Gambar halaman

one be not already named by the party.

385. Every interdiction shall be pronounced by the judge of the parish of the domicile or residence of the person to be interdicted.

386. The acts of madness, insanity or fury, must be proved to the satisfaction of the judge, that he may be enabled to pronounce the interdiction, and his proof may be established, as well by written as by parol evidence; and the judge may moreover interrogate or cause to be interrogated by any other person commissioned by him for that purpose, the person whose interdiction is petitioned for, or cause such person to be examined by physicians, or other skilful persons, in order to obtain their report upon oath on the real situation of him who is stated to be of unsound mind.

387. Pending the issue of the petition for interdiction, the judge may, if he deems it proper, appoint for the preservation of the movable, and for the administration of the immovable estate of the defendant, an administrator pro tempore.

388. Every judgment, by which an interdiction is pronounced, shall be provisionally executed, notwithstanding the appeal.

389. In case of appeal, the appellate court may, if they deem it necessary, proceed to the hearing of new proofs, and question or cause to be questioned, as above provided, the person whose interdiction is petitioned for, in order to ascertain the state of his mind.

390. On every petition for interdiction, the costs shall be paid out of the estate of the defendant, if he shall be interdicted, and by the petitioner, if the interdiction prayed for shall not be pronounced.

391. Every sentence of interdicttion shall be published three times, in at least two of the newspapers printed

in New-Orleans, or made known by advertisements at the door of the court-house of the parish of the domicil of the person interdicted, both in the French and English languages; and this duty is imposed upon him who shall be appointed curator of the person interdicted, and shall be performed within a month after the date of the interdiction, under the penalty of being answerable for all damages to such persons as may, through ignorance, have contracted with the person interdicted.

392. No petition for interdiction, if the same shall have once been rejected, shall be acted upon again, unless new facts, happening posterior to the sentence shall be alleged.

393. The interdiction takes place from the day of presenting the petition for the same.

394. All acts done by the person interdicted, from the date of the filing the petition for interdiction until the day when the same is pronounced, are null.

'395. No act anterior to the petition for the interdiction, shall be annulled, except where it shall be proved that the cause of such interdiction notoriously existed at the time when the deeds, the validity of which is contested, were made, or that the party who contracted with the lunatic or insane person, could not have been deceived as to the situation of his mind.

Notoriously, in this article, means that the insanity was generally known by the persons who saw and conversed with the party.

396. After the death of a person, the validity of acts done by him cannot be contested for cause of insanity, unless his interdiction was pronounced or petitioned for, previous to the death of such person, except in cases in which mental alienation manifested itself within ten days previous to the decease, or in which the proof of the want of reason results from the act itself which is contested.

397. Within a month, to reckon from the date of the judgment of interdiction, if there has been no appeal from the same, or if there has been an appeal, then within a month from the confirmative sentence, it shall be the duty of the judge of the parish of the domicile or residence of the person interdicted, to appoint a curator to his person and estate.

398. This appointment is made according to the same forms as the appointment to the tutorship of minors.

After the appointment of the curator to the person interdicted, the duties of the administrator, pro tempore, if he shall not have been appointed curator, are at an end; and he shall give an account of his administration to the curator.

399. The married woman, who is interdicted, is of course under the curatorship of her husband. Nevertheless it is the duty of the husband, in such case, to cause to be appointed by the judge, a curator ad litem; who may appear for the wife in every case when she may have an interest in opposition to the interest of her husband, or one of a nature to be pursued or defended jointly with his.

400. The wife may be' appointed curatrix to her husband, if she has, in other respects, the necessary qualifications.

She is not bound to give security.

401. No one, except the husband with respect to his wife, or wife with respect to her husband, the relations in the ascending line with respect to the relations in the descending line, and vice versa, the relations in the descending line with respect to the relations in the ascending line, can be compelled to act as curator to a person interdicted more than ten years, after which time the curator may petition for his discharge.

Vol. I.—59.

