Volume 8 — Martin's Louisiana Term Reports, New Series (1821–1830)

<p>The rate of interest to be paid from the date of a note may be legally stipulated, according to the law of the place where the note is made, altho' it be payable in another, where the stipulation of a lesser rate is alone legal.</p>

<p>If on a comparison of the day of acceptance, the day designated for payment, and the tenor of the bill, it appears the days of grace were included with those of sight, between the day of acceptance and that designated for payment, that day is the peremptory one of payment, and protest on it is legal.</p> <p>If the acceptance be not dated, parol evidence is admissible to shew on what day it was made.</p>

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

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

<p>In a sale under execution, if the terms be that as goon as the buyer pays,the title will pass; he must pay before he acquires it.</p>

<p>The landlord’s privilege is not lost, by the curator’s removal of property subject thereto.</p>

<p>The words of a prison bound bond need not be essentially the same, as those of the form in the act.</p> <p>The sureties on it, cannot discharge themselves by surrendering the principal.</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 third district,the judge of the second presiding.</p>

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

<p>If the matter in dispute, be under the value of $300, the supreme court cannot act on the case.</p>

<p>The judgment must follow the verdict.</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>A slave under thirty years of age cannot be presumed to have been emancipated.</p>

<p>The surrender of goods by the payee, is a good consideration for the note.</p>

<p>Authentic acts are full evidence against the parties and those who claim under them.</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 parish and city of New-Orleans.</p>

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

<p>Appeal from the court of the third district, the judge of the fourth presiding.</p>

<p>In mere question of facts, the decisions of the inferior judge has much weight.</p>

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

<p>Appeal from the court of the second district, the judge of said district presiding.</p>

<p>A curator cannot compensate a claim of the estate, with a debt due to a firm of which he is a member.</p>

<p>When the evidence is not conclusive, the not disturbed.</p>

<p>Evidence may be received to support a plea of tender, in which the time is not stated.</p> <p>When the court is not satisfied with the verdict the case is remanded.</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>If on a verdict, there be judgment for the plaintiff, and on an appeal the court thinks it ought to have been for the defendant, the former may be indulged with a new trial, altho' he did not ask below.</p>

<p>The sentence of a court of probates admitting a will is prima facie binding.</p> <p>The copy of a sheriff's deed is no legal evidence till the absence of the original be accounted to</p> <p>A sheriff's must be supported judgement.</p> <p>The plaintiffcannot recover</p>

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

<p>The claim of the buyer against the vendor in warranty, in case of eviction, under the old c. code is defined at page 354, art. 54, which determines the manner and amount of restitution.</p> <p>Interest does not run, in case of eviction, until the warrantor is put in mora, by demanding the sum, which is the price of the thing evicted.</p> <p>When the demand of the sum which is the price of the thing evicted, is made, interest is due only, as in case of an ordinary debt; and interest runs from the time of the demand.</p>

Fux sued King for $426 and interest, the price of a lot, which Fux had purchased of Armstrong’s heirs. The lot was under mortgage for the original purchase money. King had a complete title from Fux and was to make the payments to said heir. About the time all the payments became due, King sold Fux bricks to the amount of $291, and had the debt secured by a privilege on a brick house. King now sued Fux.

On the 9th March 1825, David Weeks, a sugar planter in the parish of St. Martin, employed Thomas Garrahan the plaintiff, to make sugar and conduct a rum distillery.—Garahan continued in the employ of Weeks until the 13th of August 1826. During his employment he made 140 barrels of rum and 100 hogsheads of sugar for Weeks. He charged $400 for superintending and buildng up the rum distillery, and $200 for making the sugar.

Martha Castille married Laurent Ducrest, in 1787 and had issue two sons—Joseph married Zelia Guidry and had issue two sons, Nicholas and Joseph Ducrest who are minors — their father is now dead.— Laurent Ducrest died in 1805-6 leaving a large estate in community, consisting of a plantation, negroes, cattle, &c. of which an inventory was made, except the cattle. His widow Martha Castille married Auguste Bijeau in 1807 and had no issue.

Thomas Martin of the state of Tennessee owned a tract of land, five arpents wide fronting on the Teche, on each side, and running back forty arpents each way, lying in the parish of St. Mary’s, State of Louisiana.

