Volume 1 — Robinson's Louisiana Reports

This was an appeal by the defendants from a judgment in favor of the plaintiffs. The action was brought upon three bills of exchange drawn by one Pierre 0. Kane, at Lenox, in Massachusetts, payable to the order of his wife, Mrs. Edith Kane, upon and accepted by the defendant. The bills were subsequently indorsed by Mr. Kane, and negotiated, and were afterwards discounted by the plaintiffs.

<p>Appeal from the Court of Probates for the parish of Rapides, Johnston, J.</p>

<p>Appeal from the Court of Probates for the parish of Ouachita, Lamy, J.</p>

<p>Where the will does not give the seizin of the property to the executor, and he is not shown to have had possession of that which is sued for, he will not be responsible, unless he has neglected to take possession of the estate when entitled to do so 5 and in the last case, the heirs have only the right of demanding an account of his executorship? and the delivery of any property in his possession, or any balance due; and this account can only be demanded in the court of probates.</p>

<p>Appeal from the District Court of Ouachita, Wilson, J.</p>

<p>A compromise t>y a tutrix will not be binding on tlie minor, unless subsequently ratified by tbe latter.</p>

<p>Appeal from the District Court for Ouachita, Wilson, J.</p>

<p>A court of probate of another parish than that in •which a succession is opened, cannot order the payment of a debt due by the succession, even when such debt is pleaded in reconvention to an action by the administrator. The court of probates of the parish in which it was opened, is alone competent to order the payment of the debts.</p> <p>A letter of one of the parties cannot be used in evidence only to prove a particular fact, and the rest of its contents, though relating to the same subject, be excluded; the statements must be taken all together.</p>

<p>1. Insurers of persons having a special property in goods, for account of whnn it may concern, who after a loss and abandonment intervene and recover a part of the goods as matter of right and receive the proceeds without knowing the owner, in an action against them by such owner, for money had and received, are not liable for interest on the claim against them, until they have notice of his claim.</p> <p>2. The right to interest in such a case is a question of law, not of fact. It is only in that class of cases, where by law, interest may be recovered against a defendant as damages, that he has a right to have the jury pass upon the question of liability therefor.</p> <p>3. In such an action the necessary expenses of the defendants, paid in recovering and selling the goods insured, are to be allowed to the defendants to be deducted from the proceeds.</p>

<p>Appeal from tbe District Court for Ouachita, Wilson, J.</p> <p>This ivas an action on'a promissory note A judgment hy default was confirmed against the defendant, Caldwell; the other defendants separated in their answers. Brigham answered that the plaintiff had not used due diligence in proceeding against the principal debtor, who had unincumbered property in the parish more than sufficient to satisfy the debt, and prayed that it might be discussed before proceeding against him. The answers of Downs contained the same allegations; and prayed for a discussion of the property of the principal debtor, and that any amount for which the securities might he liable should he divided between them.</p> <p>The execution of the note was proved; and that the principal and each of the securities were possessed of sufficient property to satisfy the debt. Judgment was given against Brigham and Downs for the amount of the note to he equally divided between them, provided that the judgment should first he executed against the principal, Caldwell. A motion for a new trial being overruled, the defendants appealed.</p>

<p>In an action against a party for the proceeds of certain Jloats, or pre-emption rights of settlers on the public lands, sold by him as agent for die plaintiff, the name of the settler, as -well as the range, township, and section of the public land, on which the settlements were made, should he stated.</p>

<p>Appeal frota tbe Court of Probates for tbe parish of Catahoula, Taliaferro, J. Tbe defendant was administrator of the estate of Thomas Bryan, deceased.</p>

<p>1. Pictures, statues and curiosities may pass under a bequest of “ household goods and household furniture," according to their connection with the owner’s residence, the frequency of access to them, and their mode of being used by himself and his family. They do so pass when employed as permanent ornaments, and displayed constantly as such in his 2-esidence. Their temporary absence therefrom, caused by a mere delay to remove them in case of a change of residence, without evidence of an intent to abandon such previous use of them, does not deprive them of their character as household goods or furniture.</p> <p>2. AVhere a testator, the owner and keeper of a public hotel, leased to a successor in business, before making his will, such hotel at a certain rent, and at a separate rent some tables, chairs, billiard tables, plated and glass ware, plate, and a time piece previously used in such hotel, and a collection of curiosities previously kept there as an attraction for guests, and also left on deposit in such hotel, to'be removed at .his pleasure, certain pictures, statues and casts,</p> <p>Sold, that under the bequest of household furniture and household goods, 1st. Tables not used for the public refectory at the hotel, mirrors, glass ware. and marble clock would pass.</p> <p>2d. That curiosities at the testator’s private residence, and pictures, statues and casts, not used as ornaments of the public bar room in the hotel, but only left there until he should remove them, would also pass.</p> <p>3d. Silver plate, not previously used in the testator’s private residence, curiosities not found there, large vessels, suitable only for a hotel, as well as billiard tables with their appurtenances, used at the hotel, did not pass.</p>

<p>Appeal from the District Court for the parish of Rapides, King, J.</p>

The defendant was sued before the District Coürt for the parish of Ouachita, King, J., for three hundred dollars, an amount received by him for the plaintiff from the treasurer of the State, as the compensation allowed by law for a negro slave belonging to plaintiff executed for a criminal offence, and for ‘ interest and costs of suit.’ No period whs mentioned from which interest was claimed.

Action before the Court of Probates for the parish of Ouachita,.

<p>Appeal from the District Court for the parish of Carroll, Ten-ney, J.</p> <p>This was an action by the plaintiff against James Phelan, as tutor of certain minors, and John D. Harding, as sheriff of the parish of Carroll, for the purpose of enjoining the latter from selling certain negroes alleged tobe the separate property of plaintiff’s wife, which had been seized by him under an execution in a suit of the said Phelan against the plaintiff. The injunction was dissolved with damages, and the plaintiff appealed.</p>

<p>Service of citation must "be accompanied with that of a copy of the petition; the latter is the only document from which the defendant can ascertain the demand with which he is required to comply.</p> <p>Service of a copy of the petition must appear of record; no other evidence than the sheriff’s return can be received to prove it. It may be waived by the appearance of the party.</p> <p>A judgment will not be reversed on an assignment of error, where such error might have been cured by evidence legally admitted.</p>

<p>A manifest evasion by a party to a suit to answer the interrogatories propounded to her, creates a violent presumption that a true and direct answer would destroy her claim, and amounts to such a neglect or refusal as will authorize the court to take them for confessed.</p> <p>On a rule against a party to show cause on a certain day, why the interrogatories propounded to her by the plaintiff, should not be answered or taken for confessed, the court may, on failure of the party to appear or answer, make the rule absolute, andorderthe interrogatories to be taken for confessed at once, and without any further delay.</p> <p>On a question whether due diligence has beeen used, the decision of the judge below will notbe interfered with, unless clearly erroneous.</p>

In this case the defendants appeal from a judgment of the District' Court for the parish of Concordia, confirming the title of the minors represented by the plaintiff, to the land in question. Pierse, J.^ presiding.

<p>This was an action against Levi Guice, Henry H. Holstein, and Michael H. Dosson, before the District Court for the parish of Ca-tahoula, King, J.</p>

<p>Appeal from the District Court for the parish of Catahoula* King, J.</p>

<p>Appeal from, the District Court for the 'parish of Claiborne, Campbell, J.</p>

The defendant, Lillard, having obtained a judgment in the District Court for the parish of Madison, before Tenney, J., against David Stanbrough, certain slaves were seized by Scott to satisfy a fieri facias issued on that suit, and directed to him as sheriff of the parish of Madison. The plaintiff prayed for an injunction against any further proceedings by the defendants, alleging the slaves to he his'property.

<p>Where a slave'dies of a disease contracted since the sale, but before any redhibitory action, the loss must be borne by the purchaser.</p> <p>Death from a congestive fever contracted since the sale, is a fortuitous event ■within the meaning of art. 2511 of the Civil Code.</p> <p>Where a slave had been sick for several days, and no physician had been called until ■ within three hours of her death, such neglect will prevent a recovery of her value, though she may have been affected with a redhibitory disease.</p> <p>A purchaser is bound to take such care of the thing sold which he intends to return, as might be expected from a prudent father of a family.</p>

<p>The article of the Civil Code providing that a will written out of the presence of the witnesses shall be presented in their presence and declared by the testator to be his, does not require a manual presentation ; it will suffice, if after the instrument has been read to him in their presence, lie declares to them that it contains his last will.</p> <p>The great difference between a nuncupative will by public act and one under private signature is, that the former must make full proof of itself, and bear on its face evidence that all the formalities necessary to give it validity have been complied with, while the latter need not mention the fulfilment of any formalities, it being sufficient if it appear when the will is admitted to probate, that they have been observed.</p> <p>When all the requisites pointed out by law for the validity of a nuncupative will by public act do not appear from the instrument itself, the will must he declared null, because no omission to mention such requisites can be supplied by testimony.</p> <p>The omission of a material circumstance in the probate of a nuncupative will under private signature, can only prevent its execution. It must clearly appear from the testimony that some of the formalities required by law in making such a will have been omitted, before it can be annulled.</p> <p>To authorize the admission to probate of a nuncupative will under private signature, executed in the presence of only five witnesses, it must appear from the will or from testimony offered to the judge of the court of probates, that they resided in the place where the will is received, or that a greater number of witnesses could not be had.</p>

Action before the District Court for the parish of Avoyelles, Boyne., J., by the tutrix of the heirs of Moses Littell against Marshall as drawer, and John L. Garrett as endorser of a promissory note. From a judgment in favor of the plaintiff, Marshall alone appealed. In this ease written arguments were submitted to the court by T. H. Lewis, for the plaintiff, and by Taylor, Swayze, and Cush-man, for the appellant.

<p>Suniving partners cannot sue alone for a partnership debt. The representatives of the deceased partner must join in the suit.</p>

<p>Appeal by the defendant from a judgment of the District Court for the parish of Ouachita, Boyce, J., in favor of the plaintiff.</p>

<p>Appeal by the defendant from a judgment of the District Court for the parishTof Caldwell, King, J., in favor of the plaintiff.</p>

<p>The answer cannot be amended after the case has been called for trial.</p> <p>It will be no defence to an action by the payee of a note, that it was taken by him for a debt due to an estate of which he had been administrator, and had, on a settlement of his accounts in the court of probates, and a subsequent partition among the heirs, been assigned to one of them, where there is no evidence that the plaintiff seeks to avail himself of the suit to the injury of the latter. The transfer being a matter of record, the defendant will be discharged by payment to the heir.</p>

<p>The period after the lapse of which no appeal will lie, is to he computed from the day when the judgment was rendered; not from that on which it was notified to the party against whom it was given.</p>

This was an action before the District Court of the parish of Ouachita, Boyce, J., by the plaintiffs, composing the commercial firm of Lambeth & Thompson, against-Caldwell as drawer, and James H. Brigham and Solomon W. Downs, as endorsers of a note.

Action before the District Court for the parish of Avoyelles, Boyce, J., by Joseph A. Dumartrait, administrator of the estate of L. Lastrapes, and Alphonse Desmare and Henderson Taylor, surviving partners, against Appleton Gay and Charles D. Brashear.

