1. Where attacking creditors commence their revocatory actions about
the same time, and use proper diligence, one shall not have exclusive pri-
vilege on the property fraudulently conveyed and recovered, simply because
his suit was first commenced. The property must be divided pro rata
among them........
..Walton & Son vs. Bemiss et al., 140
2. Persons who are not creditors of an insolvent debtor, may purchase
and receive transfers of his property, after he is in insolvent circumstances,
and it cannot be complained of by his creditors, when they appear to be pur-
chasers for a valuable consideration and in good faith.
Dwight & Hartman vs. Bemiss et al., 145
3. But if an insolvent debtor use the proceeds of sales of his property in
such a manner as to give a preference to one creditor over another, the law
will interfere and correct it....................
4. The act of 1817, relative to voluntary surrenders, is highly penal, and
must be strictly construed as regards debtors charged with fraud.
Campbell vs. His Creditors, 348
5. So, where the verdict of the jury in a case of fraud, finds the facts
charged as fraudulent, to be true, but negatives any fraudulent intent on
the part of the ceding debtor, it is substantially a verdict of acquittal, and
judgment must be so pronounced........................
6. Every act done by a debtor, with the intent of depriving his creditor
of the eventual right he has on the property of the former, is illegal, and as
respects such creditors, ought to be avoided.......Hempkin vs. Bowmar et al., 363
7. In a revocatory action to set aside a mortgage made in fraud of cred-
itors, it is not necessary to prove that the mortgagee was aware of the
debtor's insolvency; proof of fraud against the mortgagee, as giving a
preference, and the injury resulting to other creditors, is sufficient........... ib.
8. Where a debtor is perhaps in insolvent circumstances, but when there
is no proof that the creditor had any knowledge of it, he may give a valid
mortgage in favor of such creditor.
Brander et al. vs. Bowmar & Abercrombie, 370
9. So, a prior mortgage to secure endorsements not paid, will have a pre-
ference over a judgment creditor, whose judgment is not recorded, when
there is no proof of knowledge of the insolvency of the debtor, at the time,
by the mortgagee....
1. Suits for the interdiction of idiots or insane persons, must be brought
in the Probate Court, and all the proceedings had there. The Parish
Court, although it be the same judge, is without jurisdiction ratione mate-
ria to try such cases........
Segur vs. Pellerin,
2. In a suit for interdiction, service of petition and citation must be made
on the person sought to be interdicted, in the same manner as in other
cases. It is not sufficient for the attorney appointed to defend him, to ac-
cept service........
3. A judgment of interdiction rendered on ex parte testimony, is erroneous,
and will be reversed on appeal............
4. The law requires that the person intended to be interdicted, should be
notified of the suit; and have an opportunity to employ his own counsel,
before any is appointed by the judge.............................
1. The article 391 of the Code of Practice, provides that one may inter-
vene either before or after issue joined, provided the intervention do not re-
tard the principal suit; yet time must be allowed to cite the party against
whom it is directed, and the same delays to answer or respond to interro-
gatories given, as in ordinary suits.
Ardry's Wife vs. Ardry her Husband: Kain & Co. et al., Intervenors, 264
2. So, where the plaintiff has treated the intervening parties as properly
in court, he must allow them the necessary delays to bring in the answers
of all the necessary parties.........
3. An intervenor may produce evidence, to prove that the property at-
tached had been transferred to third persons, before coming into his posses-
sion as owner, in order to show that the defendants had parted with their
interest at the time of the attachment.
Shields et al. vs. Perry, M-Clure et al., 463
1. In a contract between the vendor and vendee, where the latter has
had the use and enjoyment of the property, he cannot demand interest on
the price he has paid, in case of eviction under the mortgage retained.
Miles vs. His Creditors, 35
2. So, in a contract between two creditors of the proceeds of mortgaged
property in the hands of a syndic, to be allowed their respective claims, the
vendee who had paid part of the price, was in possession and had the use,
but gave up the property, cannot claim interest, which is satisfied by the use
and enjoyment of the property.............
3. Interest will be allowed on an open account from another state, where
a statute of that state is in evidence, authorizing it and fixing the rate.
Lesesne & Edmondson vs. Cook, 58
4. Where there is no evidence of the rate of interest in the state where
the obligation sued on was made, it must be assumed as the same rate of
legal interest in this state........
.Patterson vs. Garrison, 557
1. A judgment of the Probate Court, unappealed from, appointing the
plaintiff agent, with power to collect the debts of a partnership, is full au-
thority for him to sue and recover all accounts and debts due the firm.
Brent, Agent, &c. vs. Cheevers, 23
2. The authority of a judgment of court, cannot be inquired into collater-
ally...........
3. A defendant cannot avail himself of an error in the name of his co-
defendant, in a joint judgment against them.....Parker vs. Brashear & Barr, 69
4. A judgment against partners in a sugar estate, must in its form be
joint, and against each one, separately, for his proportion.
Parker vs. Brashear & Barr, 69
5. An order or judgment of the Probate Court, erasing the legal and
special mortgage of a minor, under the act of 1830, and giving a special
mortgage on part only of the tutor's property, in lieu of the first, cannot be
attacked collaterally, when third persons have purchased property released
by these proceedings; it must have its effect, until reversed or annulled in
a direct proceeding or action........
Le Blane vs. His Creditors, 120
6. So, in the suit of a minor, on arriving at the age of majority, to annul
an order or proceedings of the Probate Court, it cannot affect the right of
third persons who purchased under the faith of these proceedings, sanction-
ed by the Court of Probates........
