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Condensed reports of cases in the Superior court of the territory of Orleans online

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liable to all the objections that a regard to this rule can suggest. It
evades particulars, and endeavors to cure the evasion by a general
answer to another question, which answer can only be a reply to
this, on the supposition that the plaintiff could have answered the
particular interrogation, in such a way as would have produced the
same result

The exception made to the reply to the fourth interrogatory does
not appear to be supported. The question was general as to the
consideration, and the answer fully meets and satisfies it

It is, therefore, ordered, adjudged and decreed, that the judgment
of the district court be annulled, avoided and reversed, and that this
case be remanded for a new trial, with direction to the district judge
to ascertain the exception filed by the defendant to the plaintiffs
answer to the second interrogatory. And it is further ordered,
adjudged and decreed, that the appellee pay the costs of this appeal.

Scotiy for the plaintiff.

Oakley y for the defendant.



Vol. III.



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3a SUPREME COURT.



Ware v. Innis. HI, N. S. 117.

SIXTH District.

Decided, that the forfeiture of the right to recover, on account of
having seized and taken property from the defendant, to satisfy the
amount claimed by suit, a principle of Spanish law, {N. Recopila-
don, b. 4, til, 13, /. 1, and b. 5, tlL 17, /. 10, of same work,^ only takes
place in consequence of a taking with force, as it was the intent of
the law maker to prevent breaches of the peace.



Innis V. Kemper. Ill, N. S. 119.

SIXTH District.

It will not be allowed to a freeholder who has signed a return for
a road under the Jwra/ of a justice of the peace, afterwards to prove
that he was not sworn. This establishes that the oath was taken—
but, it is urged, this does not show it was taken before they proceeded.
This circumstance would not vitiate the proceedings. Nott v. Daunoy,
1 Martin J N.S.I.



Staflford v. CaUiham. Ill, N. S. 124.

SIXTH District

A new trial refused, because the party applying for it, had not
used due diligence to procure the missing evidence.



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SEPTEMBER TERM, 1824 39



Bacon v. M'Nutt et al. Ill, N. S. 139.

]f t probate sale be made to satisfy a mortgage and the mortgagee become the parchaser,
he will be allowed to retain the price.

SIXTH District

Maktin, J., delivered the opinion of the court

The plaintiff, as widow and tutrix of her minor children, demands
from the defendant, surety of W. Murray, the price of a lot in the
town of Alexandria, purchased by the latter, at the sale of her hus-
band's estate.

The defendant pleaded the general issue, a mortgage on the lot
and confession of judgment in favor of his principal, a compensation
of a claim of the latter against the estate, and a plea of discussion.

Murray interpleaded, denied all allegations; averred the claim was
extinguished by compensation or pa3rment; prayed the defendant
being a foreigner should give security, if any thing was recovered, as
other persons were interested in the estate.

There was judgment against both principal and surety; but execu-
tion was directed not to issue, till the plaintiff gave security to indem-
nify the defendants agamst an hypothecary claim of Ferguson & Rich,
and not against the surety till after the discussion of the property of
the principal pointed out by the surety.

The plaintiff appealed.

The documents that come up are process verbal of the sale of E.
Bacon's estate; the petition to, and order of the parish judge, th^
receipt of Murray, vendor of E. Bacon, for a partial payment

The defendants introduced the record of a suit, Ferguson & Rich
V. Bacon, the present plaintiff, and the subrogation of Murray to the
plaintiffs' rights.

Scott deposed that the note, offered in compensation, is one of
those given in payment of the lot, as well as that filed in the suit of
Ferguson v. Rich, both being secured by a mortgage on the lot.

It is urged that Murray purchased at a sale, ordered by the court
of probates, for the purpose of reducing the property of the estate
into cash, so that the debts might be paid out of the proceeds, accor-
ding to their respective classes; and that, therefore, there cannot be
any compensation allowed, and the district court erred in allowing
any.

This does not appear to have been a sale of thfe whole property of
the estate, but the sale of a lot, and the avowed object not to reduce
it into money to be distributed, but to sell on credit so as to get a



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40 SUPREME COURT.