<p>Action hy A. L. Deblieux, and James Bludwortb, testamentary executor of Charles Pavie, deceased, against Charles A. Bullard and William Long, before the District Court for the parish of Natchitoches, Campbell, J.</p>

<p>Where judgment has been rendered for a sum exceeding, by however small an amount, that claimed in the petition, it must be reduced to the amount prayed for.</p>

<p>-Where the amount made under a fieri facias has been paid by the sheriff to the plaintiff in execution, before notice of the purchase of the claim to the proceeds by a third person at a forced sale, he will not be responsible to the latter.</p> <p>Notice to a sheriff by a third person, not to pay over money made under an execution to the plaintiff, will not render him liable, if given before the execution came into his hands.</p>

<p>"Where in consequence of the want of sufficient time between the day on which an appeal was allowed and that on which it was made returnable, no bond was given, or citation issued, or other steps taken to prosecute the appeal, it will not be considered such an abandonment of the right as to preclude a second appeal.</p> <p>Joining in the sale and .signing the sheriff’s deed for property sold under a fieri facias, does not amount to such an acquiescence in the judgment, or voluntary execution of it, as will deprive the party of the right to appeal. It would amount at most to thef waiver of a monition so far as he was concerned.</p> <p>The withdrawal of a juror from sickness, or other cause, produces at once a mistrial, and his place cannot be supplied but by consent.</p> <p>Where after the trial has commenced, a juror has been withdrawn, and a new one sworn by consent, either party, or the juror himself, has a right to require that the witnesses shall be examined de novo. It will not be sufficient that the evidence, which had been reduced to ■writing, he read to him.</p>

<p>Appeal from the District Court for Natchitoches, Campbell, J.</p>

This was an action before the District Court for the parish of Natchitoches, Campbell, J., against John A. De Russy, sheriff of that parish, and Paul Tulane and Joseph C. Baldwin.

<p>Appeal from the Court of Probates of the parish of Avoyelles, JBaillio, J. The defendant was curator of the estate of Pierre Le-glise, deceased.</p>

<p>Where a party residing abroad comes into our courts in the prosecution of his rights, he is in contemplation of law present like other suitors residing in the state, and is subject to the same rules and obligations; and where interrogatories are propounded to him, it is the duty of his counsel to take notice of them, and, as he is under a legal obligation to answer, and it is for his convenience that a commission issues, he must take the necessary steps to comply with the law in such a manner that his answers may be used as evidence in the ease. It is not for the party calling for the answers to take out a commission, or to incur the trouble and expense of attending to its execution.</p> <p>When interrogatories are propounded to a party to a suit not residing in the parish, reasonable time should be allowed him to answer; and if sufficient time has not been allowed, the party wishing to use the answers as evidence, must move for a continuance, or they will be considered as waived.'</p> <p>Where an absent party to whom interrogatories were addressed, appears to have honestly intended to comply with what was required of him, his adversary, who has, by a technical objection, excluded the testimony which he had himself called for, will not be allowed to avail himself of such an irregularity, to have the interrogatories taken for confessed. He should be satisfied to exclude them as evidence against himself.</p> <p>A retiring partner is not responsible for goods delivered after the dissolution of the firm, nor will he be bound by any acknowledgments in regard to them made by his former partner.</p>

<p>This was a suit before the District Court of Concordia, Tenney, J., by Thomas Mackin, Edward Dunn, and Andrew Murray, for work done on the lands of the defendant, under a contract with commissioners appointed by the police jury of the parish of Con-cordia, the cost of which was ordered by the police jury, in the exercise of the power conferred on them by law, to be paid by the defendant.</p>

This was an action by Hymen M. Hart, and Abraham C. and Barnett B. Labatt against William Long and Joseph T. Robinson. There was a judgment of non-suit; a new trial; and a judgment against the defendants, in solido, for the amount claimed. The latter appealed.

'\A.ction before the District Court of Catahoula, King, J., by Peter G. Oliver, James Woodburn, John V. Robertson, and Sarah Schilling, administratrix of John Warfield, and tutrix of his minor heirs, against James H. Stevens, sheriff of the parish of Catahoula, and Joseph H. D. Bowmar, to enjoin an execution issued on a twelve months’ bond, executed by the plaintiffs in favor of Bowmar, for certain property purchased at a sale by the sheriff under an order of seizure.

<p>A jury may be prayed for In a supplemental answer; but it will be in the discretion of tlie court to permit such answer to be filed. It will be properly rejected where the jurors summoned for the term haye been discharged, and allowing a jury would delay the trial a whole term.</p> <p>An affidavit for a continuance on the ground of the indisposition of the principal counsel, unaccompanied with any allegation that he was in possession of papers necessary on the trial, will be disregarded, where the circumstances of the case induce the belief that it was. made for delay-</p>

<p>The plaintiffs, as children of one Fanny Price, deceased, presented their petition to the Court of Probates for the parish of Rapides, Waters, J., praying to be admitted as heirs of Benjamin Grubbs, the ancestor of the defendants, and for a partition of the estate between themselves and the defendants.</p>

Thu plaintiff alleges that he leased from the defendant for five years, at an annual rent of fifteen hundred dollars, a building which had been occupied by the husband of the defendant, then deceased, as a coffee house and confectionary, and which he proposed to use for the same purpose; that he was induced to pay so high a rent in consideration of the benefit to be derived from various fixtures and utensils connected with the establishment, and offered to him by the lessor…

<p>The plaintiff filed a petition in the District Court for the parish of Natchitoches, praying that a monition might he issued, and his title he confirmed to a tract of land purchased by him at a sheriff’s sale under execution against the defendant; the homologation of the sale was opposed by the latter. The sale was confirmed, and the defendant ordered to pay the costs of his opposition, Carr, J., presiding.</p>

The defendant, Harris, having obtained a judgment against the plaintiff, in the state of Georgia, on producing an exemplification of the record, procured from the judge of the District Court for the parish of Caddo, an order of seizure and sale.

<p>Appeal from the Probate Court for the Parish of Rapides, Waters, J.</p>

Appeal by the defendant from a judgment of the District Court for the parish of Carroll, Davis, J., in favor of the plaintiff.. moved to dismiss the appeal, and cited Code of Pr., 594. Dozer v. Sargent, 4 La., 41.

<p>Appeal from the District Court for the parish of Carroll, Tenney, J.</p>

<p>One joint and several obligor cannot rescind an agreement made by both with their ■common creditor, and which operated a discharge, so as to compel his co-obligor, who does not consent to the rescission, to remain bound. The obligation once extinguished, can only be revived against those who consent to it.</p> <p>A receipt to one of two obligors in solido, pui*porting to be for his part, severs the obligation, and extinguishes it as to him who has paid.</p> <p>A party may be bound by what is contained in an act between third persons, where it is proved that he had notice of it; and, as parol testimony is necessary and admissible to prove such notice, whatever took place at the time of notice, may, by the same kind of evidence, be proved as part of the resgestse.</p>

This was an action before the District Court of Rapides, Boyce, J., by the holder against Brown, the payee, and John A. Texada, endorser of a promissory note. No citation appears to have been served on Brown. It was proved on the trial that the post office at Cotile was twelve, and that at Alexandria fifteen miles from the residence of Texada.

The plaintiff, as administratrix of Pardee Segrest, deceased, instituted a suit before the District Court for the parish of Carroll, to annul a sale made by the deceased to the defendant, on the ground of fraud.

<p>The character of the action, whether petitory or possessory, is not determined by the allegations in the petition alone, but by the prayer of the petition and the allegations.</p> <p>Where the petition alleges that plaintiff had both the property and the possession of certain slaves, and concludes with a prayer that the defendant be condemned to deliver bp the possession, the prayer makes the action a possessory one ; had the latter been for the recovery of the slaves, the action would have been a petitory one. So where the petition avers that the plaintiff owne"d, and had possessed as owner certain slaves, and prays that he may have judgment for them, the action will be a petitory one.</p>

<p>Appeal- from the Court of Probates for the parish of Ouachita, Leamy, J.</p>

Athanase Rachal, tutor of Olivier Rachal, and Melisse Anty, tutor of Sylvere Levasseur, obtained a judgment against the defendants before the District Court for the parish of Natchitoches, Campbell, J., from which the latter appealed. The opinion of the court contains an accurate statement of the facts of the case, and of the questions of law which arose on the trial. The judgment of the District Court should be affirmed.

This was an. action before the District Court of the parish of Natchitoches, Campbell, J., by the plaintiff against Petrovic and Jean Baptiste Trezzini, on,a note drawn by.Petrovic and one C. J. Hardy, and endorsed by Trezzini. A judgment by default against Petrovic was not set aside.

<p>Appeal from the District Court for the parish of Claiborne, Campbell, J.</p>

The plaintiff applied to the District Court of the parish of Ra-pides, jBoyce, J., for an injunction to stay all further proceedings by the defendant Franklin, and James' M. Wells, sheriff of that parish, under an execution in favor of Franklin, on a judgment against William B. Williamson, Eli M. Justice, and himself. The injunction was granted, and a judgment rendered as stated in the opinion of the court, from which Franklin appealed.

The judgment from which this appeal is taken, was rendered by the.

<p>The plaintiffs, as heirs of Ruth. Noble, for the use of Jones Glover, obtained, a judgment against the defendant as one of the drawers of a promissory note, for the principal sum for which it was given, with interest at five per cent from judicial demand. The case was tried before the district court of Catahoula, Boyce, J.</p>

<p>An assignment of errors may he filed at any time within ten days after the record is brought up, where the case has not in the meantime been fixed for trial; but when, by agreement, tacit or otherwise, the case has been fixed before the expiration of the ten days, such assignment must be filed in time to give the opposite counsel an opportunity of knowing what he has to contend against; and one day, at least, should be allowed for this purpose.</p> <p>The appeal will be dismissed where the certificate of the cleric shows,that the record does not contain the parol evidence adduced in the trial, and that the parol evidence was not reduced to writing, and there is no statement of facts, bill of exceptions, nor assignment of errors.</p>

contended that the judgment should he reversed. 1. There is no evidence of ten days notice to the defendant, who is a third possessor, after the expiration of thirty days demand from the debtor. Code of Pr., 69. 6 Martin, N. S. 310. 4 La., 323-4. . 2. The order of seizure and sale extends to two slaves not mentioned in the petition. 3.

from a judgment rendered ag'ainst himself and four others, jointly, by the District Court for the parish of Caddo, Campbell, J.

<p>Where one takes peaceable possession of a portion of the public domain, to which no other person has a claim, and possesses it in good faith, he will be protected to the extent of his enclosures.</p> <p>The act of 25th March, 1831, relative to injunctions, is one of great Severity, and must be rigorously construed. It applies only where judgments have been enjoined j in all other cases, the parties must be left to their action on the bond.</p>

<p>Where a vendor, between whom and the defendant no privity exists, sells to the agents of the'latter goods known lo be for the use of their principal, but looks to such agents exclusively for payment, and after the failure of the latter to pay suffers more than fifteen months to elapse before applying to the principal during which time lie had settled with his agents, the principal will not be liable ' to such vendor.</p> <p>Agents or factors of merchants residing in a foreign country are personally liable upon all contracts made by them for their employers, whether they describe themselves as agents, or not; in the contract. In such cases it is presumed that the credit is given exclusively to them, to the exoneration of their employers; but this presumption may be rebutted by proof that the credit was given to both,'or to the principal only. ,</p>

This was an action before the Court of Probates for the parish of Rapides, by the plaintiff as tutor of William and David Stokes, against Waters as surviving partner of the community formerly existing between himself and his wife, and as tutor of Thomas Waters, their only child.

This action was instituted by the heirs of Joseph Gillard, and the heirs of Mary Magdelaine La Cour, and Nicholas La Cour, against Samuel Glenn, Sarah Duncan, and James McWilliams, before the District Court of Rapides, the 19th of October, 1839. A judgment was entered, by consent, against McWilliams; and the jury having found for the defendants, Glenn and Duncan, judgment was rendered by Wilson, J., quieting them in their possession.

<p>The return of service of a summons to attend a meeting of the creditors of an insolvent who has surrendered his property, should be made by the sheriff as in the case of an ordinary citation; but where, by the neglect of the latter, no return has been made, third persons will not be allowed to suffer, but a return will be ordered to be made nunc pro tunc.</p> <p>After a stay of proceedings no judicial process can be issued at the suit of any creditor placed on the schedule of the insolvent and notified of the failure, either against such insolvent, or his bail.</p>

Action before the Parish Court of New Orleans, Maurian, J. The plaintiff prayed for the rescission of the sale of a slave, and for the repayment, with interest, of six hundred dollars, the price which he had paid the defendant, and for one hundred dollars damages. The defendant pleaded a general denial, and the want of tender.

Harriet Wooster is appellant from, a judgment of the District Court for the first District, Buchanan, J., discharging the insolvent from imprisonment on the condition of his-executing an assignment ■of the property in his schedule, to her in trust for his creditors.

<p>Appeal from the Parish Court for the parish of New Orleans, Maurian, J.</p>

<p>Plaintiff holding a mortgage for five thousand dollars on a lot of ground, prayed for an injunction to prevent defendant from selling certain improvements erected on the lot separately from the lot itself, for two hundred and ninety dollars damages,-and for general relief. Held, that his claim was for damages in addition to the relief sought by preventing the illegal sale of the improvements on the lot on which he had a mortgage, and that the limitation of the damages to a sum less than three hundred dollars, could not prevent his right to appeal. ‘</p> <p>"Workmen, or others having a privilege on improvements erected on ground on .which the vendor has a mortgage, cannot cause such improvements to be sold separately. from the ground on which they stand 5 they must be sold together, in order that the highest price may be obtained, to be divided between the parties, according to appraisement; the proceeds of the improvements to the parties having a privilege on them, and any surplus, with the price of the land, to the vendor.</p>

<p>Art. 221 of the Code of Practice which provides that a creditor may, under certain circumstances, arrest a debtor about leaving the state, when the debt is not yet due, is limited to cases in which such debtor was a resident at the time of contracting the debt, or being a non-resident, bound himself not to leave the state before giving security, or before the debt became due.</p> <p>Where a debt has been contracted with a non-resident, by a party who knew him to , be such, the former cannot be arrested before the debt becomes due, on the ground that he is about leaving the state with the intention of defrauding his creditors, where such intended departure is the only circumstance offered to justify the suspicion.</p>

. Appeal by the defendants from a judgment of the District Court of the first district, Buchanan, J. I. That there was no proof that the defendants were owners of the omnibus, or employers of the driver. II. That responsibility only attaches where the employer might have prevented the damage and did not do so. $trawbridge v, Turner, fc„ 8 La., 537. III. That an employer is never liable for a wanton and malicious act of his agent. Gail- . lardet v. Demaries, 18 La., 490.

<p>The acceptance by a creditor of an order from his debtor on a third person, the proceeds to be*applied towards the payment of his claim, when such order was not intended to operate a novation by substituting a new debtor, will not dis-" charge the original debtor.</p> <p>Where a creditor, with a view to apply the proceeds to the settlement of his debt, receives from his debtor the conditional acceptance of a third person who promises to pay on the recovery of a certain amount from a fourth: held, that the creditor having no direct action against such fourth person, has no other means of establishing his insolvency than by prosecuting the acceptor; that until such insolvency is established, his right of action against the original debtor is suspended, and that prescription will run in favor of the latter only from the period of the proof of such insolvency, and that the prescription of live years under art. 5505 of the Civil Code; will not apply to such a case.</p>

Jacque's Chareonnet is appellant from a judgment of the District Court.of the first district, Buchanan, J., ordering him to pay over certain moneys collected hy him as former sheriff of the court. The judgment was rendered on a rule to show cause, taken on Charbonnet hy Joshua Swayne, who had intervened and established his claim to the property in contest; and the former appealed. The court erred : 1.

The defendant is appellant from a judgment of the Commercial Court of New Orleans, Watts, J., in favor of the plaintiffs, commercial partners in New.Orleans, trading under the firm of Marr, Brown & Co.

<p>Appeal from the Commercial Court of New Orleans, Watts, X</p>

<p>In an action on a policy of insurance, an allegation in the petition that (he defendants were legally put in default will be sufficient, without expressly alleging a compliance in detail with the provisions of the policy, where such compliance is proved on the trial.</p> <p>A new trial should never be granted, where the ends of justice have been attained.</p> <p>The verdict of a jury will not he disturbed, where it does not appear that the judge, from whom a new trial was asked, erred in refusing it.</p>

<p>Appeal from the City Court of New Orleans, Duvigneaud, J.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>Appeal by the plaintiffs, as heirs of John F. Carmichael, from a judgm'ent of the District Court of the First District, Watts, J.</p>

<p>Appeal from tbe Commercial Court of New Orleans, Waits, J,</p> <p>contended that the award must he set aside as uncertain, and not determining all the matters embraced in the submission. 3 Pandectes dePothier, p. 436, No. 12. Ib., p. 442, Nos. 18, 20. Ib., p. 452, No. 33. Ib., p. 468, No. 47. 1 Vinnius ad Pandectas, p. 264, No. 18. 1 Rolle’s Abridgment, Arbitrament, H., 14, 27, 29, fol. 251. Ib., Q,., 1, fob 263. 3 Vi-ner’s Abridg., pp. 64, 67, 97. 2 Petersdorff’s Abridg., p. 165, Nos. 1, 3, and note. Ib., p. 171, n. Caldwell on Arbitration, 107, 115. Waite v. Barry, 12. Wendell, 380. - Thomas v. Molier, 3 Ohio Rep., 267. 2 Harrison’s Rep., 507. 1 Pike’s Rep., 206. Watson on Awards, 115.</p>

<p>This case, and that of Millaudon against Grant, were consolidated in the Commercial Court.</p>

This case was tried before the District Court of the First District, Buchanan, J. The draft, accepted by the defendants, was in these words: ‘ On the completion of our contract for building your Clinton street stores, please pay to Messrs. Pike and Harris, or order, seven hundred dollars.’

<p>Where a factor who has received instructions to pay a debt ou{: of the proceeds of property consigned to him for sale, for the purpose of preventing an attachment, advances the amount, and pays the debt before any attachment is levied, his privilege for such advance on the property consigned will be superior to that acquired by a subsequent attachment.</p>

This was an appeal from a judgment against the defendant. The defendant was sued as the maker of a promissory note made payable to the order of Kolff & Persuhn, for whose accommodation it was made. The payees, before maturity, indorsed the note in blank, and through one Stange, their attorney in fact, delivered the same to the bank (the plaintiff) as collateral security to their own note discounted by the bank for them.

<p>An accommodation endorser of a note is a mere surety for the maker $ and a privity exists between such surety and the creditor which compels the latter to preserve unimpaired all his rights against the debtor, where he intends to look to the surety for payment. This obligation is a corollary of the right of subrogation, established by law in favor of the surety who pays the debt of his principal; and if the creditor fail to comply with this .obligation, or destroy or impair the right of subrogation to his mortgages or privileges, the surety will be released.</p> <p>The vendor of slaves, sold in a lump, received from the purchaser a note for the price, endorsed by a third person as surety for its payment, and subsequently purchased from his vendee a part of the slaves: held, that the vendor’s privilege, and file surety’s right of subrogation to it, were indivisible; that the latter existed entire as to all the slaves, for the full amount of the debt; and that it could not be divided and restricted to certain slaves, for certain amounts, at the will of the original vendor ; and that by such re-purchase the endorser was discharged. Had file vendor repurchased all the slaves, his privilege would have been extinguished by confusion; and the subrogation to which the surety would be entitled on pay-, ing the price, would have become impossible.</p>

contended: I, that the affidavit of the plaintiffs should have been received to account for the erasure of defendant’s name. Civ. Code 2258. Cantrelle et al. v. Percy, 17 La. 520. 2, that the judgment, if against the’ plaintiffs, should have been one of non-suit. The testimony of Dennis, one of the makers of the note, was properly received^ The maker of a note is a competent witness, in an action against the endorser, to prove payment. Chitty on Bills, 653 — 8.

The plaintiff in these cases is appellant from a judgment of the District Court of the First District, Buchanan, J. The cases Vvere united on the trial of the rule in the court below ; and they were brought up together.

<p>This case was tried before a jury in the District Court of the First District, Buchanan, J. The plaintiff sues as the testamentary executor of Arthur Mann.</p>

<p>This case was tried before a jury in the District Court of the First District, Buchanan, J. There was a verdict and judgment against the defendant, and A. W. L. Palmer, her husband, in so-lido, for the amount of the note sued on.</p>

<p>Thep]aintiffs, as agents of the owner of certain notes, deposited them with defendants for collection; the notes were not paid at maturity, nor were they regularly protested, hut were subsequently returned to the owner. Plaintiffs, considering themselves responsible to the latter, sued defendants in their own names, alleging that the notes were deposited by them as agents of the owner: Held, that the plaintiffs not having paid the amount of the notes, and their agency having terminated, payment to the plaintiffs would not exonerate the defendants from the claim of the owner.</p>

<p>The defendant has appealed in these cases, from judgments of the Commercial Court of New Orleans, Watts, J.</p>

<p>John M‘Donougi-1, the purchaser of the property sold, under an execution against the defendant, is appellant from a judgment of the Commercial Court .of New Orleans, Watts, J., rescinding the sale. The prdperty sold is the same that was mortgaged to secure the note sued on, with others not due at the institution of the suit.</p>

<p>Action by the plaintiff before the Commercial Court of New Orleans, Watts, J., against Walsh, and Denis Murphy, curator of the succession of James Burdon, deceased.</p> <p>This case was submitted without argument.</p>

<p>Iii an action on a note, not protested at maturity, where the defendants have not been put in default before suit, and there is no evidence of any promise to pay interest, it will only be allowed from judicial demand.</p>

moved to dismiss the appeal, the defendant having taken the appeal and subscribed the bond without the authority either of her husband or of the court. Code of Pract. 105, 106. Civ. Code. 133, 1775, 1779.

<p>The plaintiffs have appealed from a judgment of the District Court of the First District, Buchanan, J., setting aside a writ of attachment; and the defendant is appellant from a judgment, maintaining a writ of arrest.</p> <p>contended that the court below erred in setting aside the attachment, citing Grainer v. Devlin, 1 La. 169; and decided correctly in sustaining the arrest. 7 Martins N. S. 525.</p>

<p>A bond for a certain sum, with a condition that it shall be void, on the delivery by the obligors of a particular note, is a contract the principal obligation of which is the payment of the sum which it acknowledges to be due, subject to a resolutive condition, to wit: the surrender of the note.</p>

Robert B. Woodworth applied to the Court of Probates for the parish of New Orleans to he appointed curator of the estate of L. Charles Manson, representing himself to he a creditor of the deceased.

The claim of the Municipality is privileged, and of a higher rank than a mortgage; it should he paid by preference, at whatever time recorded. 2. The assessment being for the repayment of money expended in the improvement of the property, by which the mortgagee and the owner have been equally benefited, the Municipality is entitled in equity to a preference. 3.

<p>Appeal from the District Court of the First District, Watts, J.</p>

Action before the Parish Court for the parish of New Orleans.

<p>Authority to an agent to settle or compromise a debt, does not empower him to hind his principal to defray the costs and incur the responsibility of collecting-notes, offered to him in settlement by the debtor.</p> <p>Defendant offered plaintiff’s agent certain notes in the settlement of a debt due to his principal, and to guarantee the payment of any portion which could not ho collected after suit, on condition that the latter would advance the expenses and assume the responsibility of their collection, and in (he mean time suspend any proceedings against him. Plaintiff refused to assume the expense and responsibility of collecting the notes, but retained them as collateral security, and sued for the original debt: Held, that so long as he retained the notes, his right of action would ho suspended.</p>

<p>The father of one of the parties, is incompetent as a witness for him.</p> <p>A third person for whom certain articles were ordered, cannot be a witness for the defendant, in an action against the agent who ordered them.</p>

<p>A witness may be admitted to prove that the date of a bond offered in evidenoS was a a clerical error, and to establish the real time of its execution.</p>

<p>The validity of a decree appointing a dative testamentary executor, cannot be inquired into collaterally.</p> <p>Where the bond given by an executor, on an appeal from a judgment rendered against him by a Court of Probate on the opposition of the heirs, purports to be executed in favor of the heirs only, but was intended in reality for the benefit of all entitled to receive any part of the assetts in his hands, and whose right to enforce payment was suspended by the appeal, it will enure to the benefit of all.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>This was an appeal from a judgment entered on the verdict of a jury.</p> <p>The complaint was for damages for wrongfully converting one hundred and fifty shares of stock in the Erie Railroad Company, and the certificate representing the same, which belonged to the plaintiff, and which he had, through J. H. Draper, his agent, pledged with the defendants as collateral security for a loan.</p> <p>The cause was tried on the 21st of October, .1862, before Justice White and a jury.</p> <p>It appeared by the evidence that on the 18th of April, 1861, Mr. John H. Draper, an employe of Mr. Simeon Draper, but in this transaction acting in behalf of the plaintiff, borrowed $2000 of the defendants ; delivered to them one hundred and fifty shares of Erie railroad stock, and executed a paper of which the following is a copy:</p> <p>“ $2000 Hew. York, April 18th, 1861.</p> <p>At one day’s notice I promise to pay to Peyton and Prank Jaudon or order two thousand dollars for value received, with interest at the rate of six per cent per annum, having deposited with them as collateral security one hundred and fifty shares Erie E. E. O. stock with authority to sell the same at the brokers’ board, or at public or private sale, or otherwise, at their option on the non-performance of this promise and without notice, P. & F.Jaudon not being obliged to return the identical certificate. J. H. Deapee.”</p> <p>The last clause of this note was in writing, the body of it being printed.</p> <p>J. H. Draper subsequently tendered the amount due upon the note, with interest, and demanded the stock, which was refused, the defendants claiming a lien for a balance of the account due by another person, (Simeon Draper.)</p> <p>Upon the plaintiff resting his case, the defendants moved to dismiss the complaint, on the ground that the evidénce of the plaintiff had failed to sustain the cause of action, which, as set forth in the complaint, was one of trover; that the concluding words of the stock note being “ P. &. P. Jaudon not being obliged to return the identical certificate;” “that they therefore were justified in using it till a demand was made,and if they failed to deliver the stock on demand, were not liable in trover, but only in an action on contract for not delivering.” This motion was denied, to which denial the defendants excepted. Ho evidence was offered by the defendants. The court charged the jury that the plaintiff was entitled to a verdict. To which charge the defendants excepted.</p>

<p>Mary Fulton Sommerville, styling herself testamentary executrix of the last will of her husband, -Maxwell Sommerville, presented her petition to the Court of Probates for the parish of New Orleans, in which she alleged that duly authenticated'copies of the last will of her husband, of the proof of its probate before the proper tribunal for the city and county of Philadelphia, and of the letters of executorship issued to her, had been presented to the court at a previous period, when the will was ordered to be filed and registered, and made executory, and a dative testamentary executor appointed, who entered upon the duties of his office, but subsequently applied for and obtained a discharge. The petition further states that there is a debt due the estate of the deceased in this state, for the recovery of which immediate steps should be taken ; and it concludes with a prayer that the petitioner may he recognized as executrix, and may be authorized to act as such in this state.</p> <p>The certificate of the register for the probate of wills and issuing of letters of administration in the city and county of Philadelphia, filed in the Court of Probates, showed: “That on the 24th day of November, 1836, at Philadelphia, before me was proved and approved the last will and testament of Maxwell Sommerville, late of Philadelphia, deceased, (a true copy whereof is annexed), having whilst he lived, and at the time of his death, divers goods, chattels, rights, and credits within the said commonwealth, by reason whereof the approbation and insinuation of the said last will and testament, and the committing the administration of all and singular the goods,, chattels, rights, and credits which were of the. said deceased, and also the auditing the accompts, calculations, and reckonings of the said administration, and absolute care of the same, to me are manifestly known to belong ; -and that administration of all and singular the goods, chattels, rights, and credits of the said deceased, any way concerning his last will and testament, was committed to Mary Fulton Sommerville, sole executrix in the said testament named, she having first been duly affirmed, well and truly to administer the goods, chattels, rights, and credits of the said deceased, and make a true and perfect inventory thereof, and exhibit the same into the register’s office at Philadelphia, on or before the 24th day of December next, and to tender a true and just accompt, calculation, and reckoning of the said administration on or before the 24th day of November, 1838, or when lawfully required, and also to diligently and faithfully regard, and well and truly comply with the provisions of the act relating to collateral inheritance.” The, original certificate was signed at Philadelphia, the 24lh of November, 1836.</p> <p>having refused to grant an order, recognizing the petitioner as executrix,</p> <p>citing 6 Martin, N. S., 622-3. 8 lb., 236. 6 La., 690. 11 lb., 673. 18 lb., 570.</p>

<p>Under the act of 28th February, 1837, the certificate of an American consul in any foreign country, is legal evidence of the attributes, official station, and authority of any civil officer in such country, under the laws thereof.</p> <p>A non-resident executor is bound, like other executors, to administer the estate under the authority of the Court of Probates, to have an inventory made, and in all other respects to proceed according to law. The will under which he acts need not be again admitted'to probate, having been once proved; the executor need not take a new oath, having been previously sworn; nor need he take out new letters testamentary; but new security will be exacted of him, tinder the act of 13th March, 1837, where creditors present themselves and require it.</p>

John S. Wilson and Bernard Peyton, merchants and partners trading- tinder the firm and style of John S. Wilson & Co. brought an action of assumpsit in the circuit court of Giles against French C. Smith, Augustus A. Chapman and Andrew Beirne, as merchants and partners trading tinder the firm and style of French C. Smith & Co. for goods, wares and merchandize alleged to have been sold by the plaintiffs to the defendants.

<p>'A will may be presented for probate by any one having the custody of it, or interested therein.</p> <p>One named as executor in a will admitted to probate in another state, and ordered to be registered and executed here, cannot, where no proof is offered of his having been qualified or recognized as executor, administer under it without further authority'.</p>

<p>A Court of Probate may order the sequestration of papers belonging- to a succession, administered under its authority, when unlawfully retained by a third person.</p>

<p>Appeal from the Parish Court for the parish of New Orleans, Maurian, J.</p> <p>No counsel- appeared for the ap-pellees.</p>

This action was instituted before the District Court of the First District, Buchanan, J., by ‘Joachim Kohn, syndic of Louis Bouligny,’ Mary Hampton, and others, against the defendants. The petition of appeal and the appeal bond .are in the name of ‘Joachim Kohn as syndic of the creditors of Louis Bouligny.’

Nugent, Turpin, and Watt, are appellants from a judgment rendered against them by the Commercial Court of New Orleans, Watts, J., as sureties of the defendant in an attachment bond. Their signature to the bond was not denied, nor was their any allegation that the judgment against the defendant had been satisfied.

The action was brought against Claudius Gignoux, Charles H. Christmas and Tileston Cushing, to recover a quarter’s rent of premises in the city of New York. Cameron, Edwards and Burritt, (Burritt being a special partner,) were the lessees of the store No. 265 Broadway; the lease being to Cameron & Edwards, the copartnership name of the firm.

Action before the Parish Court of New Orleans, by the First Municipality, against the Commissioners of the General Sinking Fund, and the Second and Third Municipalities of the city of New Orleans.

<p>Exceptions taken at the trial, and there ordered to he first heard at the general term.</p> <p>The complaint sets forth, verbatim, a charter party between the plaintiff and defendant, dated August 21, 1862, whereby the defendant chartered the steamship Philadelphia, “ for a voyage from the port of New York to New Orleans, and return to New York.” The defendant covenanted to pay to the plaintiff “ for the charter or freight of the said vessel during the voyage aforesaid,” $25,000, “upon delivery of her cargo at New York.” The charter party contains this clause, viz : “It is understood that the steamer is to carry out to New Orleans seven hundred tons measurement of assorted cargo, or more if that does not make her draw over fourteen feet of water, and to bring back six hundred hogsheads of sugar, or its equivalent, or more in case her draft of water does not exceed fourteen feet.”</p> <p>The complaint alleged that “ the measurement of said steamer was more than a thousand tons, and she was, under said charter party, loaded by the defendant until she drew full fourteen feet of waterthat she made the voyage contemplated, and returned on the 26th of September, 1862, and delivered her cargo at Hew York on that day; that on the 13th of October, 1862, the defendant paid $15,000 on account, and refused to pay the balance of the $25,000, and it prayed judgment for $25,000, with interest from September 26,1862, less the $15,000 paid on the 13th of October.</p> <p>The third and fourth allegations of the answer were as follows, viz :</p> <p>“ Third. That, thereupon, the defendant commenced to load the said vessel with an assorted cargo, but when she was loaded to the extent of 361 tons of such cargo, the plaintiff, against the demand of the defendant to be allowed to load her to the extent contemplated by the said agreement, refused to receive on board the said vessel any additional amount, and the said vessel embarked on her voyage to Hew Orleans, with that amount of cargo and no more.</p> <p>Fourth. That, when the vessel departed on her said voyage, loaded as aforesaid, she neither carried 700 tons cargo, nor did she draw fourteen feet of water.”</p> <p>The action was tried on the pleadings, and certain admissions in writing as follows, viz ;</p> <p>First. The making of the charter party, the voyage of the steamer to Hew Orleans, her return to Hew York, her tonnage, and the amount paid on account of the charter money, as stated in the complaint, and not denied .by the answer.</p> <p>Second. That the defendants were prepared to load the steamer with seven hundred tons measurement of assorted cargo, but that when she was loaded to the extent of 361.95 tons with the goods contained in schedule Ho. 1, the plaintiff refused to carry any more, on the ground that she drew full fourteen feet of water. That the vessel was loaded by the defendant, and the cargo received by the plaintiff, and that the vessel drew full fourteen feet of water. It was also proven that the balance of the charter money, with interest, amounted, at the day of trial, to $10,516.98.</p> <p>Both parties in open court admitted that there was no disputed question of fact in the case, and that the sole question is a question of law arising upon the legal construction of the clause in the charter-party in the words following:</p> <p>“ It is understood that the steamer is to carry out to New Orleans seven hundred tons measurement of assorted cargo, or more if that does not make her draw over fourteen feet of water, and to bring back six hundred hogsheads of sugar, or its equivalent, or more in case her draft of water does not exceed fourteen feet.”</p> <p>Thereupon the court directed the jury to find a verdict for the plaintiff in the sum of $10,516.08, and the jury so found ; to which ruling and direction the defendant’s counsel excepted.</p> <p>The court ordered the exceptions to be heard in the first instance at the general term, and the judgment to be meanwhile suspended.</p> <p>Of the goods contained in said schedule (No. 1.) there were 264 tierces of hams; 142 barrels of mess pork and beef; 251 firkins of butter; twenty-six tierces and twenty-three barrels of lard; 246 boxes of cheese; 300 boxes of soap; and besides these there were corn meal, beans, potatoes, onions, starch, lemons, thirty-five barrels of eggs, and 200 dozen of brooms.</p> <p>The exhibit concluded thus, viz:</p> <p>“Number of tons as per bill of lading, tons.</p> <p>do. By weight,,..................... 44</p> <p>do. By measurement,________________ 915</p> <p>do. Own cargo,_____________________ 225,30-40</p> <p>360,30-40.”</p> <p>No witness was examined by either party, and no other or further evidence than is above stated, was given or offered.</p> <p>The defendant moved on the exceptions for a new trial; and the plaintiff, for judgment on the verdict.</p>

<p>Under the general issue, the defendant may show any fact tending to prove that he is not indebted to the plaintiff, as alleged in the petition.</p> <p>In actions against officers for neglects, the redress in damages should always be proportioned to the injury really sustained. It would be unjust in such c.ases to place the plaintiff, at the expense of the defendant, in a better condition than he would have been had no such neglect occurred.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.*</p>

The bail bond in this case was joint and several, and was signed by the defendant, and Solomon High and James Mooney, as his securities. High’s name was not mentioned in the body of the bond.

