Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 87
vii, 332 p. ; 22 cm.View a full description of this book.
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AUSTIN, 1849. 173-174
Andrews v. Ioxie.
presentation of tle note for payment at the office of John A. Merle & Co., in
New Orleans, and for the want also of proper averments showill) title in tlhe
plaintiff. They at the same time pleaded that the note sued on was [4I 3]
obtained from them by fraud; and further, "that after the making of tlhe
note, and before the assignment and transfer of the same by the said John1 A.
Merle & Co. to the said Goddard and by him to the plaintiff, and whlilst tile
same was the property and in the possession of the said John A. Merle & Co.,
he, the said John A. Merle, at New Orleans, in the State of Louisiana. in tlle
District Court of the United States for the district of Louisiana, filed his petition
in bankruptcy, which was duly adjudged, and lie, the said John A. Merle,
became thereby bankruptt" and that in the proceedings in bankruptcy certain
commissioners were appointed, who took possession of tlhe effects of said
bankrupt and of said note by assignment and transfer from the said M'arle &
Co., by which they became the legal holders and owners of the note, for the
use of the creditors of the said John A. Merle & Co., and that whilst the note
was so in the possession and ownership of the commissioners, the said Merle
assigned anld transferred it to Goddard, who transferred it to the plaintiff, of
all which tle plaintiff lad notice. The answer contained also a general ldeial.
T'he plaintiff amended his petition by specially stating antd describing the
several indorsements by which he appeared to be the legal owner of the note,
wlichl in his original petition he had omitted.
The death of the defendant Bailey being suggested, the plaintiff dismissed ss
to hilln.
The defendant Hoxie amended his answer, pleading, 1st, that the note sued
on is not the property of the plaintiff, but of one Goddard; 2d, that it was
usurious and void.
The court overruled the exception to the petition, and the cause was tried at
the Fall Term, 1847.
T'le plaintiff gave in evidence the note sued on and the answers of his intestate,
E. Andrews,t to interrogatories propounded to hlim respecting tlie ownlershtip
of the note, tihe alleged balllkruptcy of Jolln A. Merle, aLnd tie time' and
circumstances of the assigomilent of the note. The answers of [I 41] thle intestate
were in substance that tlhe note was transferred by John A. Merle & Co.
to Goddard before its maturity and( before the filing by John A. AMerle & Co.
of their petition for a discllarge in bankruptcy, and that it was subsequently
transferred by Goddard to him (Andrews) for collection. 'The plaintiff also
prov-ed the law of interest of Louisianla as contained in article 2895 of tlie Civil
Code, approved on time 12tl day of April, 1824, and in an act of the Legislature
of that State approved on the 19tlh day of February, 1844. Article 2895 of thle
Civil Code is as follows: "' Interest is either legal or conventional. Legal intecret
is fixed at the following rates, to wit, at five per cent. on all stuns whicil
arc the object of a judicial demand, whence this is called judicial interest, and
all sums discounted by banks at the rate established by their charters. Tiie
amnont of conventional interest cannot exceed tell per cenlt. Tlhe same n must
be fixed by writing, and testimonial proof of it is not admnittedt in any case.'"
The act given in evidence is an act to amend this article of tile code, an1d( does
so amend it that tle amount of conventional interest sihall not thereafter exceed
eight per cent. The plaintiff offered to read. in evi(delce a paper pl'poritilg to
have been made by a notary public il tile city of New Orleans, starting tlh presentnmet,
demand, and protest for noll-payment of the note at tlhe office of
Jolin A. Merle & Co. in tlat city; but to tile admission of this evidence tlle
defendant objected, and the court sustained the objection, upon tle gro1Lundl
that there was no corresponding averment in the petition.
The defenldant proposed to prove by a witness (Crosby) the colsi(lderation and(
circumstances under which tile note w\as given, to wliche the plailitiT objected,
because the note was transferred to tlhe plaintiff before mnaturity an(l without
notice of Iny defect in the consideration, but tile court overruled the obj,,etion;
anld the witness testified that the note in suit and another for the same :llnolntl
were given by Edward Bailey and the defendant IIloxie, as survivilg partners
87
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/95/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .