Volume 9 — Martin's Louisiana Term Reports (1809–1830)

<p>fence,1Sin a suit on the part of the Black Code, which forbids tiloasllquorrlo the negro "tote a slave.</p>

<p>⅛ an act¡on to obtain reseission of dhe sale 0f a slave, commenced within slx m(>nths from the time of discovering the He-pra0‘”P" obtained T6 aknowleseof redhibitory vices.</p>

<p>A forced surrender cannot be ordered, unless the party alleged to be a bankrupt, is made defendant and cited as in ordinary cases.</p>

<p>Where a <⅛-fendant, in the course of the transaction on which the action is founded, has acted with the plaintiff as possessing a certain. character, and acknowleged the title by virtue of which he sues, ⅛⅛ » prima.facie evidence that he is entitled to sue ; and if he ¡snot, the burthen of proof is then thrown on the defendant.</p>

<p>. I he affidavit t"oi^Stheydeft'n <la,;t t0 bail> may be annexed Sl,pp'fmen“ a”i0”ngmal pe’</p> <p>Wheywerthe obligation be contracted, the peifonnance ®ust te ding to the laws of. the.p!ace where it is to</p> <p>t0 tbe le§ality °( the summons of thejurj> areto° ™J¡dict is recor“</p>

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

<p>18Í7*1 (relating 1⅞⅛ bave°n6otWa° ofaanyierNhtnce before had '</p>

<p>wh,f undertakes ’to collect a debt notniiabieWfbr1S any accident which happens “fthTagem’s6 death.</p>

Appeal, from the court of the first district. The defendants appear to treat this cause with contempt. It seems as if they condescended to the formality of appearing here, only to see us condemned. I know the court will entertain a - different disposition; a disposition t@ regard this suit as the serious complaint of a great many poor people, who in their hearts believe, that an exorbitant tax is exacted from them without the authority of law.

<p>If thet a quo tell the defendant, he ⅛“0⅛°<;⅛*6<1⅛ ”“,’sasc*® “e ™urJ; TlU</p>

<p>Where fraud is put at issue and tnesup.eme court think rhat the weight of evidence is against the ver-diet, they will remand the cause for anew trial.</p> <p>The court has the power to de-side differently from the jury, but it is one which, in cases of hat description, is to be ex-errised with great caution.</p>

<p>a contract for the sale of a slave must be reduced to writing.</p> <p>if a slave be delivered on trial, parol evidence may be received to shew under what circumstances.</p> <p>In contracts which are rocaliy benefi-ciai to bothparties, the same care ⅛ exacted of fhe bailee which every prudent man takes of his own goods.</p> <p>in an action for property thus delivered, and not returned, the burthen of proof as to the facts which ure to restore it, °n,he ba’</p>

<p>a cook, hired for 18 months, may be dismissed at any time.</p> <p>If the master was bound to pay his passage back to France, at the end of his services, his representatives may recover die value of such a passage, though the cook died during ⅛% Pen-dency of a suit brought on the master’s refusal to pay the passage money.</p>

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

<p>If testimony admitted,sworn to, and be contradictory, the supreme court will re-«maud the case for a new trial.</p>

<p>if it does not appear on the record that the matter in dispute exceeds the appeal will he dismissed,</p>

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

<p>The signature of one of the ⅛¾ fíen tateinterest!’"'</p>

<p>The assent of the vendee to an act of sale, may be proved by matter aliunde.</p> <p>The vendee of an estate, cannot be disturbed on the score of lesion, in the sale by which his vendor acquired it; the sale is not, therefore void ; and if the first vendor wishes to avail himself of the benefit of the law, he must bring suit to have the act set aside.</p> <p>A party who has carried his pollicitation into effect, and delivered what he had promised to give, cannot urge that the party who received it did not accept the offer.</p> <p>Answers to interrogatories must be taken together; they cannot be divided.</p> <p>Threats of legal process is not such a violence as will avoid an agreement.</p>

. on an application tor a rehearing, By a decree of this court, in Dromgoole vs. Gardner & al. 10 Martin, 433, it was decided that a certificate, stating that the record contained a note of the evidence, was equivalent to the certificate, required by law, that it contained the evidence ; this decision strongly supports the argument addressed to the court, that they will look rather to see that the essential parts of the law are complied with, rather than its mere forms; and…

<p>No appeal can 6e allowed after two years have renditionoiRna! judgment m the mferior court.</p> <p>rig'Tof*appeal-mentsTy jptf" íeíTndUpu^aí& ment 11”⅞6⅞-dered ? — Q«ere.</p>

<p>If the testimo-4nony of a witness contains direct and palpable contradiction, the supreme court will reject it altogether.</p> <p>An executor cannot be allowed, in his settlement, the fee paid counsel t$ defend him thought by the heir t0 surrender the property, institute!'umn executor’s^ *</p> <p>action brought and continued! <⅛ ..</p> <p>Nor for a suit brought by the uncertain event, proved*that"⅛ was a soundex-5 erase ofthe dis-him.</p>

<p>ought not to another,° ¿ m possesslon-A debtor</p>

<p>a pmate act does not become authentic by its being recorded.</p> <p>has no authority acknowkgment a ee '</p>

On the 3d of 1820, the present plaintiff instituted a former suit against the present deiendant. i>oth parties being non-residents. Ihe suit was founded on promissory notes, amounting together to $2013 35 cents, with interest thereon; and an attachment prayed and awarded; as is usual in similar cases, an attorney was appointed to defend the interests of the defendant. The order of appointment was made on the 16th of February, 1820.

