Duncans in Orleans Par. LA Court Records Part 1

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Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised November 29, 2006

ORLEANS PAR. LA
COURT RECORDS, Part 1
 

"Reports of Cases Argued and Decided in The Supreme Court of the United States, Book VIII, Containing Peters Vol.5, 6, 7 and 8" by Stephen K. Williams; Vol.8 Lawyers Edition pgs.739 to 745; Vol.7 Peters, January term 1832, by Richard Peters, pgs.435 to 452 (El Dorado Co. CA Law Library 10/2003; MAD's very brief extract)
      ABNER L. DUNCAN'S Heirs And Representatives, Plaintiffs In Error v. THE UNITED STATES; Supreme Court of the United States; 32 U.S. 435; 8 L. Ed. 739; January 30, 1833, Decided.
      IN error from the district court of the United States for the eastern district of Louisiana.
      On the 22d November 1829, the district attorney of the United States filed, on behalf of the United States, a petition stating that on the 4th of March 1807, William Carson, Abner L. Duncan and John Carson made and executed their bond to the United States in the sum of ten thousand dollars, by which they bound themselves and each of them, and either of their heirs, executors and administrators, that William Carson, paymaster of the United States, should well and truly perform and discharge, according to law, the duties of the office of paymaster of the United States, within the district of New Orleans.
      The petition alleged a breach of this bond by William Carson, paymaster, in having received in his life time large sums of money in that capacity, which he refused to pay into the treasury of the United States. And also that Abner L. Duncan has deceased, leaving property, and that, by reason of the facts above stated, his heirs, to wit, John N. Duncan, Frances Duncan, wife of Frederic Conrad, Hannah Duncan, Eliza Duncan, and Abner Duncan, all children of the said Abner L. Duncan, these three last named being minors, and also Frances S. Duncan, wife of the said Abner L. Duncan, who has accepted the community of her deceased husband, have become liable to pay, and are indebted to the United States, jointly and severally, in the sum of ten thousand dollars. The petition proceeds to pray that John N. Duncan and Frances S. Duncan, and the aforesaid minors Hannah, Eliza, and Abner Duncan, their tutors and curators, be cited to answer the petition, and that, after due proceedings had, they may have judgment against them, jointly and severally, for the sum of ten thousand dollars, with interest and costs.
      To this petition was annexed a copy of the bond, as follows:
      "Know all men by these presents, that we, William Carson, paymaster for the United States of America, within the district of New Orleans, Abner L. Duncan, John Carson, and Thomas Duncan, Esquires, are held and firmly bound unto the said United States in the penal sum of ten thousand dollars, money of the United States, to be paid to the said United States of America, for which payment well and truly to be made we bind ourselves, and each of us, by himself, our and either of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this fourth day of March one thousand eight hundred and seven.
      "The condition of this obligation is such, that if the above bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform and discharge the duties of said office of paymaster for the United States of America within the district of Orleans, then the above obligation to be null and void, otherwise to remain in full force and virtue.
      WILLIAM CARSON, [SCRAWL], A. L. DUNCAN, [SCRAWL], JOHN CARSON, [SCRAWL]."
      The bond was acknowledged by William Carson and Abner L. Duncan, before a notary public in New Orleans, on the 4th day of March 1807, and by John Carson, before a notary public at Harrisburg, Pennsylvania, on the 21st day of May 1807. The copy of the bond was certified according to the provisions of the act of congress of 3d of March 1817, entitled "an act providing for the prompt settlement of accounts."
      To the petition of the United States, the heirs and representatives of Abner L. Duncan, filed an answer on the 14th day of December 1829, in which all the allegations in the petition were denied, except that Abner L. Duncan did sign the bond therein referred to; but they aver that said Duncan was not, in his life time, nor are the respondents, bound in law to pay the amount thereof, nor any part thereof.
      They further aver, that by and in said bond, it was stipulated and understood (when the same was signed by the said Abner L. Duncan, as security for said Carson), that one Thomas Duncan should also sign the same, as his co-surety, but that the said Thomas Duncan never did sign the same, and said bond never was completed, nor was said Abner L. Duncan ever bound thereby.
      Afterwards, on the 26th of May 1830, an amended answer was filed, stating that the respondents are not liable for the alleged defalcation in the accounts of said Carson, because said Carson acted as paymaster out of the limits of the district of Louisiana, and the said deficiencies, if any exist, occurred without the limits of said district.
      The cause came on for trial upon these pleadings on the 29th day of May 1830 ...