<p>Appeal from the court of the fifth District, the judge of the District presiding.</p>

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

<p>Contracts are governed by the laws of the country in which they are passed: and by the comity of nations, are en forced according to those laws, by the state to which the parties have removed.</p> <p>Liens, on land and slaves remaining in the hands of the owner or seller, have no effect against third persons, unless they are duly recorded.</p> <p>Liens, existing on land or slaves in other states, are subject to the same rules of registering as in our own, when the parties come to this state to enforce such liens.</p> <p>Where a creditor in Kentucky, assents that certain property of his debtor, may be taken to Louisiana, by an agent or trustee and sold, the proceeds to be applied to the payment of his lien and debt, he cannot attack the sale of such agent as fraudulent, because by his subsequent misconduct he failed to receive the proceeds.</p> <p>An agent or trustee, who is empowered to sell certain property and take a note payable to himself, may legally sell such note to a third person, although it be in fraud of the rights of his employers.</p> <p>The purchaser of such note cannot be deprived of his right to it, without being repaid the money he gave for it.</p> <p>It is a principle of the common law, that a bona fide purchaser, is not affected by fraud in his vendor towards those from whom he obtained the property, if he has a legal title to the thing sold.</p> <p>Interest will not be allowed on a note, givers for the purchase and price of slaves, when there is a contest between two adverse parties about the proceeds, until such contest is decided; because until then, the maker of the note is not considered in mora.</p>

In this case, the heirs of Ludevine Gilbeau, former wife of Michel Cormier, sued Cormier for a settlement and restitution of their half of the community, formerly existing between their deceased mother and the defendant. They pray for a partition and division of said succession between them, in right of their mother and said Cormier, and had judgment accordingly.

<p>Appeal from the court of the fifth district, the judge of the seventh presiding.</p>

<p>The new civil code (art. 3280) exempts the property and estates of all collectors of moneys, such as sheriffs, &c. from mortgage, from the time of its promulgation.</p> <p>But a collector of a trade or navigation company appointed between the promulgation of the old and new codes, would be subjected to the legal mortgage, according to the terms of his appointment, altho’ by the new code they ceased to exist.</p> <p>The state, who is the law giver and a party, may constitutionally declare, all mortgages in her favor shall cease to exist, as to moneys thereafter collected.</p> <p>Notice to a third party who purchases at a sale, of prior title, is sufficient to hold the property, although the title may not be regularly recorded, if such notice be given at or before the sale.</p>

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

<p>A casual residence in another parish is not such a change of residence, as legally to transfer the domicil from the usual and permanent place of abode.</p> <p>An allegation in a petition, that the defendant was a resident of the parish where suit is instituted, but had left the state, is sufficient to ground an attachment.</p> <p>But an allegation that the wife lives in another parish, will not authorise a citation to be sent there and served on the husband and wife. Such service is bad.</p> <p>Where it appears that the defendant has absconded merely to avoid a criminal prosecution, and not to avoid being cited, the case does not warrant an attachment, but an ordinary citation left at his domicil or last place of residence is sufficient.</p> <p>Where an attachment improperly issues in a the ordinary proceedings will go on, but the attachment will be dismissed at the plaintiff's cost.</p> <p>The word “garnishee” is inserted in the English text of 258th article, in the Code of Practice, by mistake. It should be defendant.</p> <p>The wife has no legal domicil but that of her husband, and a citation left at his domicil, is legal service on her.</p>

<p>The professional services of an attorney, will be determined on a quanum merruit, if no agreement is shewn to exist.</p> <p>In determining the worth of professional services of an attorney at law, on a quantum merruit, $500 will be deemed adequate compensation for settling a claim of $3,000, altho’ two suits had been instituted.</p> <p>Where the court see no ground on which an appeal is taken, to reverse the opinion of the inferior court, it will be considered as taken for delay, and as frivolous, and the judgment of the inferior court will be affirmed, with costs and 10 per cent, damages on the amount of the judgment.</p>