[Bacon e. M*Natt et al]

higher price and the sale is only authorised, as prayed for, to avert
the loss to the estate and perhaps to the mortgagee, that would result
from a cash sale. It is not even averred that there are other debts,
and it is that there is other property. The district court did not err
in considering the sale as made for a particular object, that of satis-
fying the mortgage on the premises. If so, nothing is more just than
to allow the mortgage creditor, who has become a purchaser, to retain
in his hands, the produce of a sale, actually made to pay him. It
appears that Murray, in his own right and as subrogated to those of
Ferguson &j Rich, is the only hypothecary creditor. The judge,
therefore, acted correctly in allowing the claim for compensation.

It is, therefore, ordered, adjudged and decreed, that the judgment
be affirmed with costs.

Wilsoriy for the plaintiff.

Bullard and Scott ^ for the defendants.



Taylor v. Curtis. Ill, N. S. 132.

A man's soWency cannot be better tested than by the return of an execation ag^ainst
him, on which no property can be found.

SIXTH District.

Porter, J., delivered the opinion of the court.

The defendant transferred to the plaintiflF, part of a judgment
which he had recovered against one A. J. Davis, with an express
warranty of his solvency; the money not being made on execution,
this action has been brought against the defendant as transferror and
the only question presented for decision is, whether it has been shown
that Davis was insolvent.

The transfer bears date the 22d of November, 1822. On the 17th
of January, 1823, the plaintiff issued execution against Davis on the
judgment, and on this execution only sixty dollars could be made
which the defendant received. On the 22d of the month last men-
tioned, Davis presented his bilan and prayed for a meeting of his
creditors in order that he might make them a cession of his goods:
and shortly after died.

In addition to this evidence, parol testimony was introduced to



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SEPTEMBER TERM, 1824. 41

[Taylor o. Cartit.]

show that Davis was insolvent, and that every thing he had was
mortgaged for other debts.

We think the plaintiflF is entitled to recover. The defendant, in
warranting the solvency of Davis, warranted his ability to pay, and
this ability could not have been better tested, than bv the application
of an execution, which proved unavailing. The defendant has con-
tended that Davis was not insolvent, because the schedule filed by
him shows that he had property and debts to a larger amount than
that which he owed. There are few insolvent debtors, who do not
present such statements, and there are few of those statements that
do not prove delusive; but whether that relied on here, would have
been an exception to the general rule, we deem immaterial in settling
the present question. It was not the understanding of the parties,
nor is it our understanding of the law, on such a contract as this, that
the transferee is to await the settlement of an insolvent's estate, befon
he can have recourse on his transferror. The evident meaning of the
agreement was, that Davis was able to pay the debt in due course of
law, and that the means of compelling him should have been resorted
to. The obligations of sureties, who contract in the ordinary way,
furnish a fair analogy for ascertaining the right of the parties, now
before us. They, like the defendant, agree that the person, for whom
they bind themselves, is solvent, and that he will pay the debts he
has contracted, and they can require his property should be discussed,
before recourse is had on them; but they cannot compel the creditor
to do so, when that property is in litigation, or the debtor has sued
to make a cession of his goods. On the whole, we think, that the
plaintiff, on his failing to make the money out of the debtor by doe
course of law, had a right to sue the defendant on his warranty.

It is, therefore, ordered, adjudged and decreed, that the judgment
of the district court be annulled, avoided and reversed, that the plain*
tiff do recover of the defendant 700 dollars, with interest thereon, at
five per cent from the 25th of November, 1822, until paid, and costs
of suit in both coiurts.

BuUardj for the plaintiff.

Thonuxsj for the defendant.







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42 SUPREME COURT.



Waters v. Wilson et al. Ill, N. S. 135.

A curator, or beneficiary heir, ordered by the court ef probates to pay a debt, may be
sued in the district court

SIXTH District

Porter, J., delivered the opinion of the court.

The petition states that the estate of the late James H. Gordon was
indebted to the plain tiflf, in the sum of 869 dollars, 71 cents: that this
debt has been classified by the judge of probates of the parish of
Rapides as a privileged debt: that notwithstanding this classification,
the defendants, though often requested, have refused to pay the same.
It concludes by praying for citation, and judgment for the amount
ascertained, and settled by the court of probates.

The answer contains a plea of payment, and the general issue.
Judgment was given in the district court against the defendants in
their personal capacity, and they have appealed.