      The Court affirmed the judgment of the district court, which imposed a monetary obligation on the heirs and representatives of the deceased surety.
 

"Reports of cases argued and determined in the Court of Appeals, and in the General Court, of Virginia" by Benjamin Watkins Leigh, Vol.II, Second Edition, pgs.556-570, originally pgs.512-524; February, 1831; Court of Appeals of Virginia (from Jim Dempsey and from CA State Law Library 10/2003)
      HEFFERNAN'S Adm'r &c. v. GRYMES'S Adm'r &c.; Supreme Court of Virginia; 29 Va. 512; 2 Leigh 512; February, 1831
      Samuel W. Sayre, administrator of Philip L. Grymes late of the county of Middlesex deceased, on the 20th October 1808, sold to Thomas Cardineaux, agent in making the purchase for James Mather and Abner L. Duncan of New Orleans, forty-three slaves of Grymes's estate, for 10,033 dollars, whereof Cardineaux paid Sayre 4,233 dollars in cash, and for the payment of the residue within twelve months, he stipulated, that he would give such security in New Orleans, as Henry Heffernan, who was to accompany Cardineaux and the slaves thither, should approve; and if he should fail to give such security, it was stipulated, that the purchasers should retain only so many of the slaves as at a fair average value should be equal to the 4,233 dollars that had been paid in cash; and, in that case, the purchasers were to bear the expense of transportation of the slaves retained by them, and Sayre the expense of transportation of those which should be returned to him; but the whole were to be transported at the risk of the purchasers.
      Sayre at the same time, by letter of attorney, empowered Heffernan to transact for him at New Orleans, all the business arising from the contract with Cardineaux, and also to make sale there of the other slaves of Grymes's estate, without limitation as to the number to be sold, or the terms of sale; and as compensation for these, and for sundry services previously rendered by Heffernan to Sayre, in managing the affairs of Grymes's estate, Sayre agreed to allow Heffernan a commission of ten per cent. on the amount of the proceeds of the sale of slaves already made to Cardineaux, and on the amount of the sales which Heffernan should effect in New Orleans, together with his reasonable expenses.
      Heffernan did not accompany, but promptly followed, Cardineaux and the cargo of slaves, to New Orleans; and, in a letter to Sayre, dated the 13th December 1808, he informed Sayre of his arrival, and that Cardineaux's principals, Duncan and Mather, had offered the uncle of the latter, James Mather the elder, as surety for the deferred payment (5,800 dollars) of the price of the slaves sold to Cardineaux, but that he did not approve, and should not accept, that security.
      On the 31st December 1808, Heffernan on the authority of Sayre's letter of attorney to him, covenanted for Sayre, to sell and deliver to James Mather the younger and William Kenner, a hundred slaves of Grymes's estate, for 40,000 dollars; of which the sum of 5,242 dollars was to be paid to Heffernan in cash; 14,758 dollars, upon the delivery of the slaves at New Orleans (subject to a discount of ten per cent. on 20,000 dollars, the amount of the first two payments); and 20,000 dollars four years from the date of the delivery of the slaves.
      And, on the same 31st December 1808, Heffernan accepted an engagement of Duncan and the younger Mather, indorsed on the contract between Sayre and Cardineaux for the sale of the forty-three slaves to them, that they, Duncan and Mather, would be responsible to Sayre, for the deferred payment of the price of those slaves (5,800 dollars) though, as Cardineaux was the agent of Duncan and Mather in the purchase, they were already bound for the debt, and their engagement to pay it was no additional security. And Heffernan, at the same time, professing to act as the attorney in fact of Sayre, made a contract with Duncan and Mather, also indorsed on Sayre's contract with Cardineaux, whereby he extended the credit for the 5,800 dollars, which they owed Sayre on account of their purchase of slaves from him through the agency of Cardineaux, to four years; which extension of credit was expressed to be "in consequence of an advantageous contract that day entered into with Mather, Duncan &c." meaning (as it plainly appeared) the contract which he had made with Mather and Kenner, for the sale of an hundred slaves of Grymes's estate to them; and thus, it seemed, that Duncan, though not named in this contract, was interested in it.
