the petitioners allege they had been for many years; until the defendant, in January, 1813, by force and arms, took possession of it. They pray that the defendant may be compelled to leave the land, pay damages, &c. The defendant answered, that the facts stated, are untrue.

<p>When the douaire consists in a sum of money, once to be paid, interest is due from the judicial demand only.</p>

<p>If a sheriff sell a runaway slave without fulfiling the formalities which the law equires, and, in consequence, the negro be recovered from his vendee, the latter may recover damages therefor.</p> <p>In such a suit, notice to the sheriff of the former suit need not be, proven to have been given him, that he might defend his vendee, but he may shew any thing which his vendee might have shewn to resist the claim of the former owner of the negro.</p>

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

<p>It is no objection to the reading of an instrument, that the witness who proves the party's handwriting (his mother’s) was young at the time, that she has been dead long ago, and that he does not well read handwriting.</p>

<p>The limits of the post of Rapides never having been correctly defined by any act of the Spanish government, they must be taken as they were recognised de facto by the officers of that government and those of the late territory.</p> <p>A plat of survey never returned to the proper office, does not bind third persons.</p>

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

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

<p>A party sued for giving a pass to the plaintiff’s slave, whereby she escaped, may give the freedom of the negro in evidence.</p>

<p>If a curator ad bona be appointed while all the heirs are present, altho' the appointment be illegal, the person appointed is answerable as then agent.</p>

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

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

<p>A deposition must be reduced o writing by the deponent, the magistrate who receives it, or an indifferent person. It is inadmissible, if it be in the handwriting of the party who offers it, or that of his attorney.</p>

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

<p>The vendor cannot have an order of seizure after the failure of the vendee, but must be paid by the syndics.</p>

The only question raised in the case, is whether the defendant having, as agent of the plaintiff, and under his authority, received the rents of a plantation for several years, and having accounted… Held: that a collector of tolls, though illegally appointed, without the forms prescribed by act of parliament, may recover, upon an account stated, the amount of tolls for which he had credited the defendant.

<p>On the failure of the debtor, creditors cannot resort to property on which they have a lien in the hand of third persons, until they have previously discussed the proceed for which that property was sold, in the hands of the syndics.</p>

<p>A writ of sequestration is not the proper remedy to compel the appearance of an absent debtor, and obtain a judgement for a debt.</p> <p>The want of citation, in the mode prescribed by law, is a fatal objection to proceeding by attachment.</p>

<p>After a justice is out of office, he cannot certify any proceedings theretofore had before him.</p>

This case was determined in July term, 1820, it was not printed with those of that term, a rehearing having been granted, when they were committed to press. 8 Martin, 483. Fouque is supposed to have been properly rejected, because he is the father of the plaintiffs’ wife, under the Civ. Code, 312, art. 248.

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

<p>When a commission issues to any magistrate of a county or parish, the official capacity of the person who makes the return must be shewn, although he subscribes himself a magistrate or justice.</p> <p>If a clause is susceptible of two significations, it should be understood in that which will have some effect, rather than that in which it will have none.</p>

Timothy Dow being a creditor of Nathaniel Olcott, to the amount of $ 1800, or upwards, made an agreement with Olcott, by which his effects and stock in trade, in a grocery store, were to be sold to Dow, and credit given according to the appraised value.

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

An attachment was instituted and executed on funds in the hands of John Rogers, the appellant.

Seghers, on an application for a rehearing. This court has determined that the testimony of Fouque ought not to be rejected, on account of his affinity. To this decision the plaintiffs respectfully submit. But there are two other grounds of exclusion, on which they beg leave to call the attention of the court. The first, that Fouque is the vendor of the slaves on which they have a lien, and that therefore is excluded from being a witness in the cause.

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

<p>When the respite is granted the stay of proceedings, which preceded, cannot operate as a bar to an action for the breach of the conditions on which the respite was granted.</p>

This case was determined in February term, 1821, but a rehearing was afterwards obtained. The first opinion was delivered by judge Porter, as follows :— This suit was brought on the allegation of redhibitory defects in property, constituted in dower by the defendant, on his daughter, wife of the plaintiff. The cause was submitted to a jury, who found for the defendant. There was judgment accordingly, and the plaintiff appealed.

<p>A forced surrender cannot be obtained on the oath of the applicant alone.</p> <p>An order for a stay of proceedings, and a call of creditors, make them all parties, and any of them may come in and shew that he is injured thereby.</p>

<p>The clerk's certificat that he has given a true transcript of the record, does not enable the supreme court to examine the facts of the case.</p>

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

<p>When the proof is not conclusive, and the court is called on to decide on which side it preponderates, it must draw such conclusions as are best supported by the evidence produced.</p>

<p>A power of attorney to administer on the principal's property does not authorise the agent to sell slaves.</p> <p>No particular form is required in a letter of atterney, it is sufficient if the principal distinctly expresses his will.</p>

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

<p>The invoice, accompanying the bill of lading is not per se evidence of the quantity and value of the goods.</p>

<p>The act of 1817, directing the proceedings to be pursued in cases of voluntarily surrender, does not govern those which are forced.</p> <p>Syndics must be appointed by the majority of creditors in amount, and if the claim of those offering to vote is disputed, it must be proved, as in ordinary cases, by legal evidence.</p> <p>Claims of creditors may be investigated previous to the appointment of syndics.</p> <p>In cases of forced surrender all the creditors are at once plaintiffs and defendants.</p> <p>When the amount due to a creditor is disputed, the party opposing it has a right to demand a jury for the trial of the facts at issue.</p> <p>An endorser, who has not paid his endorsee, cannot be permitted to vote at the deliberation of the creditors for syndics.</p> <p>The oath of an agent whose knowlege of the amount due his principal, is derivative, is not legal evidence of the debt.</p>

<p>To authorize a party to give in evidence circumstances not immediately connected with the matter in dispute, they must be of such a nature as to produce fair and rearonable presumption of the facts at issue.</p> <p>A note neither proved to have the signature of the president of cashier of the bank, or acknowledged by them cannot be laid before experts as a ground of comparison.</p> <p>A witness may be examined whether the engraving of a note is similar to those which are avowedly genuine.</p>

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

<p>Proof of notice to an endorser is essential to a recovery against him.</p>

This suit was instituted by the plaintiffs, executors of Charles Norwood, deceased, to recover from the defendant, A. L. Duncan, the sum $6000, deposited in his hands on the 21st of December, 1816, by C. Norwood, as security for whatever balance might appear to be due by him, as one of the executors of the estate of the late William Marshall, of Baton Rouge, on a final settlement. See the receipt of A. L. Duncan, annexed to the record.

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