<p>In a case which depends on a variety of circumstances to prove its true merits and to arrive the justice of it, where the proof is defective and unsatisfactory, the cause will remanded for further proceeding on the merits.</p> <p>The general rule is, that who affirms must prove, but where the affirmative involves a negative, the proof must come from the other side.</p> <p>The plaintiff affirmed that the curate did not receive a salary and it devolve on the defendants to prove that ha did; to the negative, which was involved in the affirmative, could not be proved.</p>

<p> APPEAL from the court of the fifth district the judge of the district presiding. </p>

<p>A surety, who has released his principal, by a novation of the debt, is still an incompetent witness for the principal, to establish the novation.</p> <p>Such surety is interested to defeat the action against the principal; because, if the latter is condemned to pay, he would have a right to call on the surety, who is bound by the novation, for the debt and costs incurred by his failure to discharge the obligation.</p>

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

Eloi Broussard sued Antoine Mallet and Gilbert Hebert, as makers of a promissory note in solido, for $394 48, dated June 7th, 1823. Gilbert Hebert answered separately and plead minority.

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

<p>Prescription will bar a recovery of land in a petitory action, after ten years possession animo domini, under a just title, against a resident, and twenty years against a non-resident.</p>

<p>The 3032 art of the Louisiana Code, which provides that a prolongation of the term of payment granted to the principal debtor, without the consent of the surety, operates a discharge of the latter: applies to a case where the creditor merely suspends for a term, his right of suing.</p> <p>The creditor, who has a surety, is not compelled to sue his principal debtor.</p>

<p>Appeal from the sixth judicial district, the judge of the seventh presiding.</p>

<p>The appeal will be dismissed, if the citation be served on the attorney, and it does not appear that the appellee is absent or resides out of the state.</p>

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

<p>If the sum originally sued for be under $300 and a third party intervenes claiming a sum below $300, both claims cannot be cumulated to authorise an appeal, altho they collectively exceed $300.</p>

<p>Parol evidence of the contents of a deed cannot be received, without proof of its loss or destruction.</p>

<p>It is an implied condition of every contract, that the work contraded for shall be done in a sufficiently workmanlike manner, and the materials furnished shall not be spoiled.</p>

<p>Until the administrator presents his accounts, and obtains their homologation in the court of probates, or until the time expires for which he holds his appointment, any person having claim on the estate, has a right to sue him, as representing it.</p>

<p>The defendant is bound to adduce every evidence necessary to support his plea.</p> <p>The payee of a promissory note, is not bound to join, as plaintiff, a person not named on it, having a right to receive part of the proceeds.</p>

<p>Appeal from the court of the sixth district, the judge of the seventh presiding.</p>

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

<p>No final judgment can be given, if there be no answer nor judgment by default.</p>

<p>The statement of facts may be made at any time before the appeal is granted.</p> <p>The record of a court of chancery, in another state, certified by the clerk, with the attestation of the chancellor that the certificate is in due form, is legal evidence.</p>

<p>Nothing prevents a man, who has the right of possession, from taking into his hands the object which is subject to it, nor is there any necessity for his asking or obtaining the consent of a person who has no right of possession, although that person may have the possession of the thing.</p>

<p>An appeal lies, from the order of a judge, at chambers, directing the discharge of a party arrested on a ca. sa. A defendant arrested on a ca. sa. and diseharged from imprisonment by the plaintiff; may be imprisoned again.</p>

<p>Since the new code, the state has no privilege on the estate of an insolvent sheriff, for taxes collected by him and unaccounted for.</p>

<p>A petition, claiming damages for the defendant’s failure to complete a building, according to a written agreement, may be amended by a demand, under the legal warranty resulting from the defendant’s undertaking.</p>

<p>The sureties on a sheriff's bond , are liable for the taxes on suits.</p> <p>The power of summarily enforcing payment of a tax, cannot be exercised in regard to other taxes.</p> <p>A sheriff, sued for the taxes he was bound to collect, must show he failed in doing so, after having used proper diligence.</p> <p>The state is not bound to show the amount of taxes actually collected.</p>

<p>Whether a defendant, who denies his signature to a promissory note, may, by admitting it at the trial, avoid the penalty?</p> <p>The purchaser, with a notice of an incumbrance cannot, on account of it, resist the claim of payment.</p>

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

<p>A wife may cumulate an action for a separation, with a prayer for an injunction to stay a sale on a fi. fa. against her husband.</p>