In this court the appellants have assigned for error, that the district
court had not jurisdiction of the case: and that this jurisdiction being
a want of power in relation to the subject matter, may be shown at
any time before final judgment.

The appellees insist that the exclusive jurisdiction of the court of
probates, only relates to the examinanon and classification of the
different claims against the estate; and that these objects once obtained,
an action can be maintained before any of the ordinary tribunals, to
recover the amount due.

The provisions in our Civil Code, in relation to the settlement of
estates, administered by curators, or beneficiary heirs, seem altogether
to proceed, on the apprehension, that the curator would pay too soon,
and that the absent creditors would be injured: for there is not a
single provision in it, which provides the means of quickening the
representative, in the discharge of his duties, by compelling him to
publish the account of the classification, and place the estate in a situa-
tion for discharging its debts: nor any which speaks of or indicates,
the form of execution that should issue against hinL In practice,
however, we believe it has been customary for the court of probates,
after classification of the debts, to order the curator to pay them.
The judge, in the instance before us, acted on this idea; for we find
in the record, that he ordered the defendant to pay the debts which
were classed, out of the funds in hand; and the correctness of tl^is
order cannot be inquired into now, for no appeal was taken from it.
Under a late act of the legislature he has the power to enforce such



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SEPTEMBER TERM, 1824. 43

[ Watera «. Wilson ef oL]

decrees; for it declares, in express terms, << that the court of probates
shall have power to issue ail such writs and mandates as may be
necessary for the execution of its orders, judgments, and decrees."
Acts of the Legislature, 1820 — 96, sect. 9.

Had, therefore, this suit been brought since the passage of the act
referred to, we should be strongly inclined to believe it could not be
maintained. But it is not that question but another, which is now
before us; and that is, whether antecedent to the passage of this law,
a curator, or beneficiary heir who failed to comply with an order to
pay the creditors, after classification, could be compelled to do so by
an ordinary suit. For the solution of the question, it becomes neces-
sary to look into the situation of the estate at the time the order was
given, and what were the powers of the court in relation to it. By
law, ihe whole estate is directed to be sold, and the proceeds are pre-
sumed to be in the hands of the administrator. No execution, there-
fore, could issue against the property of the succession, and the only
means, which the court of probates could have used, would have
been some written process, which might have compelled the repre-
sentative of the estate to discharge the personal responsibility he had
incurred.

Now, previous to the passage of the act already referred to, it does
not appear to us that such means were placed within the reach of
that tribunal: indeed the very enactments there made on the subject
matter, must have proceeded on the idea that such powers were not
possessed by the court of probates, and that it was necessary to confer
them. What then was the consequence of the probate court wanting
means to enforce its orders? That the curator or beneficiary heir
could retain the funds, he was ordered to pay over to others so long
as he pleased? We think not. We consider his failure to comply
with an order given against him in his representative capacity,
created a cause of action which made him responsible in his personsd;
and that the action might be prosecuted either by a suit on bis bond,
or by setting out the particular sum due, as in the present instance.

None of the means of defence set up in the answer have been sus-
tained by proof, and we discover no error in the judgment except a
small one in calculation, and the circumstance of the decree being
against husband and wife. We see no evidence which makes him
responsible for any act done in relation to the estate, and he is cer-
tainly not bound to pay the debts contracted by his wife before
coverture.

It is, therefore, ordered, adjudged and decreed, that the judgment
of the district court be annulled, avoided and reversed; and pro-
ceeding to give such judgment as should have been rendered there,
it is onlered, adjudg^ and decreed, that the plaintiff do recover of
the defendant, Maria C. Wilson, the sum of 434 dollars, 21 cents,
with interest from judicial demand until paid, and costs in the court
below, the appellee paying costs in this.

BaUwinj for the plaintiff.

WUsoHf for the defendants.



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44 SUPREME COURT.



Trustees of Natchitoches v. Coe. Ill, N. S. 1 40,

SIXTH District.