      Immediately after these transactions, Heffernan left New Orleans, and returned by sea to Baltimore; whence, on the 26th January 1809, he wrote a letter to Sayre, giving him a distinct and full account of what he had done in his agency, and explaining the reasons of his conduct therein; and mentioning particularly, that the cash payment of 5,242 dollars, which he had received upon the contract for the sale of the hundred slaves of Grymes's estate, was the amount of his commission of ten per cent. (namely, on the aggregate of the proceeds of the sales of that parcel of slaves, and of the forty-three slaves sold to Cardineaux) and his expenses; and that he should retain that sum, being the stipulated compensation for his services. And, in this letter, he commended his transactions to Sayre's approbation, by telling him, that they "would secure to him (Sayre) a round sum of 8,000. which he thought, in honor and justice he might make his own:" (an intimation afterwards relied on to prove a confederacy between Heffernan and Sayre to defraud Grymes's estate). And, after Heffernan's return to Virginia, Sayre gave him a written acknowledgment, dated the 6th February 1809, that the 5,242 dollars he had received, was justly retained by him on account of his commissions and expenses, according to agreement.
      Meantime, however, the court of chancery of Williamsburg, at the instance of the creditors of Grymes's estate, upon strong doubts of the fairness of Sayre's and Heffernan's conduct in respect to it, had taken all the slaves of the estate into its own keeping; and shortly afterwards, Sayre's letters of administration of Grymes's estate were regularly revoked, on account of his malconduct therein; and administration de bonis non was granted to Robert West, to whom possession of all the remaining slaves of the estate was delivered: and thus the delivery of the hundred slaves which Heffernan had sold in New Orleans as the agent of Sayre, was anticipated and prevented, and the execution of that contract entirely defeated.
      In 1810, West as the administrator de bonis non of Grymes's estate, exhibited a bill (of foreign attachment) against Mather, Duncan and Kenner, residents of Louisiana, and Heffernan and Sayre home defendants, in the superior court of chancery of Williamsburg; wherein, after setting forth the facts above stated, he charged, That the whole of the transactions were, on the part of Sayre and Heffernan, a confederacy to defraud the creditors of Grymes's estate, and others interested in it, and to share the plunder between them; inferring this fraudulent design from the circumstances of the transactions, and, especially, from the suggestion in Heffernan's letter to Sayre of the 26th January 1809, that his proceedings would secure 8,000. to Sayre, which he thought, Sayre might make his own: That Heffernan betrayed his trust, when he accepted the engagement of Duncan and Mather, to fulfil the contract of Cardineaux, their own acknowledged agent in contracting the debt, instead of insisting on good security, or on a restoration of the property: That Heffernan had not the colour of authority to extend the credit of the debt of Duncan and Mather for the 5,800 dollars, the balance of the purchase money of the slaves they had bought of Sayre through Cardineaux's agency, from twelve months to four years; and therefore, that debt became due to Grymes's estate, on the 20th October 1809, according to the original contract; and West as the administrator de bonis non of Grymes, was entitled to demand it: that Heffernan having received of Mather and Kenner 5,242 dollars, on the executory contract made by him for Sayre with them, for the sale of the hundred slaves of Grymes's estate, and the execution of that contract having been defeated in the manner above mentioned, Heffernan was the debtor of Mather and Kenner, to that amount, as money had and received to their use; and this debt of Heffernan to the absent defendants Mather and Kenner, or at least Mather's moiety thereof, was liable to attachment in the hands of Heffernan, as a garnishee to satisfy the debt due from Duncan and Mather, to Grymes's estate. And the bill prayed, that Heffernan's debt to Mather and Kenner, should accordingly be attached in the hands of Heffernan, as garnishee, that he should be compelled to pay the same, and that the court would apply it to the satisfaction of the debt of Duncan and Mather to Grymes's estate.
      Heffernan and Sayre, in their answers denied the fraudulent design and confederacy imputed by the bill, and Sayre's intention to appropriate the assets of Grymes's estate to his own use; and they insisted that they had full authority, respectively, for all they had done; that their transactions were advantageous to Grymes's estate; and that the money which Heffernan had received from Mather and Kenner, in advance, upon the executory contract for the sale of the hundred slaves, having been accounted for by him to Sayre, to his entire satisfaction, and appropriated to pay the stipulated compensation due Heffernan for his services to Grymes's estate, was Heffernan's own money to all intents and purposes.
      There was an order of publication against the absent defendants, Duncan, Mather and Kenner; and they failing to appear and answer, the bill was regularly taken pro confesso as to them.
      The chancellor dismissed the bill (with the plaintiff's consent) as to the defendants Sayre and Kenner; but he decreed, that the absent defendants Duncan and Mather should pay the plaintiff the balance of the purchase money of the forty-three slaves, bought by them of Sayre, through the agency of Cardineaux, with interest from the 20th October 1809, and that Heffernan should pay the plaintiff to be applied towards the satisfaction of the debt decreed against Duncan and Mather, one half of the money (Mather's) which Heffernan had received of Mather and Kenner, on the executory contract for the sale of the hundred slaves, with interest from the time he received it.