402. The person interdicted is, in every respect, like the minor who has not arrived at the age of puberty, both as it respects his person and estate; and the rules respecting the guardianship of the minor, concerning the oath, the inventory and the security, the mode of administering, the sale of the estate, the commission on the revenues, the excuses, the exclusion or deprivation of the guardianship, mode of rendering the accounts, and the other obligations, apply with respect to the person interdicted.

403. When any of the children of the person interdicted is to be married, the dowry or advance of money to be drawn from his estate, is to be regulated by the judge, with the advice of a family meeting.

404. According to the symptoms of the disease, under which the person interdicted labours, and according to the amount of his estate, the judge may order that the interdicted person be attended in his own house, or that he be placed in a bettering-house, or indeed if he be so deranged as to be dangerous, he may order him to be confined in safe custody.

405. The income of the person interdicted shall be employed in mitigating his sufferings, and in accelerating his cure, under the penalty against the curator of being removed in case of neglect.

406. He who petitions for the interdiction of any person, and fails in obtaining such interdiction, may be prosecuted for and sentenced to pay damages, if he shall have acted from motives of interest or passion.

407. Interdiction ends with the cause which gave rise to it. Nevertheless the person interdicted cannot resume the exercise of his rights, until after the definite judgment by which a repeal of the interdiction is pronounced.

408. Interdiction can only be revoked by the same solemnities which were observed in pronouncing it.

409. Not only lunatics and idiots are liable to be interdicted, but likewise all persons who, owing to certain infirmities, are incapable of taking care of their persons and administering their estates. %

Such persons shall be placed under the care of a curator, who shall be appointed and shall administer in conformity with the rules contained in the present chapter. • 410. The person interdicted cannot be taken out of the state without a judicial order, given on the recommendation of a family meeting, and on the opinion delivered under oath of at least two physicians, that they believe the departure necessary to the health of the person interdicted.

411. There shall be appointed by the judge a superintendent to the person interdicted; whose duty, it shall be to inform the judge, at least once in three months, of the state of the health of the person interdicted, and of the manner in which he is treated.

To this end, the superintendent shall have free access to the person interdicted, whenever he wishes to see him.

412. It is the duty of the judge to visit the person interdicted, whenever from the information he receives, he shall deem it expedient.

This visit shall be made at times when the curator is not present.

41 3. Interdiction is not allowed on account of profligacy or prodigality.

Vide Ray's Med. Jur. ch. 25; 1 Hagg. Eccl. Rep.. 401; Committee; Habitual Drunkard.

INTERESSE TERMINI, estates, an interest in the term. A bare lease of land does not vest any estate in the lessee, but gives him a mere right of entry in the tenement, which right is called his interest in the term or intcreese termini. Vide Co. Litt. 46;

2 Bl. Com. 144; 10 Vin. Ab. 348; Dane's Ab. Index, h. t.

INTEREST, estates, is the right which a man has in a chattel real, and more particularly in a future term. It is a word of less efficacy and extent than estates, though, in legal understanding, an interest extends to estates, rights and titles which a man has in or out of lands, so that by a grant of his whole interest in land, a reversion as well as the feesimpleshall pass. Co.Litt.345.

INTEREST, contracts, is the right of property which a man has in a thing, commonly called insurable interest. It is not easy to give an accurate definition of insurable interest. The policy of commerce and the various complicated rights which different persons may have in the same thing, require that not only those who have an absolute property in ships and goods, but those also who have a qualified property therein may be at liberty to insure them. For example, when a ship is mortgaged, after the mortgage becomes absolute, the owner of the legal estate has an insurable interest, and the mortgagor, on account of his equity, has also an insurable interest. 2 T. R. 1«8; 1 Burr. 480; and see 1 T. R. 745; Marsh. Ins. h. t.; 6 M. & W. 224. A man may not only inI sure his own life for the benefit of his I heirs or creditors, and assign the benefit of this insurance to others j having thus or otherwise an interest in his life, but he may insure the life of another in which he may be interested. Marsh. Ins. Index, h. t.; Park, Ins. Index, h. t.; 1 Bell's I Com. 629, 5th ed.; 9 East, R. 72. Vide Insurance.