<p>The rights of the seizing creditor cannot be greater than those of the debtor. ,</p> <p>The vendee of property, on a fi.fa. acquires no right on property which did not belong to the debtor.</p>

<p>If the demands, in two consolidated cases, exceed, together, $300, an appeal will lie.</p> <p>If, after an amended petition is filed, the case is submitted to a jury, without an answer being filed, or judgment is default, the proceedings are irregular.</p>

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

<p>If a suit be brought to set a side a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside, between the parties, but the rights of third persons, who are purchasers, without notice, will not be disregard.</p>

<p>A sale, made without the authority of justice, is not binding on the creditors of a succession, and they have a right to call on the person making it to pay them the value of the object sold.</p> <p>Creditors are not bound by a decree of a court of probates, which they had no opportunity to oppose.</p> <p>A tutor is subrogated to the rights of a creditor paid by him.</p>

<p>In an attachment case, no attorney is to be appointed, by the court, to the defendant, if the citation be served on him.</p>

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

<p>If partners state, in the preamble of an agreement, that they have settled their affairs to the day of the date, no account can be claimed by either, of any anterior transaction.</p>

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

<p>The endorser of a promissory note, with power to make such use and disposition of it, as she thinks proper, as long as she remains bound as the payee’s surety,is not bound to admit every plea which could be opposed to the payee.</p>

<p>Appeal from the court of the eighth district, the judge of the third presiding.</p>

<p>Notes given to relieve a party, who mortgages slaves for the indemnification of the payee, need not be marked ne varietur by a notary.</p>

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

<p>Appeal from the court of the second district, the judge of the eighth presiding.</p>

<p>On a motion to dissolve an injunction, all the matters alleged in the petition are taken for true A debtor in whose hands the debt due by him is attached, may enjoin an execution, issued against him by his creditor.</p>

<p>The country between the Iberville and Perdido rivers, is part of the territory ceded by France to the U. States.</p>

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

<p>Appeal from the court of the third district, the judge of the eighth presiding.</p>

<p>When the statute directs a jury to be drawn within thirty days after the passage of the act, and it is done afterwards, the jury is not legally empanelled.</p>

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

<p>No proceedings can be had in the inferior court, while the case is pending before the appellate court; even after judgment above, till the expiration of three judicial days.</p>

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

<p>Appeal from the first judicial district.</p>

<p>Appeal from the court of the eight district, the judge of the seventh presiding.</p>

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

<p>Fraud will not be inferred from slight presumpitons.</p>

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

<p>Judgment obtained by the wife against the husband, is evidence of the debt in an hypothecary action.</p> <p>But where the answer charges the judgment to have been obtained through fraud and collusion, the wife must give evidence to prove it was bona fide.</p>

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

<p>A judgment derives its force and effect from what is decreed by the court, not from what is admitted by the parties.</p> <p>A judgment, confessed by an attorney, in presence of his client, has no preference over one confessed out of the client's presence.</p> <p>A judgment cannot be given with preference, without a prayer for a writ of seizure and judgment by privilege.</p>

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

<p>Appeal from the court of the fourth district, the judge of the eighth presiding.</p>

<p>Parol evidence may be given,that one of the parties to an act, perused it several days before he affixed his signature.</p> <p>Knowledge in a purchaser, that a slave is diseased, will not defeat his action of redhibition; it must be shown, he knew the disease was incurable, or that, without knowing that he bought the chance of the slave's recovery.</p> <p>Parol evidence cannot be given to contract the date of an authentic act.</p>

<p>When the redhibitory malady did not manifest itself within three days after the sale, evidence must be given its previous existence.</p>

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

<p>If a party agrees to go to New-York, and report himself as ready to commence work, in the capacity of an engineer, for building one or more steam engines, and to attend to the casting, erecting and putting up said engines, in complete operation; his claim for compensation, is not that of an overseer, but that of a workman, which is prescribed by the lapse of one year.</p> <p>And an agreement, that he will be guided by the defendants, does not affect their claim for damages, if the work be not performed in a skilful and workmanlike manner.</p>

<p>The witness’s declarations, in the absence of the party who presents him, may be received, to discredit the former.</p>