<p>This was an appeal from a judgment entered on a verdict.</p> <p>The 'action was brought against Amos and Mulford Howes, James A. Suydam and James Wright, to recover from them, as alleged owners of a .ship, (Neptune’s Oar,) for certain supplies furnished to the ship on the 1st of November, and the 3d of December, 1869, and various intermediate days.</p> <p>The answer of Wright, the only one who interposed any defense, denied that he was an owner, and alleged that his only interest in the ship, at any of' the times involved in the action, was as mortgagee of one fourth part thereof. He further alleged that he had no actual possession of her, and whether he was constructively in possession as mortgagee of one-fourth, he submitted, as a doubtful question of law, to the court.</p> <p>The cause was tried on the 13th of November, 1862, before Mr. Justice Babbode and a jury.</p> <p>It appeared by the evidence, that in 1858, one Philips conveyed, by a bill of sale, one-fourth part of the ship, ■('Neptune’s Oar,) to the defendant Wright, which bill of sale was duly recorded at the collector’s office, and although absolute in terms, was in fact a mortgage.</p> <p>The remaining three-fourths of the ship were owned by the other three defendants in this action. The firm .of Howes & Co., two of the defendants, were the ship’s husbands. After-wards, and on the 19th of November, 1859, Howes & Co. as such ship’s husbands, wrote to the defendant Wright in the following terms :</p> <p>“We write to say that the ship Neptune’s Oar is chartered for a voyage from the port of New York to San Erancis.co, California, and will in due time he fitted out and sent on the same, and that you will be held liable for the expenses, bills and outfits attending such voyage. In case you desire to have the voyage performed at our expense, and for our profit, and to receive a bond for safe return, please to say so, and we will give it with pleasure; otherwise we shall consider that you acquiesce in the voyage, and intend to be responsible for your share in the expenses and losses.”</p> <p>This letter was received by Wright, and he made no reply thereto. The vessel was accordingly fitted out for the voyage, and soon after sailed under the charter party referred to. Upon the voyage to San Francisco, the ship lost money. Upon the return voyage there were profits. Soon after her arrival at New York, the defendant .Wright commenced a suit against the other part owners of the ship, claiming his one fourth of the earnings of the voyage, setting forth that although his bill of sale was intended as a mortgage, yet that as he had acquiesced in, and consented to, the terms of the letter of November 19th, and had thus become liable to pay his proportion of the outfit of the vessel, he was entitled to share in her earnings on the return voyage, as the same was a part of the contemplated voyage referred to in the letter of November 19.</p> <p>The complaint of Wright in that suit, which was sworn to by him, .alleged, after setting forth the letter above mentioned, “ That the plaintiff .did not elect to have such voyage performed at the expense or for the profit of said Howes & Co., nor to demand or receive a bond for the said safe return of said ship, but that he acquiesced in such voyage- of said vessel from New York to Ban Francisco, and her return via Callao and the Chincha Islands, with a cargo of gitano as aforesaid, as for his account and risk as to the one fourth interest corresponding with the share of said vessel so conveyed to him as aforesaid.” Arid further, stated the amount of earnings, and that Howes & Co. had not accounted to' hirri for his share thereof. These allegations, and others to the same effect from, an affidavit made by Wright in that action, were read in évidence by the plaintiff, upon the-trial of the present action.</p> <p>The plaintiff "being called as a witness in-his own behalf, was asked on-whose credit the goods were furnished.</p> <p>This question was admitted, against the objection and ex- . ception of the defendant.</p> <p>A. “I was informed at the timé that Mr.-Wright was part owner ; the other part owners were Howes & Co.</p> <p>Q. Had you any knowledge, from any source, that Wright claimed that the bill of sale w$s simply intended to be a mortgage ? : ,</p> <p>A. No, sir.”</p> <p>On cross-examination, he stated that the goods were ordered at his office; but he could not say who gave the orders ; he supposed the masters, ship-keepers or captain. The goods were delivered on board. He further stated :</p> <p>“I never saw Mr. Wright; I was informed that Mr. Wright was part owner at the time; it was shortly after the arrival of the ship here, that I was informed that Mr. Wright was part owner ; I think Howes & Go. informed me; I think that I also saw it on the register at the custom house ; I examined the books; 1 had occasion to go there to examine about the ownership of other vessels ; I examined it in the summer of 1859 ; after the ship arrived here, and before I furnished the goods. * * * I did not know Mr. Wright’s agent here.” The plaintiff having rested, the defendants’ counsel, among other things, offered in evidence an affidavit made by James A. Suydam, one of the firm of Howes & Go., in the former suit by Wright against them, in which Suydam alleges that neither Philips nor Wright ever had any possession ; and further, that on the 19th of November, .1859, deponent’s firm of Howes & Go., as owners, agents and ship’s husbands of said ship, not knowing who were the real owners of said one-fourth of said ship, which the plaintiff now claims to represent, with a view to ascertain if possible whether said Wright or said Phillips claimed to be owners of any portion of said ship, informed each of them by letter that they, said Howes & Go., had chartered said ship for a voyage from New York to San Francisco, and informing each of them that he would be held liable for the expenses attending said voyage, and that unless he should desire to have that voyage performed at the expense of deponent’s said firm, Howes & Co., and for their profit, he would be considered as acquiescing in the voyage, and intending to be responsible for his share in the expenses and losses, but deponent's said firm did not thereby say or admit that either said Phillips or said Wright, or both of them, were actually owners of any share of said ship, nor in any manner to change the actual relations of said Phillips or said Wright to said ship, or to deponent’s said firm.</p> <p>The defendants’ counsel also offered in evidence the answer of the defendants in such former suit, in which they alleged that neither Phillips nor the plaintiff ever had any possession, and had not before claimed to share the earnings, and had never paid, but always declined to pay any expenses; and that Howes & Oo. wrote the letters referred to, to both Phillips and Wright, for the purpose of ascertaining who was the owner if either claimed to be so; and that neither ever replied to the letter to him, or in any manner acquiesced in or acknowledged his liability for expenses, and they denied that either was liable to pay any of the debts of the ship.</p> <p>Both of these offers of evidence were excluded on the plaintiff ’s objection, and the defendant excepted.</p> <p>The defendant then proved by Phillips, as a witness, that Howes & Go. sent to him a letter in the same terms as that sent to Wright, and that he made no reply.</p> <p>At the close of the trial the judge ordered a verdict for the plaintiff for the full amount claimed, and judment having been entered the defendant appealed.</p>

<p>One who wishes to probe the conscience of his adversary, must bring himself strictly within the exception established by law to the rule which excludes a party from testifying in his own case.</p> <p>A party to a suit can only be examined by interrogatories annexed to the petition or answer, unless with his consent. He may object to being verbally examined on the trial.</p> <p>"Where one of the parties to a suit is called upon to be sworn and examined on the trial, without any specific interrogatories having been previously propounded to him, he must be considered as called upon as any other witness, and be allowed to testify generally. Where the other party desires to confine his examination to certain facts, he must pursue the course pointed out by law for examinations on facts and articles.</p>

<p>Plaintiff was holder of defendant’s note for the purchase of a lot, subsequent!}' sold by the latter to a third person, who hound himself to pay the note. Plaintiff did not intervene in the act of sale from the defendant, and expressly declare by signing it that he accepted the vendee as his debtor; hut he always looked to him as such, received payments from him, sued in his own name on the agreement in the contract between him and the defendant, and after obtaining-judgment, granted him delay on conditions more onerous to defendant than any he had agreed to: Held, that defendant was discharged.</p> <p>There cannot be a more formal acceptance of a delegated debtor, than by suing him on his obligation.</p>

<p>Instructions to an agent to invest tlie proceeds of a hill in a particular way, is an express and special authority to endorse the bill in the name of the principal, such as is required by art. 2966 of the Civil Code; for the investment could not be made without such endorsement, whether money were to be procured by the sale of the bill, or the bill itself were to be given in payment for the articles in which the investment was to be made.</p>

<p>Where property offered for sale under execution is mortgaged to secure the payment of notes, not yet due, with the acoruing interest, the purchaser must retain in his hands enough to pay such notes, with interest to the day of sale, not to the period of the maturity of the notes.</p>

<p>Appeal from the Parish Court of New Orleans, Maurian, J.</p>

<p>Where a note is payable at a particular place, payment must be demanded there, before a recovery can be had.</p>

<p>A steamer having been seized and advertised for sale by the Marshal of the City Court of New Orleans, under several executions issued on judgments obtained in that court and in tlie courts of the associate judges, a creditor who had obtained a judgment against the boat in the District Court of the United States, paid to the Marshal the full amount of all the executions in his hands, with the costs, in order to release it from seizure, and place it in the possession of the Marshal of the United States under his judgment, notifying the Marshal of the City Court at the time, that his claim on the boat was a privilege of a higher order than those of the judgment creditors at whose suit it was seized. On a rule by one of the latter to show cause why his claim should not be paid by privilege out of the funds in the hands of the City Marshal, the creditor who had obtained a judgment in the United States Court: having intervened, and claimed to he paid by preference over all the other creditors, held: that the boat not having been sold, and the payment to the City Marshal having been made avowedly to release it from seizure, and to enable the Marshal of the United States to take possession and sell, thus depriving the original-seizing creditors of their recourse against the boat, the payment to the City Marshal must be regarded as a satisfac'ion of the executions ¡n his hands, and the amount be distributed among the several seizing creditors in proportion to their respective judgments.</p>

Exceptions directed by the court at the trial to be heard in ' the. first-instance at .general term. This- action -.was brought by Edward Weston,- Henry T. Dortic, George- S. -Weston, and Frederic De Billier, against Amos Howes, Mulford Howes, James A. Suydam, and James Wright, to recover for repairs to, the ship Neptune’s Gar. None of the defendants but Wright interposed any defense.

Action before the District Court of Pointe Coupee, Nicholls, J., by Benjamin. P. de Lalande for himself, and as attorney in fact for the other heirs of the late Julien Poydras, against the defendant, represented by Gustave Delamare, her attorney in fact.

<p>Appeal from the District Court for Pointe Coupee, Nicholls, J.</p> <p>contended that the injunction should be dissolved on account of the insufficiency of the affidavit, the party swearing only that the allegations in the petition were true ‘ to the best of his knowledge and belief.’ He might have had no knowledge respecting the truth of the allegations. 5 La., 50, 81, 246. 13 Ib., 46. 14 Ib., 87, 274.</p>

The defendant is appellant from a judgment of the District Court of Iberville, Niclwlls, J. contended that the payment should he imputed to the. personal debt of Blanchard, as more onerous than one due by him as surety. Civ. Code, 21G2. 12 Duranton, art. 199, No. 7. 7 Toullier, art. 179.