INTEREST, evidence, is the | benefit which a person has in the | matter about to be decided and which i is in issue between the parties. By the term benefit is here understood some pecuniary or other advantage, which, if obtained, would increase his estate. This interest renders such person incompetent to be a witness in such a case. To disable a witness, his interest must be a legal, certain and immediate benefit in the cause or matter in issue, or in the record as an instrument of evidence. 1 Phil. Ev. 36; Stark. Ev. pt. 4, p. 744; and must have been acquired without fraud. 3 Camp. R. 380; 1 M. & S. 9; 1 T. R. 37. It must be a legal interest as contradistinguished from mere prejudice or bias, arising from relationship, friendship, or any of the numerous motives by which a witness may be supposed to be influenced. Leach, 154; 2 St. Tr. 334, 891; 2 Hawk. c. 46, s. 25. The interest must be a present, certain, vested interest, and not uncertain and contingent. Doug. R. 134; 1 P. Wms. 287; 3 Serg. & Rawle, 132; 4 Binn. R. 83; 2 Yeates, R. 200; 5 Johns. R. 256; 7 Mass. R. M. A deposition of a witness, made at a time when he had no interest, who afterwards becomes interested, may be read in evidence. I Hoff. R. 21. The magnitude of the interest is altogether immaterial. 5 T. R. 174; 2 Vern. R. 317; 2 Greenl. R. 194; 11 Johns. R. 57. To the general rule that interest renders a witness incompetent, there are some exceptions; 1st. When the witness is reduced to a state of neutrality by an equipoise of interest the objection to his testimony ceases. 7 T. R. 480, 481, n.; 1 Bibb, R. 298; 2 Mass. R. 108; 2 Serg. & Rawle, 119.— 2d. In some cases the law admits the testimony of one interested, from the extreme necessity of the case: upon this ground the servant of a tradesman is admitted to prove the delivery of goods and the payment of money, without any release from the master. 4 T. R. 490; 2 Litt. Rep. 27. The objection to incompetency on the ground of interest may be removed

by an extinguishment of that interest by means of a release, executed either by the witness or by those who have a claim upon him, or by payment. Stark. Ev. pt. 4, p. 757. See 5 Benth. Rationale Jud. Ev. 628-692, where he combats the established doctrines of the law. Vide Balance; Interest.

INTEREST FOR MONEY, in contracts, is the compensation which is paid by the borrower to the lender or by the debtor to the creditor for its use. It is proposed to consider, I, who is bound to pay interest; 2, who is entitled to receive it; 3, on what claim it is allowed; 4, what interest is allowed; 5, how it is computed; 6, when it will be barred; 7, rate of interest in the different states.

§ 1. Who is bound to pay interest. 1. The contractor himself, who has agreed, either expressly or by implication, to pay interest, is of course bound to do so.—2. Executors, administrators, assignees of bankrupts or of insolvents, and trustees, who have kept money an unreasonable length of time, and have made or who might have made it productive, are chargeable with interest. 2 Ves. 85; 1 Bro. C. C. 359; Id. 375; 2 Ch. Cas. 235; Chan. Rep. 389; 1 Vern. 197; 2 Vern. 548; 3 Bro. C. C. 73; Id. 433; 4 Ves. 620; 1 Johns. Ch. R. 508; Id. 527, 535, 6; Id. 620; 1 Desaus. Ch. R. 193, n.; Id. 208; 1 Wash. 2; 1 Binn. R. 194; 3 Munf. 198, pl. 3; Id. 289, pl. 16; 1 Serg.

6 Rawle, 241; 4 Desaus. Ch. Rep. 463; 5 Munf. 223, pi. 7, 8; 1 Ves. jr. 236; Id. 452; Id. 89; 1 Atk. 90; see 1 Supp. to Ves. jr. 30; 11 Ves. 61; 15 Ves. 470; 1 Ball & Beat. 230; 1 Supp. to Ves. jr. 127, n. 3; 1 Jac. <Sc Walk. 140; 3 Meriv. 43; 2 Bro. C. C. 156; 5 Ves. 839;