      Counsel: Heffernan immediately appealed from the decree, giving bond with surety to prosecute the appeal &c. in a penalty equal to double the amount of the money he was decreed to pay. The hearing of the cause in this court was delayed by a tissue of abatements, owing to the death first of Heffernan, then of West, and afterwards, of several successive representatives of Heffernan, of West, and of Grymes's estate, and by the failure of the representatives of the parties, from time to time, to sue out process to revive the appeal, with promptitude. It was at length revived in the names of Segar sheriff of Middlesex, and administrator de bonis non of Heffernan, against Braxton, administrator de bonis non of Grymes; and was argued at this term, by Johnson for the appellant, and J. M'C. Wickham for the appellee.
      I. Johnson objected, but neither the original plaintiff West, nor Braxton against whom the appeal was now revived, had any right, as administrators de bonis non of Grymes, to demand the debt due from Duncan and Mather to Sayre, the first representative of Grymes, upon the contract made by him with them, through their agent Cardineaux, whereby Sayre intended to convert, and did convert, the slaves of Grymes's estate to his own use. And he cited Wernick's adm'r v. M'Murdo, 5 Rand. 51, as fully sustaining the objection.
      Wickham answered, that, supposing this would have been an available objection for the absent debtors Duncan and Mather (who had not and could not have appealed from the decree) Heffernan could not make the objection. But, in truth, if the absent debtors were before the court, making the objection, it would not avail them. For, as both Sayre and Heffernan, in their answers, declared that it was not Sayre's intention to convert the money to his own use, the administrator de bonis non was entitled to demand the debt, upon a principle recognized in Wernick's adm'r v. M'Murdo, that though the slaves of Grymes's estate were converted into another fund by Sayre, the property was not altered in the view of a court of equity, because Sayre did not intend by such alteration to convert it to his own use.
      II. Johnson said the money received by Heffernan of Mather and Kenner, upon the second contract for the sale of the hundred slaves, could not possibly constitute a debt from him to Duncan and Mather, the debtors of Grymes's estate upon the first contract made by Sayre with Cardineaux. But waiving this consideration, the money received by Heffernan was his own. He received it under an ample authority given by Sayre, who had full power to give him such authority: he was accountable to Sayre for it: he did account to him for it; and Sayre authorized him to retain it, as the compensation for his services previously stipulated. Mather and Kenner had no right to recover the money they had paid Heffernan as money had and received to their use; not of Heffernan, certainly, for they paid it to him to be paid or accounted for to Sayre; and as to Sayre, they were not bound to forego their specific remedy against him; an action to recover damages, for his breach of the covenant made for him by Heffernan, for the sale and delivery of the hundred slaves. And supposing Sayre had no right to authorize Heffernan to retain the money; that it is, therefore, to be regarded as money belonging to Grymes's estate; and that the representative of Grymes might recover it of Heffernan in an action at law; he surely could not recover it in this suit, a foreign attachment in chancery, to sustain which it is essential that there should be a subject within the jurisdiction of the court, belonging to the absent debtor.
      Wickham said, that by express provision of law (1 Rev. Code, ch. 104, Sec. 49, p. 387). Sayre had no right to sell, but on the contrary, was interdicted from selling, the slaves of Grymes's estate, unless the other personal assets were insufficient to pay the debts, which was not shewn; no right, consequently, to authorize Heffernan to sell, or contract to sell, any of Grymes's slaves; and no right to stipulate or give any compensation to Heffernan out of Grymes's estate, for doing what the law positively interdicted. The covenant for the sale of the hundred slaves, was a palpable violation of Sayre's trust as the representative of Grymes; and could never have been specifically enforced. The money paid to Heffernan by Mather and Kenner, upon that contract, was paid upon a consideration that failed in the very inception of the contract; it was, in effect, paid without consideration. It was, then, money had and received by Heffernan to their use; he was bound ex aequo et bono to refund it to them. In the engagement indorsed by Heffernan on Cardineaux's contract, to extend the credit for the balance due thereon, from one year to four years, he declared that his inducement to make that extraordinary agreement, was the advantageous bargain he had made for the sale of the hundred slaves, which he described as a contract made with Mather, Duncan &c. The &c. meant Kenner. Thus, it appeared, that Duncan was interested in the second as well as in the first contract. The money paid Heffernan on the second contract, was the money of Duncan, Mather and Kenner. And the portion of the debt thus contracted, by Heffernan to the three, which belonged to Duncan and Mather, or to either of them, was subject to be attached and condemned to satisfy the debt due by Duncan and Mather to Grymes's estate upon the first contract. Shaver v. White, 6 Munf. 110. As to Sayre and Heffernan, he said, it was impossible the court should countenance their conduct in these transactions: the actual sale of forty-three slaves of Grymes's estate, without occasion and against law (a proceeding, in which, obviously, Heffernan confederated with Sayre); the attempt to sell the residue by hundreds; the exorbitancy of the compensation stipulated to be paid Heffernan, for his assistance in this injustice to the estate; the fact of Sayre's allowing the money received by Heffernan, to be retained by him as compensation for his services, after the court of chancery had taken the estate from him, on account of his misconduct, and when the revocation of his letters of administration was certain; every circumstance of these transactions evinced the iniquitous character of them, and took from the parties all claim to countenance or favour.