This is an action brought by the corporation of the town of Natchi-
toches to have a house, built by the defendant on the bank of Red
River within the limits of said to wn, removed as a nuisance. Defend-
ant excepts, that as by the act of 1819 and 1820, the corporation has
been invested with ail the powers of a police jury, and that the con-
firming of these powers gave to the corporation the right of enforcing
any regulation they might make and removing a nuisance; therefore
the district court hsul no jurisdiction of the case: HeUy thdii the district
oourt is not thereby ousted of its jurisdiction. No ordinance is pro-
duced showing how means have been provided for hearing and '
determining cases of this kind, and appellant complains with an ill
grace that his adversary is not his judge. As to the merits, see
Partiday 3, «8, 7; Curia Phil. /. 3, c. 1, n. 16.



Davis V. Curtis. Ill, N. S. 142.



SIXTH District

Appeal dismissed for lack of a bond for costs.



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SEPTEMBER TERM, 1824. 45



Crawford v. Cheney. Ill, N. S. 142.

SIXTH District.

In a suit for killing a slave presumptive evidence supports the
verdict



Crain v. Robert. Ill, N. S. 144.

SIXTH District.

Judgnient confirmed with damages against defendant, appealing
without evidence to support his plea.



Same v. Same. Ill, N. S. 145.

SIXTH District.

Claim disregarded because supported by vague proof.

Held, novation is never presumed. Civil Code, 396, art. 174.



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4a SUPREME COURT.



Campbell v. Miller. Ill, N- S. 149.
Campbell v. Henderson. Ill, N. S. 152.

SIXTH District.

When the law of the country in which the parties contracted is
not set forth, the court must take that of the state as their rule.

When the cause was tried by a jury below, and the judgment is
reversed, it is sent back, although there be sufficient evidence to act

OTU



Henderson for the use of Hunter v. Bowles.
Ill, N. S. 152.

A judge need not in all cases refer to the law which he decides.

SIXTH District.

Porter, J., delivered the opinion of the court.

This case has been submitted without argument.

On examining the record, we find the action was commenced on a
note of hand, the execution of which was clearly established, on the
trial in the court below.

No matter in avoidance was pleaded, and nothing, appearing in
evidence, creates the slightest doubt of the justice of the plaintiflPs
claim. To excuse an appeal taken in so plain a case, the defendant
has relied in this court on two points.

1. That no amicable demand was made, and consequently, there
was error in giving judgment for the plaintiff with costs.

2. That the judgment refers to no law, and is therefore unconsti-
tutional and void.

I. An interrogatory is annexed to the petition, calling on the de-
fendant to say whether an amicable demand was not made of him; to



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SEPTEMBER TERM, 1824. 47

[Henderson for the use of Hunter «. Bowles.]

this no answer has been made^ and the fact, endeavored to be estab-
lished by it, must be taken as confessed. It is said in the note filed
by appellant's counsel in the record, that a denial of this fact by an
agent, though not made on oath, is sufficient; because the petition was
served at the last place of residence of the appellant, a position, so
clearly untenable, that any reasoning on our part to show it such, is
deemed unnecessary.

II. This point is of the same character as the first, that is, wholly
unsupported by law. The objection made to the judgment has been
more than once taken in this court, and always without success. A
judge must, in all cases, give reasons for his judgment, because it is
impossible he can conscientiously decide against either party without
some, but he is not obliged to cite the particular law, on which his
decision is founded: he may be well acquainted with its spirit, mean-
ing and force, and yet not recollect its words, nor the chapter or page
in which it is found. Thus the constitution requires judges to refer,
as often as possible, to the particular law, but in all cases, to adduce
the reasons on which their decrees are founded. 10 Martin, 162; 4
Ibid. 536.

It is ordered, adjudged and decreed, that the judgment of the district
court be affirmed with costs, and ten per centum on the amount of
said judgment, as damages for the delay occasioned by this appeal.

Thomas, for the plaintiff. ^

Oakley y for the defendant.



Ham V. Herriman. Ill, N. S. 155.

SIXTH District.

The question of fraud is of the peculiar province of the jury.



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48 SUPREME COURT.



Grafton v. Collins. Ill, N. S. 156.

SIXTH District

If an overseer be dismissed for misconduct, he can only recover
for the time he served.



Cox V. Wells et al. Ill, N. S. 158.

SIXTH District

The return of the sheriff that he served petition and citation, is
sufficient to show that he served it in both languages. Where forty-
eight jurors had been drawn, but only forty-five could be summoned,
this does not vitiate the venire.



