WILCOX V. HUNT, 38 U. S. 378 (1839)

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U.S. Supreme Court

Wilcox v. Hunt, 38 U.S. 13 Pet. 378 378 (1839)

Wilcox v. Hunt

38 U.S. (13 Pet.) 378


In the District Court of Louisiana, the defendant pleaded the plea of reconvention, which is authorized by the Code of Practice of Louisiana. The district court, on the motion of the plaintiffs, ordered the plea to be stricken off. The Code of Practice of Louisiana was adopted in Louisiana by a statute of that state passed after the Act of Congress of 26 May, 1824, regulating the practice of the District Court of the United States for the Eastern District of Louisiana, and the practice according to that code had not been adopted as part of the rules of practice of the district court when the plea was stricken off. Held that the plea was properly stricken out.

Where a deed of trust was made to secure the payment of certain promissory notes in an action upon the deed, the notes may be read in evidence to prove the amount of the debt intended to be secured by the deed without the notes having been assigned by the payees to the plaintiffs, the trustees in the deed.

The general rule is that the allegations in the answer or plea in an action and the proof must agree. Where there were no averments in a plea to authorize the proof offered by a defendant, it was properly rejected by the court.

In Louisiana, when a contract having subscribing witnesses to it is proved to have been made out of the state, the state courts presume the witnesses reside at the place where the contract was made and are not subject to process issued out of those courts. They therefore allowed secondary evidence to prove the contract. This being the settled doctrine of the Supreme Court of Louisiana, the District Court of the Eastern District of Louisiana properly admitted evidence of the handwriting of the witnesses to a deed of trust, which had been executed out of Louisiana, to go to the jury.

There is a material difference between the laws of New York and those of Louisiana in relation to the dignity of instruments in writing. Contracts made before a notary and two witnesses, called authentic acts, are, by the laws of Louisiana, elevated above all others. A contract under seal does not appear to be of greater dignity in Louisiana than one without seal, and those who sue in the courts of that state must abide the consequences of these rules. The validity and interpretation of contracts are to be governed by the laws of the country where they are made, but the remedy roust be according to the laws of the country where the suit is brought.

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