This case is a kind of judicial anomaly. The appellant, who was plaintiff in the inferior court, obtained there a judgment by default, which default is subsequently confirmed ; yet notwithstanding that the record shews these facts in this case, by an unheardofand unauthorized proceeding, the plaintiff is frustrated of his judgment, and compelled to appeal for its enforcement. But here he is told he cannot appeal.

<p>Ah attachment does not lie to compel the delivery of a specific thmg.</p>

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

<p>When the opinion of the su-?reme cm>n. cidewith thatof a jury, on a \ues,ion the case will be rema"ded>,f th® appellant moved íor f new trial</p>

<p>piaintiff brought Tame'cause* of dísmTsse'dhlchhe</p> <p>.Nor that other persons have same'tfes'passje suits must be cu-11111</p> <p>may to reduce to oTa'/ü’^to one submittedeStons ⅛ f“’ thefr'con-</p> <p>incurred beyond bringingSanfoac-one fails, yetíe extraordinary*0 injunctlon^&c! “““* hisidve'r-sary, in case failure</p> <p>be^mnintS theCapenany°of the bond.</p>

<p>if one of the partners be exe-eutor, the part-ncrship cannot ⅛/ spar,0ep'efytfe sestate*</p>

<p>Neither the petition nor the citatiou need be in the French language.</p> <p>But, copies must be served in the English and French.</p> <p>If the sheriff's return shew that the petition and citation were served on the defendant, it will be .presumed they were served as the law requires.</p> <p>A judgment by default may be made final, even when the object, of the suit is the recovery of land.</p>

<p>Although a Spanish judgment stated that an adjudication formerly ipade, exists no longer, the party having neglected to comply with the terms, yet, if the court pro-eeeds to order ¡x compliance therewith, and issues execution accordingly, the party,after com-piiance, will have the benefit ⅛*6 adjudica‘</p>

The court having heard the plaintiffs’ and defendants’ counsel, at March term, ante 38, •187, gave time to the former to reply; which he afterwards declined.

The petition of David L. Ward, the appellant, was originally preferred against J. Brandt &Co., composed of John Brandt and Henry Foster, of New-Orleans, and James Johnson and William Ward, of Kentucky, to recover the sum therein stated to be due from the latter to the former, with interest, damages and costs, according to accounts, made part of, and filed with the petition, signed with the name of J. Brandt & Co., by Henry Foster, who was thereunto authorised, and which…

<p>^he ⅝1 will bo dismis-'bfe re'</p>

<p>A person, who binds himself jointly and severally, is a principal, and cannot use the pleas which the .law*,. gives to sue alone.</p>

<p>A building contract must be registered, according to the provisions of the act of 1813.</p>

<p>a citizen of another state, praying for the removal of a suit to the court of the u. states, must shew that the plaintiff ⅛ a state in which brought.</p>

<p>When a person owning pro» perty in this state, does not appear at the place of his residence for five years, and has not been heard of, his presum-tive heirs may cause themselves to be put in possession of the estate which belonged to him, and they enjoy a portion of the revenue.</p> <p>Their right yields to the testamentary heir, and both to the claim of the husband and wife, who wish to continue the partnership. If heirs in dividing the property of their ancestor, held in common, pass an act of sale to each other, it will be regarded not a* a sale, but as a</p> <p>who ⅛ °f since he came of don’on thT aC" ground that it</p> <p>authoit^with-proceedWtoe’the moveabíe °parte accruedCtoeher°D</p> <p>theTiresuSp«l hens, ⅛ receive who has^bap-sonannteresPter panakeSof°the reality.</p>

<p>paroi evi deuce of the sessimf cannot the gain'd that nexe^tTthe re-pear’⅛ bemade dam’s privity.11</p>

<p>Notice of nonpayment must be given on the day which foi-low 6 the protest.</p>

<p>A party who is named in a notarial act, but whose signature is not thereto, is not bound thereby-</p> <p>A wife is not bound by a note, on which the name of her husband is written above hers, where his signature is denied and not proved.</p> <p>The supreme court cannot take as evidence what the court a quo states in the judgment.</p> <p>The wife is not bound by a note executed jointly with her husband.</p>

<p>totaP»y"nS 8iness as iron mongers, is n a special or co ⅛™*6 parte e</p> <p>déa&of ⅛ ⅛⅛⅛⅛-'11 have^a</p> <p>pcid V»™ to recover'a*'5 partnership, the hit aSn: interveue-aZ#er if they have a with thedefcn-</p> <p>Pleadings should not be argumentative5 extraneous mal-ter'</p>

On 26th March, 1821, the plaintiff sold to S. Packwood, a plan-1 1 tation in the parish of Plaquemine, “ with the 1 1 warranty fas the deed declares) of all debts, gifts, mortgages, evictions,… Held: until Michel and his wife had also can-celled it. In the answer to the petition they advance another step — the mortgages must be released to the satisfaction of Packwood, and he must authorise them to give them up.