Prudhomme v. Dawson et al. Ill, N. S. 1 61.

Under the Spanish law, yalnation in the contract of marriage did not transfer property to

the husband.
Prescription does not ran against the wife in fiivor of the purchasers of her property,

although separated.
Purchaser is not necessarily in bad faith from the inception of suit

SIXTH District

Martin, J., delivered the opinion of the court

The plaintiff, wife of D. Cass, but separated in goods and autho-



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SEPTEMBER TERM, 1824. 49

[Prudhomroe o. Dawson ei al]

rised by him, charges she brought in marriage and as her dol sundry
slaves, part of whom are in the respective possessions of the defen-
dants, and have been so since the year 1810, without either of them
having title, and they refuse to return them or account for the hire of
them.

The defendant Dawson pleaded the general issue, title by purchase
and prescription.

The defendant Rachal pleaded title, in himself, that the slaves
brought by plaintiff in marriage were estimated in her marriage con-
tract and thus became the husband's absolute property.

There was judgment for the defendants and the plaintiff appealed.

Two questions arise in this case, whether the marriage contract
vested the property in the husband? Admitting not, whether the
plaintiff's claim is barred by prescription? This last question applies
only to the defendant Dawson.

The contract states that the parties are possessed of property to the
value of 3000 dollars, each; that all the property of the contracting
parties, now in possession or action, shall be put into the husband's
hands, to be by him employed for their mutual advantage; and that
the said common (mutual) property, with its increase, shall, on the
death of the parties, be divided among their common issue, and if
there be no such issue, to the heirs of the survivor, or the person, in
whose favor he may dispose of the same.

The marriage took place before the promulgation of the Civil Code.
We think it clear that the total value of the property of the parties
mentioned in the contract, was intended solely to establish the equality
in value of what they brought The contract speaks of the property
they brought, as being common, mutual and managed by the husband
for the joint advantage of both.

Under the Spanish law, it was not every valuation which trans-
ferred the property of the wife's real estate to the husband. Febrero
speaks of valuations, which have not the effect of a sale, estimacion
en que no causa venia. He says the valuation has this effect when
it is held in such a manner that the dotal effects are given to the hus-
band, as sold at the price they were valued at. Quandose aprecian
de ial suerte^ que se entregan al marido como vendedor en que se
valuen. Febr. librer. de. es, ch. 2. sect. l,n. 8 and 9; Part. 4, 1 1, 20.

2 It is true the defendant Dawson would be protected by the plea
of prescription, if the plaintiff's marriage had been dissolved at the
time of the separation of property: as the marriage still subsists, the
wife must be protected, because her action may be prejudicial to her
husband. Civil Code, 486, art. 14; Sirey 2, 30; 17 Ibid. p. 1, 304.

There is a bill of exceptions taken by the plaintiff's counsel to the
opinion, in allowing the plea of the defendant Rachal, that the autho-
risation of the plaintiff's husband was not filed with the petition.
Notwithstanding which the judge permitted her to proceed to trial.

On the objection being taken, the authorisation granted before the
inception of the suit was produced. The authorisation was set forth
Vol. III.— 5



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50 SUPREME COURT.

[Prudhomme «. Dawson et al,]

in the petition, and we think that its being produced as soon as called
for sufficed. Besides, the judge by allowing the plaintiff to proceed
to trial, virtually overruled his former decision, and no exception was
taken to this change of opinion.

We do not think the defendants bound to pay for the hire. They
are not necessarily to be considered in bad faith from the inception of
the suit. V Civil Code, 102, art. 7. The Code has wrought a change
in the former law, which put an end to the good faith on the judicial
demand. Richardson v, Packwood, 1 N. iS, 405; where the subject is
examined at full length.

It is, therefore, ordered, adjudged and decreed, that the judgment
be annulled, avoided and reversed, and that the plaintiff recover from
the defendants respectively the slaves named in the petition, and that
the defendants pay costs in both courts.

Morris and Bostj for the plaintiff.

Bullard and Holkanij for the defendants.



Compton et aL v. Patterson. Ill, N. S. 164.



SIXTH District.

An appeal lies from a judgment of nonsuit, so of discontinuance.



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