7 Ves. 152; 1 Jac. & Walk. 122; 1 Pick. 530; 13 Mass. R. 232; 3 j

Call, 538; 4 Hen. & Munf. 415; 2 Esp. N. P. C. 702; 2 Atk. 106; 2 Dall. 182; 4 Serg. <k Rawle, 116; 1 Dall. 349; 3 Binn. 121. As to the distinction between executors and trustees, see Mr. Coxe's note to Fellowes v. Mitchell, 1 P. Wins. 241; 1 Eden, 357, and the cases there collected.—3. Tenant for life may pay interest on encumbrances on the estate. 4 Ves. 33; 1 Vern. 404, n. by Raithby. In Pennsylvania the heir at law is not bound to pay interest on a mortgage given by his ancestor. 4. In Massachusetts a bank is liable independently of the statute of 1809, c. 37, to pay interest on their bills, if not paid when presented for payment. 8 Mass. 445.—5. Revenue officers must pay interest to the United States from the time of receiving the money. 6 Binney's Rep. 266.

§ 2. Who are entitled to receive interest. 1. The lender upon an express or implied contract.—2. An executor was not allowed interest in a case where money due to his testatrix was out at interest, and before money came to his hands, he advanced his own in payment of debts of the testatrix. Vin. Ab. tit. Interest, C. pi. 13. In Massachusetts a trustee of property placed in his hands for security, who was obliged to advance money to protect it, was allowed interest at the compound rate. 16 Mass. 228.

§ 3. On what claims allowed. First, on express contracts; secondly, on implied contracts; and, thirdly, on legacies.

First, on express contracts. 1. When the debtor expressly undertakes to pay interest, he or his personal representatives having assets, are bound to pay it. But if a party has accepted the principal, it has been determined that he cannot recover interest in a separate action. 1 Esp. N. P. C. 110; 3 Johns. 220.

See 1 Campb. 50; 1 Dall. 315; Stark. Ev. pt. iv. 787.

Secondly. On implied contracts. I. On money lent, or laid out for another's use. Bunb. 119; 2 Bl. Rep. 761; S. C. 3 Wils. 205; 2 Burr. 1077; 5 Bro. Pari. Ca. 71;

1 Ves. jr. 63; 1 Dall. 349; 1 Binn. 488; 2 Call, 102; 2 Hen. & Munf. 381; 1 Hayw. 4; 3 Caines's Rep. 226, 234, 238, 245; see 3 Johns. Cas. 303; 9 Johns. 71; 3 Caines's 'Rep. 266; 1 Conn. Rep. 32; 7 Mass. 14; 1 Dall. 349; 6 Binn. R. 163; Stark. Ev. pt. iv. 789, n. (y), and (z); 11 Mass. 504.

2. For goods sold and delivered, after the customary or stipulated term of credit has expired. Doug. 376; 2 B. & P. 337; 4 Dall. 289;

2 Dall. 193; 6 Binn. 162; 1 DalL 265, 349.

3. On bills and notes. If payable at a future Jay certain, after due; if payable on demand, after demand made. Bunb. 119; 6 Mod. 138; 1 Str. 649; 2 Ld. Raym. 733 ; 2 Burr. 1081; 5 Ves. jr. 133; 15 Serg. & R. 264. Where the terms of a promissory note are, that it shall be payable by instalments, and on the failure of any instalment, the whole is to become due, interest on the whole becomes payable from the first default. 4 Esp. 147. Where by the terms of a bond, or a promissory note, interest is to be paid annually, and the principal at a distant day, the interest may be recovered before the principal is due. 1 Binn. 165; 2 Mass. 568; 3 Mass. 221.

4. On an account stated, or other liquidated sum, whenever the debtor knows precisely what he is to pay, and when he is to pay it. 2 Black. Rep. 761 ; S. C. 3 Wils. 205; 2 Ves. 365; 8 Bro. Pari. C. 561 ; 2 Burr. 1085; 5 Esp. N. P. C. 114 ; 2 Com. Contr. 207; Treat. Eq. lib. 5, c. 1, s. 4; 2 Fonb. 438; 1 Hayw. 173; 2 Cox, 219; 1 V. & B. 345;

[ocr errors]
« SebelumnyaLanjutkan »