      [Opinion] By the court, Carr, J., absent Coalter, J: The first point made in the argument for the appellant, was, that the administrator de bonis non could not support this demand, because the first administrator by the sale of the forty-three slaves had so converted the property, that it amounted to an administration, and the covenant by which the vendees of the slaves were bound for the balance of the purchase money, would enure, not to the administrator de bonis non, but to the representative of the first administrator. And for this position the case of Wernick's adm'r v. M'Murdo was relied on. This question might well have been raised by the absent defendants, if they had appeared and given security, before the decree, or had used their privilege to open the decree within seven years; and though they did not appear, it was proper matter to be considered, and we must presume, was considered by the court below. But it is very questionable with me, whether the home defendants can raise it. The foreign attachment had two objects, perfectly distinct, 1. to get a decree against the absent debtors for a debt claimed to be due from them; 2. to get an order against the home defendant Heffernan to pay to the plaintiff whatever sum (to the amount of that debt) he might be found to owe the absentees. With respect to the debt claimed of the absentees, the home defendant was not called on to answer, and had nothing to do with it: as to that, the plaintiff had to produce evidence of his claim, and the court, if satisfied therewith, would decree against the absentees. The home defendant was called on simply to say, whether he owed the absentees any debt, and to what amount? If he admitted that he had received property or money from them, but claimed it as his own, the court would judge upon the allegations and proofs, whether it was his or theirs: if it adjudged the debt to belong to the absentees, it would decree, that the home defendant should pay it, (or so much as was proper) to the plaintiff. Of this decree, the home defendant might complain, and take an appeal from it: but such appeal, I apprehend, would bring before the appellate court, that part of the case only which concerned the appellant: the residue would remain unappealed from, and therefore not subject to the revision of this court. That this is so, seems apparent from several considerations: 1. By what right should the home defendant be empowered to appeal for the absentees? His answer does not put in issue the justice of the plaintiff's demand against them: he is not their agent: he claims nothing jointly with them. That part of the decree from which he appeals, so far from being against them, is in their favour; for the money which the home defendant claims as his, that decree decides to be theirs, and orders him to pay it towards their debt to the plaintiff. Again: how can there be an appeal as to the absent defendants, when they have never entered their appearance in the cause? The law is express, that a day is to be given to the absentees to appear, and give security for performing the decree; if they fail, the court is to take such proof as the plaintiff offers, and, if satisfied therewith, shall make such decree as shall seem just &c. 1 Rev. Code, ch. 123, Sec. 2, p. 474, 5. If the absentee, within seven years, shall return and appear openly, the plaintiff shall serve him with a copy of the decree; and thereupon, he may within twelve months, or if not served with the decree he may within seven years, appear in court, and petition to have the cause reheard; and upon giving such security as the court shall require, shall be admitted to answer the bill, issue may be enjoined, witnesses examined, and such other proceedings, decree &c. as shall seem just: but if the absentee shall not within twelve months after service of a copy, or if not served, within seven years after the decree pronounced, appear as aforesaid &c. the decree, so made, shall stand absolutely confirmed against such absentee. The decree of the court of chancery in this case, was pronounced in 1813, and in 1831, we are called on to reverse it; no appearance having been entered by the absentees; no security given. Suppose the absentees within seven years had wished to appear, where must such appearance have been entered? Assuredly in the court where the decree was pronounced. And this proves that the appeal of the home defendant did not bring up their part of the case; for it could not be depending both here and there at the same time. Again: the appellant gives a bond, which is saved if he prosecutes his appeal with success. Suppose the home defendant here had proved that he owed the absentees nothing, would he not have succeeded completely, and reversed the decree in every thing which connected him? One more consideration: the sum charged to be in the hands of the home defendant belonging to the absent debtor may not amount to a tenth part of the debt due from the absentee to the plaintiff: if the appeal brings up the whole case, there ought to be security given on the appeal, to cover the plaintiff's whole demand; for no one will deny, that if the absentees had appeared in the court below, and taken an appeal from that court, they would have had to give security to cover the whole demand against them; and yet would it not be most oppressive on the home defendant, to say that he should not be allowed to appeal, unless he gave security to cover the whole demand, when he has nothing to do with nine tenths of it? The appeal bond, in the present case, is not before us; but we see the amount in which it was directed to be taken; and that shews, that it was meant only to cover the sum which the home defendant was decreed to pay to the plaintiff. From these considerations, it is clear to me, that the case as between the plaintiff and absent defendants is not brought up by the appeal of Heffernan.
