John Wilcox and Others v. Crester Hunt and Others

• Decision Date: 01 January 1839
• Citation: 38 U.S. 378,10 L.Ed. 209,13 Pet. 378
• Parties: JOHN WILCOX AND OTHERS, v. CRESTER HUNT AND OTHERS
• Court: U.S. Supreme Court

38 U.S. 378

13 Pet. 378

10 L.Ed. 209

JOHN WILCOX AND OTHERS, v. CRESTER HUNT AND OTHERS.

January Term, 1839

IN error to the District Court of the United States, for the eastern district of Louisiana.

Mr. Justice M KINLEY delivered the opinion of the Court:——

This case comes before this Court upon a writ of error to the District Court of the United States, for the eastern district of Louisiana.

The defendants in error commenced their suit by petition in the Court below, upon a deed of trust executed by Wilcox, one of the plaintiffs in error, in the state of New York; by which he covenanted, among other things, to pay to the defendants in error the sum of twenty-five thousand two hundred and six dollars and eight cents, being the amount of certain promissory notes, mentioned and enumerated in said deed of trust, payable to several persons in the city of New York. Others, to wit, James B. Hulin, Alfred Hennen, and E. V. Jourdain, were made defendants to the suit, for the purpose of subjecting money in their hands, belonging to Wilcox, to the payment of the debt sued for, according to the mode of proceeding in Louisiana. Wilcox pleaded a general denial, and the plea of reconvention, claiming damages of the plaintiffs below for breaches on their part of the covenants in the deed of trust, to be set off against the amount sought to be recovered against him.

At the trial the Court ordered the plea of reconvention to be stricken out, to which Wilcox excepted. This plea is authorized by the Louisiana Code of Practice, which was adopted by statute subsequent to the passage of the act of Congress of the 26th of May, 1824, regulating the practice in the District Court of the United States, for the eastern district of Louisiana, and which at the time of the trial had not been adopted as a rule of practice of that Court. It being a plea not authorized by the rules governing the practice of the Court, it was properly stricken out.

Three other bills of exceptions were taken at the trial to the rulings of the Court. By the first, it appears, the plaintiffs offered to prove the signatures of the defendant Wilcox, and of the plaintiffs to the deed sued on. The defendant, Wilcox, objected to this evidence; because it appeared by the deed that there were two subscribing witnesses to it. But the Court overruled the objection, and admitted the evidence, upon the ground that, as the deed was executed in the state of New York, it was fairly presumable that the subscribing witnesses resided there; and which was a sufficient reason for letting in secondary evidence to prove the execution of the deed. When a contract is proved to have been made...