Remedies to recover Debts.

an affidavit of the grounds upon which he asks a sequestration, but also execute his bond to the defendant, conditioned to pay all damages which may result from the order. (a)

Courts. Under the constitution of Louisiana, the judicial power is vested in a Supreme Court, District Courts and Justices of the Peace. The first court has only appellate jurisdiction. There is no such distinction as that between legal and equitable jurisdiction.

Proceedings are according to the forms of the civil law; the essential features of the trial by jury being preserved. Any person who is interested on the subject matter of any pending controversy, may by intervention become a party to the proceeding.

(a) C. of P. 269 to 283; B. & C. D. 774.

6. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

7. REMEDIES TO COLLECT DEBTS.

ment.

1. Choses in Action.

The assignee of any negotiable instrument may maintain an action in his own name, allowing all reasonable discounts against himself, or the original owner, according to the date of the assignThe assignee of a bond or other written instrument being the assignee of another assignee, may also maintain an action in his own name: but to hold the assignor as security, he must use due diligence to collect the same. The assignor or indorser may be sued, without previously or concurrently suing the maker or obligor, when he either resides out of the state, or in such part of it that the ordinary process of law cannot be served upon him, or where he is notoriously insolvent. (a)

In other cases, indorsers, guarantors, or securities, must be sued simultaneously with the principal. (b)

It is not necessary to protest bills of exchange, &c., for nonacceptance or non-payment; or to give notice of dishonor to the drawer, indorser, or assignor; provided in all cases due diligence is used to collect the same. (c)

Due diligence consists in instituting suit against the drawer or maker of the instrument, before the first term of the District

(a) Dallam's Digest of the Laws of Texas, 28.

(c) D. D. 35.

(b) Acts of 1846, 361.

Interest.-Frauds.-Effect of Marriage upon the Rights of Property, etc.

Court, after the right of action accrued, or show good cause for not so doing; and institute suit before the second term of such

court.

2. Interest.

The distinction between legal and conventional interest is recognized. The former is eight per cent., at which rate all judgments bear interest, rendered upon contracts in which no more was reserved. The latter is twelve per cent. No interest can be recovered upon contracts, in which more than twelve per cent. was reserved, but only the principal. (a)

3. Frauds.

The most important provisions of the English statutes against fraudulent conveyances, and to prevent frauds and perjuries, have been adopted in Texas. The clause of the Texan statute requires the "promise or agreement, or some memorandum thereof," to be in writing, &c. (b)

4. Effect of Marriage upon Rights of Property.

The constitution of Texas provides that the real and personal estate owned by a woman at the time of her marriage, or acquired afterwards by gift, devise, or descent, shall be and remain her separate property.

Before this provision, the statutes of Texas had followed the civil and not the common law, in relation to marital rights.

5. Limitation of Actions.

All actions of trespass for injury to property, all actions of trover and conversion, all actions for taking away the goods and chattels of another, all actions upon open accounts, other than such as concern the trade of merchandise between merchant and merchant, their factors and servants, must be commenced within (b) Ib. 60.

(a) D. D. 105.

Effect of Death upon the Rights of Creditors.

two years; all actions of debt, grounded upon any contract in writing, shall be commenced and sued in four years next after the cause of action accrues.

All actions or suits founded upon any account for goods, wares, or merchandise, not sold and delivered, or for articles charged in any store account, shall be commenced and sued within two years after the cause of such action, except where the debtor or creditor dies, or the debtor removes before the expiration of two years; in which case the further term of one year is allowed, for the commencement of the action, from such death or removal. In suits for recovery of debts upon open account, against executors and administrators, the court shall cause to be expunged from such account every item which shall appear to be due two years before the death of the testator or intestate. Judgments in any court of record, when execution has not issued within twelve months from its rendition, may be revived by scire facias, or an action of debt, brought thereon within ten years after date of the judgment, and not after: or where execution hath issued and no return is made thereon, the party in whose favor it was issued may move against the sheriff or other officer, or their securities, for not returning the same within five years from the day when it was returnable.

The limitations do not begin to run against infants, married women, persons imprisoned or non compos mentis, until the removal of their respective disabilities. No acknowledgment will take any claim out of the operation of the statute of limitations, unless made in writing by the party to be charged therewith. No action upon a contract, barred by the limitation of the country where it was made, can be sustained in Texas. (a)

6. Effect of Death upon the Rights of Creditors.

There is in every county in the state, a Court of Probate, under whose supervision the estates of deceased persons are administered. It is the duty of executors and administrators, after qualification, to give notice to all creditors of the estate, by six weeks' successive publication in some newspaper of the county,

(a) D. D. 159, 160, 161.

Effect of Death upon the Rights of Creditors.

to present their claims for acknowledgment within twelve months. Before any claim for money, or personal property, or land can be acknowledged, it must be verified by the affidavit of the owner before a notary public, or the judge of probate; and if accepted by the executor it must then be presented to the probate judge, for his approval or rejection. No action can be brought upon any claim before its presentation for acknowledgment; but if a claim be rejected by the executor or administrator, or if accepted by him and disapproved by the judge, the owner of the claim may institute suit thereon before a justice of the peace or the District Court of the county; but a judgment thereon will give no claim to priority. No sale, except of perishable property, will be ordered, for the payment of debts, before the fourth regular term of the court after letters have been granted; the court is held once in every two months. Land and negroes may be directed to be sold for the payment of debts, where other personal property is not sufficient, upon petition by the executor or administrator and due notice to all persons interested. In the administration of assets, the following order is to be observed in the payment of claims which have been acknowledged and approved, or have been established by judgment: first, funeral expenses; second, debts due to the late republic of Texas; third, debts due to the government of the United States; fourth, taxes assessed for the state; fifth, recorded mortgages and liens upon specific property, then judgments of the courts of the state' of Texas, the oldest first; sixth, all other debts, debts not due being considered after a discount of the legal interest, as due. Claims in suit are to be taken into the pro rata estimate; but claims not presented within twelve months from the publication of notice, shall be postponed, in their payment, until those presented have been paid: to be barred, however, only by the general law of limitations. The preceding classes of creditors are entitled to be paid in their full or pro rata proportions at the sixth regular term (that is, within twelve months) after granting letters. (a)

The widow, besides her dower, is entitled to have set aside for her use and that of her family, property of the same amount and the same kind as is exempt from sale under a fieri facias.

(a) Acts of 1846, 308 to 318.