<p>"Where a laborer hired for a certain time, is discharged by his employer before the ■ time for which he was engaged has expired, without any serious ground of complaint, he will be entitled, under art.'2720 of the Civil Code, to the whole amount of wages he might have claimed had the full term of his service arrived. This right accrues as soon as he is discharged ; and the fact that he engaged his services immediately after to another employer, for the remainder of the term, cannot affect His right to recover the full amount from his first employer. But art. 2720 speaks only of the wages due to the laborer, and should not be extended to any thing else, as to an allowance for board, lodging, &c.</p>

<p>The proprietor of the estate owing a servitude, is bound to fix the place where he wishes it to be exercised, and until he does so prescription for non-user will not run.</p> <p>A designation in the act of sale, by the purchaser of an estate subject to a servitude of way, of the place for the exercise of the right, is a sufficient delivery of the way to support a plea of prescription for non-user.</p> <p>The provision of art. 786 of the Civil Code, that the time of prescription for nonuser begins, as to interrupted servitudes, from the day when they ceased to be used, cannot be construed to prevent prescription where the servitude has never been used. If such a servitude be lost by non-user during a certain time, it will a fortiori he prescribed where it has never been used at all, for the extinguishment by nonuser is founded on the presumed abandonment of the right by the person entitled to the servitude.</p> <p>Where the prescription of non-user is opposed to the owner of the estate to whom the servitude is due, it is incumbent on him to prove that he, or some one in his name, has used the servitude, as appertaining to his estate, within the time necessary to es- . tablish such prescription.</p>

<p>The defendants are appellants from a judgment of the District Court of Poinle Coupee, Nicholls, J.</p> <p>moved to dismiss the appeal; on the ground, among others, that the bond of the appellant was not executed conformably to the order of appeal, it being for one hundred and fifty dollars only, while the order required one for five hundred and fifty. 5 Mart., N. S., 237. 2 La., 88.</p> <p>The effect of the error in the amount of the appeal bond, is to render the appeal devolutive, instead of suspensive.</p>

Abraham F. Rightor, and Elizabeth Ann, his wife, daughter of William Conway, deceased, and the cither heirs of the said Conway, are appellants from a judgment of the court below.

<p>Appeal from the District Court of Assumption, Deblieux, J. The plaintiffs sue as heirs of Maxil and Caroline Bourg.</p>

<p>Drunkenness in a laborer, hired for a certain terra, is a sufficient cause of dismissal, ■without any stipulation to that effect in the contract.</p> <p>A laborer, discharged by his employer, for good cause, before the expiration of liis term of service, is entitled to recover his wages up to the time of his discharge. Art. 2719 of the Civil Code, which provides that the laborer may leave his employer, or the employer may discharge his laborer, for good cause, before the expiration of the term of service, pronounces no forfeiture against the party giving the other just cause of complaint.</p>

<p>Appeal from the District Court of West Baton Rouge, Nicholls, J.</p>

1, That an authentic act is full proof of itself, and that no parol evidence can he admitted against or beyond what it contains. Civ.

<p>Appeal from the District Court of Lafourche Interior, 2Vi-íeholls, J.</p>

<p>Appeal from the District Court of Ascension, Nicholls, J.</p> <p>1. The contract was legally entered into hy the plaintiff to obtain compensation for a personal injury, without in any manner- obstructing the administration of public justice. Chitty on Contracts, 513, 515, 519, 524 and note. 2. The money already paid cannot he recovered back, though the contract he illegal. Ib., 498.</p>

<p>Appeal from the Court of Probates of Lafourche Interior, Knobloch, J.</p>

This action was instituted before the District Court of the First District, Buchanan, J. The plaintiff claims to he the owner of a tract of land, between the inhabited part of the city of New Orleans and the bayou St. John, having two arpens front on the south west side of the canal Carondelet, near the first half-moon, and extending between parallel, lines to Common street, on which it also fronts, one of the side lines being seventeen arpens, two toises, and two feet in…

<p>An accommodation indorsement is.not binding unless the instrument indorsed is transferred before maturity. The rule that a note transferred after due is subject to all the equities attaching to it in the hands of the person so transferring it, is not applicable to accommodation paper transferred to subserve the purpose forw hich it was made.</p>

<p>Appeal from the District Court of Iberville, Nicholls, J.</p>

<p>Appeal from the District Court of Iberville, Nicholls, J.</p>

<p>It is not necessary that the purchaser should be actually dispossessed, to constitute an eviction. It may take place where he continues to hold the property, if under a different title from that transferred to him by his vendor, as where he inherits it, or acquires it by purchase from the true owner.</p> <p>Where a tract of land purchased by defendant from the plaintiff, was seized and sold for a debt due by the latter, as curator of a minor, and defendant became the purchaser, held: that defendant continued to hold under the title of his original vendor, the sheriff’s deed purporting to transfer to him nothing more than the title of the latter, and that such purchase cannot be viewed as an actual eviction, authorizing the vendee to refuse the payment of the price, or to recover it back when paid; and that it can give him no other or greater rights than he would have had, if, to avoid being dispossessed, he had paid the debt of his ‘vendor; in which, case he would have had an action of warranty for the reimbursement of the amount paid.</p> <p>Though it may well be doubted whether, in a regular hypothecary action, the party in possession is hound to give notice of the seizure to his vendor, as demand must be made of the principal debtor thirty days before resorting to the mortgaged property in the hands of a third possessor, which may he considered as sufficient hotice, yet where the property is seized in the hands of the latter, under the decree of a court having no jurisdiction to order said seizure, ratione materia it will be his duty to resist such illegal process, or to notify his vendor.</p> <p>An answer, changing the issue, offered to be filed after the case has been fixed foil* trial, will not be received.</p>

<p>The defendant is appellant from a judgment of the District Court of Pointe Coupee, Nicholls, J., rescinding the sale of a slave. (</p>

Tammany, Jones, J. contended that a married woman who wishes to invest her separate funds in the purchase- of property, must, in order to prevent its becoming a part of the community,, declare by notarial act that she purchases for her sole account, and from what source she obtained the money given in payment. It is enough that she take the title m her own name, provided she afterwards prove that the price was paid out of her own means.

<p>Where hoth parties claim under the same person, neither can dispute his title.</p> <p>A remission, in the courtbelow, of the amount of damages allowed by the jury, will stop the party from setting up any claim for damages in the appellate court.</p> <p>A and B sue as heirs, and judgment in favor of A and against B. Defendant alone appeals, alleging in his petition that he complains only of so much of the judgment as was in favor of A. On the trial of the appeal, B intervened. field, that not having appealed, he cannot interfere without the consent of the defendant! and that so much of the judgment only as was in favor of A, is before the court.</p>

<p>The act of Congress of the 3rd of March, 18X1, providing for the final adjustment of land claims, and for the sale of the public lands in the territories of Orleans and Louisiana, revived by the act of the 11th of May, 1820, and the act of the 15.th of June, 1832, authorizing the inhabitants of the state of Louisiana to enter back lands, continued in force by that of the 24th of February, 1835, authorize the purchase of any vacant land, in the rear, not exceeding the quantity in the front tracts, leaving it to the discretion of the party to purchase any quantity he may desire within the prescribed limits. But when such party has made his election, and purchased the quantity he desired, though less than he was entitled to claim, he cannot afterwards assert his original rights, to the prejudice of innocent third persons, acting in good faith, and claiming under other laws. Nor will it suffice to allege that he acted through error, and purchased less than he was entitled to buy, in consequence of mistaking the number of acres in his front tract. It was his duty to have ascertained the number of acres it contained, and not having done so, within the time prescribed by the acts under which he purchased, his right of pre-emption was lost.</p> <p>The act of Congress of the 15th of June, 1832, is not a renewal of any previous act. It is an independent provision, in favor of those who had not had the benefit of former laws, and includes an entirely new class of cases not before provided for.</p> <p>Where an applicant for the purchase of certain public lands, under an act of Congress authorizing the sale of such lands 'when vacant, does not disclose to the Register of Public Lands or to the Receiver of Public Moneys the fact, that they were occupied at the time of his application, the validity of the sale may he inquired into, without any previous proceeding on the part of the United States to</p> <p>- annul it. The court is bound to presume that the officers of the government would not have sold the lands, had they known that they were occupied, and to declare the sale a nullity.</p>

<p>Appeal from a judgment of the District Court of Lafourche Interior, Nicholls, J.</p>

This was an appeal from a judgment dismissing the complaint with costs.

The plaintiffs are appellants from a judgment of tbe District Court of Assumption, JDeblieux, J., in.favor of the defendant, quieting him in the possession of the land in dispute.

<p>Appeal from, the Court of Probates of Lafourche Interior, Knoblock, J.</p>

1. The interest which an insolvent has in property surrendered to his creditors, is not a real right, which follows the property into the hands of a purchaser. The purchaser in good faith is safe, even in case of fraud on the part of the creditors or of the syndic. 1 Bullard and Curry’s Digest, 495, 3. The sale to the plaintiffs was under an order of court, and the purchaser is protected. Michel’s Heirs v. Michel's Curator et ah, 11 La., 149.

<p>Appeal from the District Court of East Baton Rouge, Jones, J. This case was submitted to the court by the Attorney General, without argument.</p>

<p>Appeal from the Court of Probates of East Feliciana, Saunders, J.</p>

<p>Appeal from an order sustaining a demurrer. This action was brought to charge the defendants, as trustees’ of the Empire Stone' Dressing Company, a corporation organized under the general manufacturing law of this state, with personal liability for an acceptance of such company, bearing date, April 4th, 1854, and payable sixty days from date; on the grounds :</p> <p>I. That the annual report required by the twelfth section of the general manufacturing act, was not filed by said company within twenty days from the first day of January, 1854, nor until after said draft was accepted.</p> <p>II. That the annual report of such company, filed on the twentieth day of January, 1853, was untrue, and contained material false .representations. ■</p> <p>III. That during the year 1853, the trustees of such company declared and paid, dividends tending to render the company insolvent.</p> <p>The defendants answered, denying most of the allegations in the complaint, and set up affirmative defenses in the following words : “ Ninth. And these defendants further answering, aver that this action is upon a statute for a penalty where the action is given to the party aggrieved, and that the same was not commenced within fhree, years after the cause of action alleged in the complaint accrued.</p> <p>Tenth. And for a further and separate defense to said action, these defendants say that at the time of the maturity of said bill of exchange, and for a. long time afterwards, the Empire Stone. Dressing Company was solvent and able to pay all its debts; that its stockholders were severally and individually liable, to an amount equal to the amount of stock held by them respectively, for all the debts of said company, by reason of the non-payment of the capital stock fixed and limited by said company in compliance with the provisions of the act under which it was incorporated. That many of said stockholders held stock in said company to an amount greater than the plaintiff’s claim, and were at the time of the maturity of said bill, and ever since have been, and still continue to be, entirely solvent and responsible That the said bill matured on or about the 6th day of June, 1854, but that the plaintiff neglected to institute suit thereon for the collection thereof!, against said company, until on or about the 19th day of March, 1857, more than two years after the said alleged indebtedness of said company to said plaintiff had become due, and that by such neglect the said plaintiffs released, exonerated, and forever discharged the stockholders of said company from all personal liability for the payment of said debt. That no claim or demand was ever made by the plaintiffs on these defendants, nor was any notice of any claim or demand, whether against said company or these defendants, ever given to these defendants ; nor had these defendants any opportunity of being subrogated to the rights and remedies of the plaintiff against said company while solvent, nor against said stockholders before they were, so as aforesaid, released and discharged from their said liability.”</p> <p>To these defenses the plaintiff demurred. Before Mr. Justice Moncbiee, at special term, the demurrer was sustained, and the defendants appealed to the general term.</p>

<p>AepEal from the Court of Probates of West Feliciana, Davi-son, J.</p>

, presiding. This case was submitted to the court, on the points filed by T. J. Cooley, and Janin, for Zenon Porche and Augustin Le Blanc, the appellants, and by Turner, for the plaintiffs.

