March, 1833. REEVES vs. ADAMS. such as may be taken down in writing by the clerk during the EASTERN DIS. trial of a cause, and where the whole evidence consists of: testimony taken on interrogatories and written documents, the certificate of the judge to this effect, would suffice. But in the present case, the evidence is composed partly of documents and partly of testimony taken down by the clerk in writing. And he certifies that the record contains a true and correct copy of all the documents on file, transcript of the proceedings, and all the evidence adduced in the case, &c. This, we are of opinion, is sufficient according to the article 896 of the Code of Practice, to authorise this court to examine and decide the case on its merits. The Supreme der the entire case, and decide on its merits, if or the judge a According to this exposition of the present rules of prac- court will consitice, where the record contains all the documents and evidence on which a cause has been heard and determined in either the clerk, the court below, a certificate to this effect, made either the judge a quo, or the clerk of that court, will authorise the tains all the doappellate tribunal to take into consideration the entire cause, the cause has been and decide it on the merits. by quo, certifies that The next point to be investigated, relates to the plea of prescription, made for the first time in this court. The right to plead prescription at so late a stage of a suit, is tolerated by law. Five years having elapsed since the promulgation of the Louisiana Code, and previous to the institution of the present action, which was commenced and prosecuted to obtain the rescission of a contract made between the parties in 1821, the article 3507, is applicable to the present case, according to the decision of this court, rendered in the case, The Union Cotton Manufactory vs. Lobdell, 7 N. S. 110. The prescription established by this article of the Code, is five years for persons present in the state, and ten for those who are absent. In the present instance, both parties are domiciliated in the state. The contract of sale, sought to be rescinded, was entered into in February 1821. In May of the same year, Adams, the vendee, promised by an act, under private signature, to raise the mortgage in question. The present suit was not commenced until October 1831. More than six years after the promulgation of the New the record con cuments and evidence on which heard and deter. mined. March, 1833. M'LEARN vs. PETTIT. EASTERN DIS. Code. Now had the prescription relied on in this court, been pleaded in the court below, and no evidence been adduced to show that it had been interrupted, or the right acquired under it released by the defendant, we are of opinIf prescription ion that judgment ought to have been rendered in his favor. Court, and the Not having been there pleaded, the plaintiff had no opporthe tunity to show any circumstances, which might have taken appearing his case from the government of the article of the Code, here The answer, as has already been stated, amounts be first pleaded in the Supreme plea must be sustained on pleadings and facts on the record, the court will remand relied on. the cause, to af nity in the inferi ford an opportu- virtually to a plea of performance, which is not so inconor court, to dis- sistent with a plea of prescription, that both may not be used which the plea is in the same action. prove the facts on based. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled, and that the cause be remanded, together with the plea of prescription pleaded in this court. The case to be tried de novo. The appellee to pay costs of appeal. M'LEARN vs. PETTIT. APPEAL FROM THE COURT OF THE FIRST DISTRICT. Where ninty-three days had elapsed from the issuing of a commission to Matamoras, under which no testimony had been obtained, and no diligence was shown to have been used in endeavoring to obtain it, the party was properly ruled to trial by the jugde a quo. The facts are stated in the opinion of the court pronounced by PORTER, J. This action is brought to recover from the owner of a vessel the amount of supplies of different kinds furnished for her. The schooner was sequestered, but afterwards released on the defendant giving bond. March, 1833. ΟΗΙΟ INSURANCE CO. vs. EDMONDSON ET ALS. A question is presented on the record in relation to the EASTERN DIS. legality of an affidavit offered by the defendant, in order to obtain a commission to take testimony in Matamoras, which we do not find it necessary to decide, for it appears that he afterwards did obtain a commission, and that ninety-three days elapsed between the period of granting the same, and the day of trial. It does not appear that any testimony was obtained on it, nor did he show that he had used any dili gence to procure the evidence. not err in ruling him to trial. The court, therefore, did Where 93 days had elapsed from the issuing to Matamoras, untimony had been of a commission which no tes obtained, and no diligence was shown to have been used in en tain it, the par On the merits, the case is fully proved; and it is, therefore, deavoring to obordered, adjudged and