      If it were, I should have no difficulty in saying, that trying the question by the very principles established in Wernick's adm'r v. M'Murdo, the administrator de bonis non might well recover against the absent defendants in the present case. This case falls within that class distinctly treated of there, where the executor has changed the property, as by investing money in the funds, transferring it from one particular stock to another, or the like, but this done for the benefit of the estate, and without intention of making the money his own, as is declared by Sayre in his answer, to have been the case here. In such cases, though the act may amount to a conversion at law, equity, looking at the quo animo, will follow the property, and consider it still unadministered.
      It will be remarked, that the bill was dismissed by consent, as to Sayre the other home defendant, so that the single question before the court is this: did the chancellor err in decreeing that Heffernan should pay the money to the plaintiff, as so much money due from him, to the absent defendant Mather? I at first thought the decree right; in which opinion, I was probably influenced by that strong disapprobation, which every ingenuous mind must feel at the moral aspect of this whole transaction. But closer and more dispassionate examination has compelled me to change my first impression. Heffernan, in the sale of the hundred slaves to Mather and Kenner, acted solely as the agent of Sayre, under a written authority: he received the first payment in that character: and as there was no fraud practised by him towards Mather and Kenner (whatever he might have meditated towards the estate of Grymes) and as also, immediately on his return, he accounted with Sayre, to his satisfaction, for the money received, he could not in any point of view, be considered as having in his hands money or property belonging to Mather and Kenner or either of them. It is not material, therefore, to consider, whether, if the joint funds of Mather and Kenner had been in his hands, the interest of Mather in that fund could have been condemned to pay the debt of Mather and Duncan.
      Upon the whole, I conclude, that the decree should be reversed, and the bill dismissed.
      The other judges concurred.
 

"Reports of Cases Argued and Decided in The Supreme Court of the United States" Book XIII (13 L Ed. pgs.1050 to 1051), by Stephen K. Williams, Containing Howard Vol.9, 10, 11, and 12; (12 How pgs.423 to 426) (El Dorado Co. CA Law Library 12/2003)
      DUNCAN LINTON, CHARLOTTE LINTON and her husband, FRANCIS SURGETTE, STEPHEN DUNCAN guardian of MARY LINTON and JOHN LINTON, Minors, Plaintiffs in error, v. FREDERICK STANTON; Supreme Court of the United States; 53 U.S. 423; 13 L. Ed. 1050; 12 HOW 423; March 1, 1852, Decided December 1851 Term.
      This case was brought up from the Supreme Court of the State of Louisiana for the Eastern District, by a writ of error issued under the 25th section of the Judiciary Act.
      The plaintiffs in error, on the 19th June, 1848, filed their petition in the Third District Court of New Orleans, stating themselves to be residents of Mississippi, and the only heirs and representatives of John Linton, deceased, and as such in possession of his property.
      That on the 13th May, 1839, the defendant, Stanton, owed the estate of John Linton, then deceased, the sum of $11,446.60, and on that date executed his two promissory notes in favor of Stephen Duncan, (one of the petitioners, and administrator to Linton,) one for $5,856.40, due the 1st April, 1841, the other for $5,590.20, payable the 1st April, 1842.
      The petitioners further state, that on the 25th August, 1842, and also on the 25th December, 1843, the defendant promised to pay each of these notes, but has neglected and refused to do so, and that the debt still remains due and unpaid.
      The two notes, they state, were made and fell due in the State of Mississippi, where the legal interest on all debts due and unpaid, is 8 per cent. That the defendant lives in Mississippi, but was then in New Orleans.