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

<p>Strict proof is required of the taá^hiií person tice^lrfbehaifof an endoiser.</p>

<p>When-an act of assembly directs that the judgment of a. justice of the peace shall be execme(’not-withstanding an aPPBal> if cannot be suspended by an injunction.</p>

, r xr ^ , City OI J\iew-(jrleans. # This cause comes p . up upon two bills oi exceptions, taken by the appellant, to the opinion of the judge below : in discharging the bail upon the alleged insufficiency of the plaintiff’s affidavit; and in refusing to the plaintiff permission to file a supplemental petition. Our law, on the subject of bail, is evidently derived from the English practice.

<p>if a claim be made inoneca-ven'to’bTdue ⅛ courtewiiihgive S'ifAead-makes^o'objec-tlon'</p>

<p>Whether the word executor, in an endorsement is to be considered a one of description, or as indicating that the endorsement is made in right of the testator ?</p> <p>In remanding a case, when it does not clearly appear which of the claimants has a right to the money recovered, the supreme court will decree it to be paid into court</p>

<p>Property ao quired by wife, for a valuable consideration, during marriage, may be sold by husband and</p> <p>. •Marriage cow-"heTcTo'T panies'</p>

<p>If the judge appeaierwiu be fimmssed.</p>

<p>A note> the which ⅛ secured by a special mortgage, may be sued on, m ordinary</p>

<p>p100f cannot be received of ^vendor'whose nm^ovoTcd!513</p> <p>beNassignScdaas on^h^face'of mLeT^of law* ^TadlVsa’ry1'* consent) could not ha;e been proceerUngsTin1 cause'</p>

This suit was instituted to recover a tract Qf land, in the possession of the defendant, x 7 and $40 for uge an(J occupation. r The defendant pleaded the general issue. ° title in himself, and prescription. 1 1. There was a verdict and judgment in favor v 0 of the plaintiff, for one half of the land; hut he was condemned to pay costs.

m, , • ,-cv ■ . a a mu 1 • 1 he plaintiff m propria persona. 1 he plain- , . i i v a tin, on the 18th October, 1821, shipped at _ .. tt i i rensacoia, on board or the sloop Herald, commanded by the defendant, three boxes of books, in good order and well conditioned, to be delivered in New-Orleans.

<p>The presence of the owner is not conclusive evidence of his assent to any act, which is alleged to constitute barratry.</p> <p>When proof is once given of act which r^t°y,ntthe°onu* every ftct^hat ft°e¡s ^rownon the msmer'</p>

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

<p>Proof that the defendant had a horse of the plaintiff's for sale, does not support a charge that he purchased it, and is rieb~ tor of the price-</p>

<p>Any inhabitant has the right to forbid the erection of houses, or other edifices,on Pub-</p> <p>a suit menced by^he dty^hemayln-in |o%ueTg'h™ht ^eatpUyic“p by</p> <p>Bythefoimer laws of this country, only one year was allowed after the filing of the pa-mbunfij appeaHo ^⅛-</p> <p>"“¿Y, after the ¡f°¿ie ^°at ferior tribunal acquired the au-°fresj'u~</p> <p>When the appeal did not su-®P0e“dite*acsu‘0t ⅛¶? cau°e why</p>

<p>Lob of receiving against or be-tems as°n wiH-ten instrument, only extends to thhdPperto)i7 thereby.</p> <p>no^ béacornmhi whobh¿ Thetcr ⅛ the^essci!'1'</p>

<p>The liability of a factor, who sells goods on credit, depends much on the prevailing cus-íhe'jury are the ⅞</p>

<p>The defendant cannot amend by withdrawing an answer which contained an admission, & pleading the general issue.</p> <p>Inconsistent pleas cannot b« received.</p>

This was an action instituted by the plaintiff and appellant, for the revindication of a certain lot of ground, and the buildings thereon, which he claims by virtue of a certain donation made to him of the same, by one named Augustin Bony, deceased, his god-father, on the 24th December, 1787; who, on the same day, had purchased the same from Joseph Copelly, the natural father of the appellant.

on an application for a rehearing. The court considers the conveyance which the legislature directs the sheriff' to deliver to the purchaser of property sold under a fi.fa. as so essential to the validity of the sale, that the smallest clerical error, in the description of the judgment, is fatal.

<p>Parol evidence may be received of '¡T pets on °f noi appc'ar tny made ofTt?S</p>

<p>When testimony is contradictory, it is the duty of the court to reconcile it, if possible,</p>

<p>A parishjudge, charged with the settlement of an estate, cannot receive a reward for professional, or other services rendered therein.</p>

<p>Contracts made in a foreign country are governed by the laws of that country, in ex-</p> <p>dies by which they are enforced, must pursue the forms, and be con-troled by the regulations of the country bought”*smt *"</p> <p>^Vates debtor, ⅛* K himVom^pii-</p> <p>or law of na,lons’</p>