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>This case was submitted on the points filed, by Soule, for the appellant, and V. Burthe, for the appellees.</p>

<p>■ Appeal from the City Court of New Orleans, Cooley, J.</p>

<p>Appeas from the Court of Probates of New Orleans, Bermu dez, J.</p>

<p>Appeal from the Court of Probates of St. Helena, S. Leonard, J.</p>

<p>An action against the estate of a deceased administrator, to recover a balance due to ihe estate which he administered, must be brought in the Probate Court under whose authority tbe estate of such administrator is being settled, and not in the Court of Probates of the parish in which the first succession was opened; the former court alone being empowered to ascertain and order, contradictorily with the other creditors of the estate of such administrator, the payment of any claims against it.</p> <p>A judgment of the latter court, would not conclude the estate of such administrator, nor his other creditors; nor could any balance it might find to be due by his estate, be paid without an order of the former court. During his life, theadministrator was «amenable to the latter, and might have been, compelled to render an account of his H administration s .hut after his death, any balance, due by him to tbe estate he administered, became a debt due from his estate, and its payment could ouly be ordered by the Probate Court in which his succession was opened.</p> <p>An attorney’s fee, for services in making out the accounts, and attending to the de-fence of a suit against the succession of a deceased administrator, instituted before the court in which such succession was opened, for a balance due to the estate which he administered, cannot he charged to the latter estate. It is only when an account is regularly rendered by the representative of an estate, in the court under whose authority it is administered, that the expense attending it, is chargeable to the estate.</p> <p>The payment of interest at ten per cent a year, under the act of the 18th of March, 1837, requiring executors, administrators, &c., to render full accounts of their administration at least once in every twelve months, under the penalty of dismissal from office, and of paying interest at that rate, on all sums for which they may he responsible, from the expiration of the twelve months, is a part of the penalty, and necessarily coupled with the removal from office, and one cannot be imposed without the other. The penalty prescribed by this act, can only be inflicted in cases ex*-presslv nrovided for.</p>

<p>Ho order of seizure and sale can be issued against a party, on an act purporting to be signed by an attorney in fact, where no power of attorney was exhibited, nor any authentic evidence of the subsequent ratification of the act was produced, at the time of applying for such order. An order illegally granted under such circumstances, will be rescinded, though on the trial of a motion to dissolve an injunction obtained against such order, facts should be established, by oral evidence, amounting to a ratification by the principal of the act of the attorney.</p> <p>The tutrix of the minor heirs, cannot administer a succession by virtue of her office as tutrix; she must be appointed administratrix, and give-the security required by law. Payment to her of a debt due to the succession, would not protect the party making it, against the claim of the heirs of age, nor of the administrator, should one be afterwards appointed.</p>

<p>A statement by the witnesses, in the depositions offered in evidence, tliat they have been released from all responsibility by the party in whose favor their testimony is produced, is itself an effectual idease, and renders tl\e introduction of the original release unnecessary.</p> <p>Art. 2959 of the Civil Code applies to common carriers; and so does art. 2938, under certain modifications.</p>

<p>In An action for the rescission of the sale of a slave, on account of a redhibitory disease, existing at the time of the sale, and of which he subsequently died, there will be judgment for the defendant, where it is proved that such slave had not received from the plaintiff the attention and care which his situation required.</p>

<p>To entitle the vendor, under art. 2591 of the Civil Code, to consider as null an adjudication of property offered for sale for endorsed notes, the purchaser must be put in default by being required to name his endorser.</p> <p>Parol evidence is admissible to prove what occurred at the time of a judicial sale, _ Qr subsequently, in relation to a compliance with the terms of the sale.</p> <p>Extracts from the inventory of an estate, or from the procls-verbal of the sales, when duly certified, are admissible in evidence, without producing copies of the whole of the originals.</p>

<p>Appeal from the Court of Probates of East Feliciana, Saunders, J.</p>

<p>An unauthorized admission, made by an attorney in fact, will not bind his principal.</p>

<p>Appeal from the District Court of East Baton Rouge, Johnson, J.</p>

This case was submitted without argument, on the points filed by Dalton, for the plaintiff, and Sterling, and Marks, for the appellant.

The plaintiff has appealed from a judgment of the District Court of East Baton Rouge, Johnson, J., in favor of Esther Minville, one of the defendants, and the lessor of Berge, quieting her in the possession of the property in controversy.

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

<p>Exceptions taken on the trial of the cause, and directed by the court to he heard at the general term in the first instance. ■' This action was brought against the defendants, Benkard and Hutton, to recover damages sustained by the plaintiff, Heffernan, by injuries to himself, his wife and property, by the fall of a wall of a building, when in process of construction upon the premises'of.the defendants. The complaint alleged that the fall of the wall was by the carelessness and negligence of the defendants, their servants and workmen. The defendants, in their answer, admitted that they were owners of the building, but averred that the premises were, at the time of the accident, in the possession, of four other parties, as contractors for doing the marble, mason, carpenter and iron work, respectively, and that, during the process of such construction, the defendants had no control of the work, and no right to interfere therewith. They also alleged that all usual and proper cafe was taken in the construction of the wall, and that its fall was occasioned by an extraordinary tempest.</p> <p>The cause‘was tried on the 28th of May, 1863, before Mr. Justice Barbour and a jury.</p> <p>At the close of the evidence, the defendants’ counsel moved to dismiss the complaint, which was granted.</p> <p>The court directed the plaintiff’s exceptions to be heard in the first instance at general term.</p>

The plaintiffs claim a balance due, under a written contract, for work done in ‘ filling up nineteen door openings in the first tier of boxes in the building known as the St, Charles Theatre, for which the defendant bound himself to furnish the necessary materials, and to pay the sum of one thousand dollars.’

<p>The proceeding under the 18th section of the act of the 20th of March, 1839, authorizing a plaintiff to propound interrogatories to third persons touching any property in their possession belonging to the defendant,-or any debt which they may owe to the latter, was intended to enable ihe plaintiff to get at property belonging to the defendant, in the possession of third persons; but it cannot be used as a substitute for a direct revocatory action, the object of which is to test the validity of titles to property in the possession of such third persons. The latter cannot be deprived, by such a proceeding, of any advantage, or means of defence, they would have in a direct action against them.</p> <p>Art. 1988, declaring that a creditor cannot sue to annul a contract made before the time when his debt accrued, applies to contracts apparently complete and regularly carried into effect by the debtor, and does not extend to cases where the latter has never been out of possession of the property pretended to have been sold, and where third persons have treated with him on the faith of his being the owner of the property so found in his possession.</p> <p>Facts, appearing from interrogatories which a party had no right to propound, will not be noticed.</p>

<p>The defendants are appellants from a judgment of the District Court of the First District, Buchanan, J., in favor of the plaintiffs.</p>

<p>The contract of insurance is, essentially, one of indemnity; and this indemnity must be adjusted on the principle of replacing* the insured, as near as may be, in the situation he was in at the commencement of the risk. The amount of insurable interest is the market value of the anieles at the lime and place of the commencement of the risk; and where they have been purchased near (hat time and place, the cost to the assured is the most satisfactory, though not the only criterion of their value.</p> <p>Under a policy of insurance, which provided that if there should be any false swearing on the part of the assured, he should forfeit all claim to the policy, a failure by the latter fo sustain his affidavit, by direct evidence, to the amount claimed, will not be considered as proof of his having sworn falsely, and thereby forfeit the insurance. In open policies, it is often extremely difficult to prove the actual value of the goods lost; it suffices to show by testimony the great probability of the truth of the affidavit; and in weighing this testimony, the character of the assured, as well as the credibility of the witnesses, must be considered.</p>

<p>Appeal from the Commercial Court of New Orleans, Walts, J.</p> <p>This case was submitted without argument, by G. Strawbriclge, for the plaintiff, and Eliuyn, for the appellant.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>Appeal from the District Court of St. Helena, Jones, J.</p>

<p>Where it is not certified that the record contains all the evidence adduced on the trial, and the judgment purports to have been rendered on due proof of the plaintiffs’ demand, it will be presumed that evidence was offered to satisfy the court, though the record docs not otherwise show that any was produced.</p> <p>The three days required, by art. 312 of the Code of Practice, to elapse before a judgement by default can be made final, must be judicial days.</p> <p>Where a defendant is cited to answer within a certain number of days, he is entitled to the whole of the last day to file his answer.</p>

<p>Aureal ffom the District Court of West Feliciana, Johnson, J.</p>

The plaintiff, a money broker, having filed his petition praying to he allowed to surrender his property for the benefit of his creditors, the cession was accepted by the court, and a meeting of the creditors fixed for the 18th of April. Joseph Lallande was placed on his schedule as a creditor for $2063 58, and Connolly and Elder for $1569 63.

Charles B. Lannusse and Charles Gayarré are appellants from a judgment of the District Court of the First District, Bli-diarían, J. ; and for the syndic, argued, that a contract made by the syndic, is obligatory upon the creditors, unless they show that he exceeded his powers. Pothier, Obligations 79. Civil Code, 2990, 2991, 2995.

<p>The plaintiff is appellant from a judgment of the District Court of the First District, Buchanan, J.</p>

<p>Appeal, by the plaintiff, from a judgment of the District Court of the First District, Buchanan, J., dissolving an injunction obtained against the defendant.</p>

<p>The defendants are appellants from a judgment of the Commercial Court of New Orleans, Watts, J.</p>

<p>One who has no interest in a succession, nor in the question of who shall be appointed to adminisier it, cannot complain of the want of any of the formalities inquired by law to precede the appointment of a dative executor.</p> <p>One who opposes the appointment of a curator of a succession, must allege a better right in himself.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

<p>As a general rule the masters of steamers are authorized to purchase necessary supplies for the use of their boats, and to bind the owners to pay for them ; but they have no authority to purchase supplies or merchandize for third persons, or to bind the owners therefor.</p>

The Bank of Tennessee is appellant from a judgment of the'. Commercial Court, Watts, J. This case was submitted on the points filed, by Wharton, for the plaintiffs, and Preston, for the appellants.

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>• This case was submitted on the points filed, by Eyma, for"the plaintiff, and Greiner, for the appellant.</p>

<p>-Appeal from the Commercial Court of New Orleans, Watts, J.</p>

A full statement of the case will he found in the following- judgment, by Watts, J, from which the City Bank has appealed. This is an application for a mandamus.

Exceptions taken on the trial of the canse, and directed by the court to be heard in the first instance at general term, judgment meanwhile being suspended. The action was brought to recover two lots of land on the east side of Eleventh avenue, in the city of New York, being the first and second lots north of Twenty-fifth street.

This case came before the court on questions of law; there being at the trial no disputed facts. The defendants, by their policies of insurance, insured the plaintiff’s assignor, the sum of $2100, on 700 barrels of apples, on a voyage on the ship Ohio, from New York to Liverpool. The apples were insured as being of that value, at the rate of one and a half per cent upon such value, as the premium paid.

praying for the dismissal of the appeal, on the ground that the judgment, from which it was taken, was not final, cited Stolccs v. Stokes, 6 Mart., N. S., 350. contended that the case cited by the counsel for the appellees, was overruled hy Tra-verso et al. v. Row, 11 La., 494.