      They pray judgment against him for the amounts of the notes, with interest from 13th May, 1839, till paid, and for general relief.
      Stanton filed his exceptions, alleging that the petition did not fully set out and state the nature of the demand, requiring the plaintiffs to state whether the promises charged were verbal or written, and if written, claiming oyer.
      Plaintiffs filed two letters from Stanton to Duncan, dated, respectively, the 25th day of August, 1842, and the 25th December, 1843, to which in their supplemental petition they refer as the written evidence of the promises alleged in their original petition, and also charge verbal promises by Stanton to pay, made both before and after the dates of these letters.
      To this supplemental petition, Stanton filed his exception, alleging that the verbal promises above charged were insufficiently stated, from failure to mention to whom and when they were made.
      The plaintiffs filed an amended petition, stating that these verbal promises were made to Stephen Duncan, the representative of John Linton, on each and every day of the years 1842, 1843, 1844, 1845, 1846, and 1847.
      Stanton's answer denies all the allegations of the original and supplemental petitions; and specially pleads, that on the -- day of    , 1842, he applied to the United States District Court, in and for the State of Mississippi, where he then resided, for the benefit of the bankrupt law of the United States; and after due proceeding had, he obtained his discharge and certificate, and that these proceedings and discharge took place after the date of the note sued on.
      Pleads his discharge in bar, and also that the plaintiffs' demand is barred by prescription.
      His supplemental answers allege that the notes on which plaintiffs sue, and which were made before his bankruptcy, were secured by a deed of trust or mortgage upon real estate, and that the plaintiffs, or Duncan, for their use, purchased it and paid for the same by said notes, thus receiving payment and compensation. And further, that by the law of Mississippi, verbal promises to pay a debt discharged by bankruptcy are not binding.
      Amongst the testimony offered on both sides, the defendant produced the proceedings in bankruptcy.
      The District Court of New Orleans decreed in favor of the defendant.
      The plaintiffs appealed to the Supreme Court of Louisiana, which confirmed the decision below, because, --
      1st. The jurisdiction of the United States District Court in matters of bankruptcy not having been contested, a decree of that court, declaring that all the requisitions of the bankrupt act had been complied with, was conclusive when drawn collaterally into question.
      2d. Because the subsequent promises of the defendant, relied on by the plaintiffs, did not include this debt.
      The plaintiffs then brought the case up to this court.
      (opinion) This is a writ of error to the Supreme Court of Louisiana for the Eastern District, and a motion has been made to dismiss it for want of jurisdiction.
      The plaintiffs in error, it appears, filed their petition in the Third District Court of New Orleans, against the defendant, to recover certain sums of money which they alleged were due to them on two promissory notes which had been executed by the defendant.
      The defendant pleaded his discharge under the bankrupt law of the United States, and at the trial offered in evidence the record of the proceedings in bankruptcy in the District Court in which he had obtained his certificate. Objections were taken to the regularity and validity of this discharge, but they were overruled by the court, and judgment rendered for the defendant. The plaintiffs appealed to the Supreme Court of the State, where the judgment of the court below was affirmed, and this writ of error is brought to reverse that judgment.
      The writ must, we presume, have been prosecuted under a misconstruction of the 25th section of the act of 1789, ch. 20.
      We have no jurisdiction over the judgment of a State court upon a writ of error, except in the cases specified in that section. And the jurisdiction of this court is there limited with great care and in plain terms. It gives a writ of error to this court where a party claims a right or exemption under a law of Congress, and the decision is against the right claimed. Undoubtedly the defendant in pleading his discharge under the bankrupt law claimed a right or exemption under a law of Congress. But in order to give jurisdiction something more is necessary; the judgment of the State court must be against the right claimed. In the case before us the decision was in favor of it, and consequently no writ of error will lie to this court under the provisions of the act of 1789.
      And as we have no jurisdiction, we cannot examine into the objections made to the validity of the proceedings in bankruptcy. The judgment of the State court that they were valid, and the defendant thereby discharged from the debt due to the plaintiffs, is conclusive between the parties.
      Nor has this court the power to examine into the other question which appears to have arisen as to the legal effect of certain promises which the defendant is alleged to have made after he obtained his certificate in the bankrupt court. The legal obligation of such promises depends upon the laws of the State in which they were made; and in suit in a State court the decision of that question by the highest tribunal of the State cannot be reviewed in any court of the United States.
      This case must therefore be dismissed for want of jurisdiction.
      This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana for the Eastern District, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.