decreed, that the judgment of the ty was properly District Court be affirmed, with costs. ruled to trial by the judge a quo. OHIO INSURANCE COMPANY vs. EDMONDSON ET ALS. APPEAL FROM THE PARISH COURT OF THE PARISH AND CITY OF NEW-ORL EANS. It is unnecessary for a party to swear to the facts stated in a supplemental petition praying a sequestration, if he has sworn to the same facts stated in his original petition. A contract made in one state or country will be enforced in another unless injury is thereby directly or indirectly done to the inhabitants of the latter. A bill of exceptions to the introduction in evidence of a deposition on the ground that it has not been legally taken, is too general to authorise the Supreme Court to examine the validity of the official seal to the deposition of the officer by whom it was taken. Where maritime interest is reserved, both principal and interest must be risked to confer upon the obligation the character of a bottomry bond. A foreign creditor who has a lien on property is entitled to an equal privilege with a domestic creditor. EASTERN DIS. A written contract, which has not the character of a bottomry bond, but March, 1833. which has been entered into for the loan of money, and confers an express lien on a vessel, cannot by the maritime law, follow her into other countries to the prejudice of rights acquired there. This action was brought in 1830, for the recovery of the sum of six thousand nine hundred and sixty dollars, due on an instrument alleged to be a bottomry bond, upon the steamboat Walter Scott, then in the port of New-Orleans. The bond was made in 1829, at Cincinnati, and signed by James Tallant, W. D. Jones, Joseph Pierce and Thomas Carneal; the first as principal, and the others as his sureties. Its first clause is as follows: "Know all men by these presents, that I, James Tallant, of the city of Cincinnati, Ohio, owner of the good steamboat called the Walter Scott, now lying on the stocks at Cincinnati, (to be launched at my risk as soon as the water will permit,) and necessitated at this time to borrow and take up upon the adventure of said steamboat, the sum of six thousand dollars, for the profitable and advantageous sailing of said boat for the period of one year from the date hereof, which said sum of money the Ohio Insurance Company have, on my request, lent unto me and supplied me with, at the rate of nine hundred and sixty dollars for the said six thousand dollars, for the said period of one year from the date hereof." The bond also contained the following clauses: "I, the said James Tallant, do hereby bind particularly all my right, title and interest in and to the said steamboat, with the freight, tackle and apparel of the same, to pay unto the Ohio Insurance company, the sum of sixty-nine hundred and sixty dollars in one year from the date hereof." "The said boat shall at all times after the expiration of the said period of one year from the date hereof, be liable and chargeable for the payment of the said sixty-nine hundred and sixty dollars, according to the true intent and meaning of these presents; and that it shall be lawful for the said Ohio Insurance Company, by their properly authorised agent or agents, on failure to pay to the said Ohio Insurance Company, the said sum of March, 1833. OHIO sixty-nine hundred and sixty dollars, within the said period EASTERN DIS. of one year from the date hereof, forthwith to enter upon take possession of, and sell at auction, or otherwise, as the said Ohio Insurance Company may judge proper, the said steamboat, and from the avails of such sale, as far as they may go, to pay and satisfy the said debt, with all reasonable and proper costs and charges that may be incurred thereby." In case the boat should be lost during the year, it was agreed, "that then and thenceforth, that every act, matter and thing herein contained on the part of the said principal and sureties, except the payment to the said Insurance Company, of the sum of nine hundred and sixty dollars, shall be void." The plaintiff averred, that this alleged mortgage was endorsed on the enrolment of the boat, and was known to all subsequent purchasers and claimants. The defendant, Edmondson, pleaded his title to the boat by purchase at Louisville, at a public sale, ordered by a court of chancery. He also pleaded usury, and the incapacity of the plaintiffs to enter into such a contract. The Parish Court decided that the bond created a lien on the boat; that Edmondson knew of its existence when he purchased; and, deducting the claims proved for provisions and services rendered, the court ordered that out of the balance of the proceeds of the boat, which had been sold, by consent of parties, during the pendency of the suit, the plaintiffs should be paid. Edmondson appealed. Hennen, Peirce and Hawes, for appellant. Preston and Hoffman, for appellees. 1. The bottomry bond gave a lien on the steam boat Walter Scott, in favor of the plaintiffs. 2 Blackstone's Commentaries, 457. Marshall on Insurance, p. 632. 2. The boat was sold subject to that lien, both by the laws of Kentucky, and in point of fact; because the sale did not arrest the lien. INSURANCE CO |