<p>If justice appears to have been done by the verdict, and no attempt was made below, to set it aside, the supreme court will maintain the judgment given thereon, altho’ the evidence might have sustained a different verdict.</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 the first district.</p>

<p>After defendants have joined in their answer, they cannot be permitted to sever in their defence.</p>

<p>The endorser, who has not been duly notified of protest, is a competent witness on the part of the maker, to prove payment.</p> <p>A note, endorsed in blank, authorizes payment to the holder.</p>

<p>An execution will not be enjoined, for matter which might have been pleaded to the action. An answer, put in the papers of a cause, without being handed to the clerk and by him endorsed and filed, is not a part of the record.</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>Appeal from the court of the first district.</p>

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

<p>Trespassers cannot call in warranty those under whose authority they acted.</p> <p>The corporation of New-Orleans have the right to consider an act in violation of their ordinances relative to the port of New-Orleans, as a nuisance, and have power to abate it.</p>

<p>The act of 1823 professedly changed the limits of Donaldson.</p>

<p>Appeal from the court of the third district, the judge of the second presiding.</p>

<p>Want of consideration may be proved between the maker and payee of a note.</p>

<p>Appeal from the court of the fourth district, the judge of the second presiding.</p>

<p>Enregistering an act under private signature in a notary’s office, does not give it the force of an authentic act.</p> <p>Recording a mortgage in the name of an assignee is not proof against 3d persons of the assignment.</p> <p>An attorney at law cannot alienate a judgment obtained by his client, without special authority.</p>

<p>In a sale of a certain and limited part, taken from a whole tract, leaving another part between the premises sold and the river; the words front to the river, are merly descriptive of the position of the land sold, & no land passes beyond the expressed limits.</p>

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

<p>A will made in one state, and admitted to probate in another, may be ordered for execution in this state, on producing the record of its having been admitted to probate by any court of competent jurisdiction.</p>

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

<p>An affidavit for a continuance, need not state that the testimony wanted could not have been discovered by proper diligence before the trial.</p>

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

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

<p>Partnership debts must be paid out of the partnership estate, and private and separate ones out of the private and separate estate of the individual partner.</p> <p>Partnership creditors, unable to obtain payment of the partnership estate, cannot resort to the private and separate estate till private and separate creditors are satisfied.</p>

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

<p>Appeal from the court of thefourth district,</p>

<p>The decision of the board of commissioners under the authority of the United States, in regard to donation claims in Florida, is final, and cannot be reexamined in a court of justice.</p> <p>The recitals in a title emanating from government are evidence against the possessor without title.</p>

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

<p>Appeal from the third judicial district, the judge of the eighth district presiding.</p>

<p>Appeal from the court of the third judicial district, the judge of the eighth district presiding.</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>If the citation be served, after the return day, the appeal will be dismissed.</p>

<p>A suit,by a creditor to avoid a sale or fraud of his rights by his debtor, is prescribed by one year.</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> 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 eighth district, the judge of the second presiding.</p>

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

<p>No appeal lies from the order of the inferior court, discharing a jury, who cannot agree, and continuing the cause.</p>

<p>The wife cannot be surety for the husband.—And, where she binds herself as principal, she may show the contract was one of suretyship, altho’ she did not take a counter letter.</p>

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

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

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

<p>A married woman, who, jointly with her husband, purchases property from her father, cannot contradict the act of sale, and prove by parol evidence, the donation of it was contemplated.</p>

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

<p>Minority must be pleaded; the plaintiff is not obliged to prove the defendant is a major.</p> <p>A prayer for judgment, is a sufficient allegation that the money alleged in the petition to be due, is unpaid.</p> <p>When suit is brought on a judgment of a sister state, it is not necessary to allege that the court which rendered judgment is a court of competent jurisdiction.</p> <p>Payment of a debt cannot be pleaded in reconvention.</p> <p>The faith and credit due to judgments of the courts of other states of the Union, extends as well to their competency, as to the correctness of the matters decided by them.</p>

<p>Whether a sale of land on a mortgage executed by the vendor, is an eviction of the vendee, which will authorise him to resist payment quere.</p> <p>If the vendor, after the sale, does any act to impair the title, or possession, of his vendee, he cannot recover until he replaces the buyer in the same situation he was at the time of the purchase.</p>