7. Judgment creditors of an estate in the course of administration, cannot
take out execution against the administrator, without first notifying such
judgment to him, that he may show he has no funds to satisfy and pay it.
Carriere & Borduzat vs. Meyer et al., 126
8. Before the plaintiffs can issue a fieri facias, they must first notify their
judgment to the defendant......
.Guidry vs. Guidry's Heirs, 157
9. So, where a judgment of partition, decreeing a balance due by an heir
to his co-heirs, has not been regularly notified to him, and he was not made
a party to it, he will be entitled to a perpetual injunction against such judg-
10. An order of seizure and sale is so far a judgment as to authorize an
appeal; but it is not a judgment in the true and legal sense of the term.
Harrod vs. Voorhies' Administratrix, 254
11. Judgment by default is premature, taken on the first day of the term.
The defendant is allowed the first day on which to file his answer.
Bryan's Administrator vs. Spruell, 313
12. In all cases of judgment by default made final, the plaintiff must
prove his demand; and not having proved the defendant's mark to the note
sued on, the judgment for the plaintiff was reversed, and the case remanded. ib.
13. Judgment affirmed as for a frivolous appeal, but it already bearing
ten per cent. interest only five per cent. damages was allowed.
14. Judgment entered by consent of both parties, reversing the judgment
appealed from, and remanding the case for a new trial.
Sexton et al. vs. Brock, 347
15. The decree or judgment of a foreign court, the jurisdiction of which
not having been questioned, will be considered conclusive on the matters
adjudged by it................................
Brosnaham et al. vs. Turner, 433
16. Where there is a judgment, execution and sale of property shown,
the court will not inquire into the validity of the judgment; and when in
the investigation of a title a judgment is produced, to which one of the liti-
gants is a party, it cannot be inquired into collaterally.
Brosnaham et al. vs. Turner, 442
17. Where a judgment is set up as the basis of the defendant's title, in a
petitory action against him, its validity cannot be examined, or inquired
into collaterally. Never having been reversed or annulled, it must have its
full force and effect.............
18. Where a judgment, writ of execution and sheriff's sale are shown in
support of a title, it necessarily creates a strong presumption in favor of the
title, and is prima facie evidence that the formalities of law have been com-
plied with........................
19. Where it is evident justice requires it, even judgment of non-suit
will not be given, but the case will be remanded for new proceedings.
Legendre vs. Woodrooff, 477
20. Where a judgment is given against the defendant "to be satisfied to
the amount of six hundred and forty-five dollars out of funds attached in
the hands of the garnishee," execution may issue against the latter.
Kirkman et al. vs. Hills, 523
21. Judgment may be rendered against both the defendant and garnishee
at the same time and in the same judgment..........
22. Where a judgment has been rendered against two commercial part-
ners on the confession of one, which is on a writ of error, reversed and
vacated as to the other, he is not thereby released from the debt by a mer-
ger of the debt in the judgment.
State Bank of Illinois vs. Sloo & Byrne et al., 544.
23. If judgment be obtained against one of several debtors in solido, the
others cannot resist the demand of their creditor on the ground that the
debt is merged in the judgment against their co-debtor..........
24. Judgment bearing ten per cent. interest, affirmed with 5 per cent.
damages as a delay case........
...Gollain vs. Jamet, 565
1. Where the husband seeks to recover certain property as his part of
the community in his own right from the heirs of his deceased wife who
claim it under her last will, although he may give to his suit the form of
an action of partition, yet it involves title and the Probate Court is without
jurisdiction........
........Breau vs. Landry et al., 88
2. A party cannot amend his pleadings and add a nominal sum to
increase the demand above three hundred dollars, so as to give appellate
jurisdiction to this court. Such a course will be viewed as an attempt, to
evade the constitutional provision on this subject, and the case will be
dismissed for want of jurisdiction....Red River Rail Road Co. vs. Williams, 182
3. This court will not suffer imaginary claims to be tacked to real ones,
for the purpose of giving jurisdiction in violation of the constitution....... ib.
4. A suit on the bond of a curatrix against her and her sureties, to ren-
der her personally liable, and recover against them individually, must be
instituted in the courts of general or ordinary jurisdiction.
Brown vs. Gunning's Curatrix et al., 238
5. The Court of Probates is without jurisdiction ratione materiæ in a
contest between two co-proprietors of property seeking a partition, and
where one is proceeding as plaintiff à la folle enchere, to have certain proper-
ty purchased by the other, at the probate sale of the joint estate, re-sold at
his risk and costs.........
.Bray's Executrix vs. Bray, 352
6. A party may sue for unliquidated damages for the non-compliance
with the contract of sale, and it is clear, in such a case the Court of Pro-
bates would be without jurisdiction. It is the same if the party sues to
compel a resale at the risk of the purchaser, although the contract of sale
arose under a proceeding nominally in the Probate Court...........
1. The defendant to obtain a trial by jury when sued on his note or
monied obligation, must swear to all the allegations in his plea or answer.
Amado vs. Breda, 257
2. It is essential to a special verdict that it finds the facts, but leaves the
legal consequences to be drawn from such facts to the court.
Campbell vs. His Creditors, 348
3. But where the jury find certain facts true and draw their own conclu-
sions from them in favor of the defendant, it is a general verdict of acquittal. ib.
LAND TITLES AND LAWS.
1. Titles to land must be located according to their calls; and where
part of the place called for by the title is abandoned and another person
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