      MAD: See also, in Monroe Co. Arkansas, the case of DUNCAN et al. v. BISCOE et al, Trustees R. E. BANK; Supreme Court of Arkansas; 7 Ark. 175; January, 1846, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January and July term 1846 and January term 1847" ("Arkansas Reports") Vol.7, by E.H. English, pgs.175 to 194 (California State Law Library, Sacramento, 12/2003)
      MAD: See also, in Monroe and Pulaski Co. Arkansas, the case of PEAY, Receiver, Etc., v. DUNCAN et al; in which the original complainants were Henry L. Biscoe, Sandford C. Faulkner, and others, residuary trustees of the Real Estate Bank for which Gordon N. Peay became receiver and substituted complainant, and the defendants were William B. Duncan, Francis Surget, John Ker, Alfred Mullins, William McBride and John Smith; Supreme Court of Arkansas; 20 Ark. 85; January, 1859, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May and October terms 1859" ("Arkansas Reports") Vol.20, by L.E. Barber, pgs.85 to 92 (California State Law Library, Sacramento, 12/2003)
      MAD: See also, in Jackson Co. Arkansas, the case of WILLIAM BYERS, Appellant, v. FRANCIS SURGET; Supreme Court of the United States; 60 U.S. 303; 15 L. Ed. 670; 19 HOW 303; March 5, 1857, Decided; December 1856 Term; from "U.S. Supreme Court Reports - Cases argued and decided in the Supreme Court of the United States" Vol.15 Lawyers Edition, by Stephen K. Williams, 1882; includes Vol.60 U.S. Reports, Dec. 1856; also reported in Vol.19 Howard and Vol.1 Miller's Decisions; pages 670-674 in Vol.15 Lawyer's Edition; pages 303-312 in Vol.60 U.S. Reports (El Dorado Co. CA Law Library 12/2003)
 

Go to the Orleans Par. LA Court Records Part 2
      ALEXANDER FERGUSON appellant v. CHARLES H. SUTPHEN appellee; Supreme Court of Illinois, at Springfield; 8 Ill. 547; 3 Gilm. 547; December, 1846, Decided.
      ALEXANDER FERGUSON et al., Appellants, vs. ASA TALLMADGE, Appellee; Supreme Court of Illinois, at Ottawa; 20 Ill. 581; April, 1858, Decided.

Go to the Orleans Par. LA Court Records Part 3
      LOGAN HUNTON v. THE UNITED STATES; United States Court of Claims; 6 [3] U.S. Cong. Rep. C.C. 174; May 4, 1858
      BUTLER vs. KENNER & al; Supreme Court of the State of Louisiana, Eastern District; 2 Mart. (n.s.) 274; March, 1824, Decided.
      GEORGE CURRIE DUNCAN v. LUCIUS W. ELAM; Supreme Court of Louisiana, Western District, Alexandria; 1 Rob. 135; October, 1841, Decided.
      G. CURRIE DUNCAN, President, &c. for the use and benefit of GEORGE WINGFIELD & CO. v. SUN MUTUAL INSURANCE COMPANY; Supreme Court of Louisiana, New Orleans; 12 La. Ann. 486; June, 1857, Decided.

Go to the Orleans Par. LA Court Records Part 4
      EDWARD DUNCAN v. J.H. BLOOD, and VALZ, and DE RHAM; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 11; January, 1850, Decided.
      DIGGS, McKEEVER & Co., v. JESSE R. KIRKLAND & Co., and LOWE, PATTISON & Co. -- TAYLOR & RICHARDSON, Intervenors; Supreme Court of Louisiana, New Orleans; 8 La. Ann. 309; June, 1853, Decided.
      L. C. DUNCAN v. LABOUISSE et als; Supreme Court of Louisiana, New Orleans; 9 La. Ann. 49; January, 1854, Decided.
      JAMISON & McINTOSH v. L. C. DUNCAN; Supreme Court of Louisiana, New Orleans; 12 La. Ann. 785; December, 1857, Decided.
      WIDOW CONANT et al. v. L. MILLAUDON et al; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 542; June, 1850, Decided.

Go to the Orleans Par. LA Court Records Part 5
      MICHAEL DUNCAN v. MARY DUNCAN; No. 3389, Supreme Court of Louisiana, New Orleans; 26 La. Ann. 532; May, 1874, Decided.
      MARY DUNCAN vs. MICHAEL DUNCAN; No. 5438, Supreme Court of Louisiana, New Orleans; 29 La. Ann. 829; November, 1877, Decided.
 

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