<p>The functions of an attorney appointed by a Court of Probates to represent the absent heirs of a succession, cease whenever the heirs present themselves, or send their powers of attorney to claim their respective portions of the estate.</p> <p>Where a sum of money has been left, to be expended under the directions of a particular individual, for the promotion of a specified object, he may appoint an agent to receive it, though its disbursement, for the purposes indicated by the testator, must be necessarily made by himself, or under his direction.</p>

<p>The charter of the Clinton and Port Hudson Bail Boad Company empowers the company, to transfer, for any legal purpose, notesbelonging to it.</p>

<p>Suit on a contract entered into by certain individuals, the petition setting; forth their names, and reciting that, under the firm of Isaac McCord and Company, they had undertaken to execute certain work. In articles of partnership, entered into for the purpose of executing the work, subsequently to the contract, it is provided that the name of the firm shall be McCord and Company: Held, that the variance between the name of the firm as recited in the petition, and as set forth in the articles of agreement, is immaterial.</p> <p>Where the record shows that all the persons who entered into the original contract with the defendants, are plaintiffs, it will be no objection that others, who became subsequently interested in the contract, without the privity of the defendants, are not made parties to the suit.</p> <p>Where a partnership has been dissolved by the death of one of the members, an action may be maintained by the survivors, and the legal representatives of the deceased.</p> <p>In an action by the survivors, and the curator of the succession of a deceased partner, the death of the curator pendente lite, is no cause for dismissing the suit. The action may be prosecuted by the heirs,or other legal representatives of the deceased partner.</p>

<p>Application for a writ of prohibition to the judge of the District Court of the First District, Buchanan, J.</p>

Rule to show fcause why a nuandámus should not he issued to the judge of the District Court of the First District, Buchanan, J;

<p>Charles Henry Breisgass, one of the defendants, is appellant from a judgment of the District Court of the First District, Buchanan, J., annulling a sale from Harman to Breisgass, of the contents of a shop, which the plaintiff had sold to Harman. The petitioner avers that the sale to Breisgass was fictitious, and intended to defraud him of his privilege on the goods for the balance of the price, for which Hartnan had given his notes. The notes were not due at the institution of the suit; but became so, shortly afterwards.</p> <p>The appeal bond was executed on the 19th of January, 1839, with one. Nichols as security. By an agreement of the 18th of February following, between the counsel of the plaintiff and the appellant, it was stipulated that if a particular person should be added as a further security on the appeal bond, no motion should be made to dismiss the appeal. It does not appear from any thing in the record, that the additional security was ever furnished. The record was filed in the appellate court on the 18th of February, 1839. On the 2nd of November of the same year, a rule was taken before the judge of the District Court, on the defendant, to show cause ‘ why his appeal should not be set aside, on the ground that he had not furnished security according to law, and to his agreement.’ On the trial of the rule, the judge, taking into consideration the written agreement between the parties, and the proof that both the defendants had absconded, and that their counsel had removed to Texas,’ ordered the appeal to be set aside.</p> <p>First.-Because the appellate court could n.ot take cognizance of the appeal, which had been dismissed by the District Court, unless such dismissal had been appealed from, which was not the case. To entitle a defendant to an appeal, he must give bond, with good security, residing within the jurisdiction of the court, &c. Code of Prac,, 575. The plaintiff has a right to show the insufficiency of the security, which cannot he done in the appellate court, as it involves a question of'fact, depending on the testimony of witnesses. Unless the lower court possess the power of rescinding the appeal, the plaintiff may be deprived of his clearest rights.</p> <p>Secondly. Because it was unnecessary to obtain a judgment against Harman, previously to proceeding against Breis'gass. The action is ex delicto, and both defendants are liable in solido. Mori-zart, fyc. v. Jacquinet. 2 Dallez, 1829. Jurisprud. XIX Siecle, p. 136. Where parties are liable in solido, either may he sued.</p>

A suit having been commenced against the defendant on two separate bonds, for the prison limits, the actions were consolidated, by consent, in the court below. 1. The debtor is bound, at his peril, to keep within the limits ; in case he breaks them, his surety must suffer. 1 Moreau’s Dig. p. 572, sec. 13. 8 Mart. N.,S. 108. 7 Johnson, 188. 2.

This case was submitted to the court on the points filed,by Andry, and A. M. Guyol, for the appellants, and Canon, for the defendant.

<p>Appeal from the District Court of the First District, Buchanan, J.</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p> <p>cited Weyman et al. v. Cater, &c. 13 La.'492. Denton v. The Commercial and Rail Road Bank of Vicksburg, lb. 486.</p>

This case was submitted to the court on the following points: 1. The suit was properly .brought before the court having jurisdiction of the insolvency. 2 Moreau’s Dig. p. 424, secs. 1, 12, 14, 30, 33, 34. Ib. p. 437, secs. 2, 7. Code of Pract. 130, 162, 164, 165, 997. 2.

Exceptions taken on the trial, and directed by the court to be heard in the first instance at general term. The action was brought by William Birdsall, jr. and Thomas W. Birdsall, as executors, &c. of William Birdsall, deceased, to recover the possession of two railroad bonds, which the plaintiffs alleged had been wrongfully taken from their possession, had been altered in the numbering, and had come to the possession of the defendant.

<p>Appeal from the District Court of East Feliciana, Johnson, J.</p>

Appeal by the defendant from a judgment of the District Court of the First District, Buchanan J. The certificates of the judge and cleik of the lower court stated, that the record contained all the testimony adduced on the trial, except the testimony of one witness, ‘ which was not taken down in writing.’ prayed for a confirmation of the judgment, with damages for a frivolous appeal.

<p>Every note issued by a bank, promising to pay a given sum on demand, is a distinct and separate promise.</p> <p>The penalty, provided by the twentieth section of the charter of the New Orleans Canal and Banking Company, which declares that if the company shall suspend or refuse to pay any of its notes, deposits, or other obligations in specie, that the party may recover iuterest at twelve per cent a year from, the time of such suspension or refusal, cannot be recovered without a demand and failure to pay on the part of the company ; and such interest can only he recovered from the time of the demand and failure.</p> <p>The neglect or refusal by a Bank to pay its notes in specie, is only a passive violation of its contracts; and the mere announcement of its intention not to pay notes in specie, by a resolution suspending specie payments,, cannot, consequently, be considered an active violation of its contracts.</p>

<p>The Register of the Land Ofiice and the Receiver of Public Moneys, acting as n Board of Commissioners for the adjustment of conflicting land claims, under the act of Congress of the 8th of May, 1822, have no power to revoke a certificate of confirmation once granted, nor to revise tlicir own decisions touching the location of such conflicting claims, after rights have been acquired under them»</p> <p>The act of Congress gives no appeal to the Commissioner of the General Land Ofiice from the decisions of the Board; but he may withhold a patent, -when satisfied that a certificate of confirmation has been unfairly obtained, and, perhaps, order a new survey, where the survey presented as the basis of a patent, is shown to vary from the boundaries mentioned in the original title.</p> <p>A survey of a portion of the public lands, under an orderfrom the Land Ofiice, approved by the Surveyor General, is conclusive, unless it be shown that it deviates from the order.</p> <p>A judicial avowal or admission by-an ancestor, is as binding on his heirs, as it was on himself.</p> <p>An admission made in the course of judicial proceedings, cannot be retracted to the prejudice of the adverse party.</p> <p>A copy of a survey, certified by the Register of a Land Ofiice of the United States to be a correct transcript of the original survey in his office, is admissible in evidence. The copy is properly certified by the officer having the custody of the original.</p> <p>A copy of the certificate of the Commissioners for adjusting land claims in favor of a claimant, certified by the Surveyor General, is inadmissible. It should be certified by the Register of the Land Office.</p>

This case was submitted, without argument, on the points filed by Sterrett, for the plaintiff, and Dwell, for the appellant.

<p>The verdict of a jury on a question of fact, will not be disturbed unless clearly wrong.</p>

<p>Attachment by plaintiff of goods belonging to defendant, in the hands of third persons, who were made garnishees. The latter delivered up the goods, except a part, retained to secure an amount due to them, as agents of a ship, for freight of the whole lot. A rule having been obtained by the plaintiffs on the garnishees, to show cause why they should not deliver up the goods retained, the latter suffered it to be made absolute, without objection, and on execution, surrendered the balance of the goods to the sheriff. On a subsequent rule by the owners of the ship, against the plaintiffs, defendant, and sheriff, to show cause why the freight of the whole lot of goods, should not be paid by preference out of the balance last surrendered by the garnishees, Held: that the defendant, though without interest in the question of privilege, as between the plaintiffs and the owners of the ship, is interested in defeating the claim of the latter, and may plead prescription against it 5 that no prescription could run so long as any of the property remained in the hands of the agents of the ship owners, as a pledge for the payment of the freight, such pledge being a standing acknowledgment of the debt 5 and that it commenced running only from the delivery of the goods to the sheriff, from which time the owners of the ship had fifteen days to assert their privilege for the freight, and one year to urge their claim against the debtor.</p> <p>Prescription is interrupted, wherever the debtor, or possessor acknowledges the debt, or adverse right, against which it was running.</p> <p>A ship owner may retain all the goods shipped, untill the whole freight bill is paid. Every part of the goods is liable for the whole debt. Where a part only of the goods shipped have been retained as security, it will be liable for the whole freight.</p>

<p>An applicant for the curatorship of a succession», is not bound to state in his petition to the Court of Probates, the grounds on which he claims the appointment, as the first applicant is entitled to the curatorship, unless legally opposed. In case ef opposition, he may show, in a supplemental petition, the grounds of his claim. ' ^</p>

<p>Appeal from the Commercial Court of New Orleans, Watts, J.</p>

The hail ■bond is, in its terms, a positive obligation, to pay a sum of money, on a certain condition, which condition, it is admitted, has occurred. Bu-t according to tlie principle laid down in Jayne et al, v. Cox, 8 Mart. N. S., 168, the surety, even after the occurrence of the Condition, may discharge himself by surrendering the debtor. The obligation is, therefore, one with a resolutory condition, Civ.

This was an appeal by the defendants from an order denying a motion for a new trial, and also from the judgment entered on the verdict.

Armistead and Otto have appealed, in the first of these cases, from a judgment of the Commercial Court, Waits, J., and in the second,.from a judgment of the City Court of New Orleans, Thomas J. Cooley, J.

There was no privity between the plaintiffs and Toledano. There was a partial failure of consideration. Toledano does not ask a rescission of the sale; and he cannot keep the property, and refuse to pay the price. Should the defence of the appellee be sustained, the judgment should, at most, be one of non-suit. 1. The promise of Tole-dano was conditional, and the consideration having failed, he is not bound. Civ. Code, arts. 1887, 1890, 1891.

<p>Notice of protest to an endorser, living four and a half miles from the town where the note was payable, addressed to him through the post office of that town, which was the nearest to his residence, is insufficient hy the laws of Mississippi; aliter, under the laws of this state.</p> <p>To render obligatory, a promise hy an endorser to pay a note from which he has been exonerated in consequence of want of notice of non-payment hy the maker, it must be shown that the promise was made by the former, with a full knowledge that he had been legally discharged.</p>

This case was submitted without argument, on an agreement waiving the prayer for damages, by Peyton and J. W. Smith, for the plaintiffs, C. M. Jones, for Freeland, and L. Peirce, for the other defendants.

<p>Appeal from, the District Court of West Feliciana, Johnson, J.</p>

1. That the legitimacy of the plaintiff resulted from the marriage of his mother. Civ. Code, art. 203. Code Napoleon, art. 312. 2. No one but the husband of the mother can contest his legitimacy ; the plaintiff cannot repudiate his own legitimacy. Civ. Code, arts. 210, 211. Gode Napoleon, art. 316. 2 Toullier, Nos. 832' — 838. 3 Duranton, Nos. 64 — 79. 1 GEuvres de Cochin, p. 208. 2 lb., 191, 192. Tate v. Penne, 7 Mart., N. S., 549. ,3. The amendment was properly allowed.

Exceptions taken on the trial of the cause, and directed by the court to be heard in the first instance at general term, judgment meanwhile to be suspended. This action was tried, for the second time, on the 6th and 9th of February, 1863, before Justice Monell and a jury. A decision upon a former appeal, after the first trial, is reported 8 Bosw. 345.

<p>Exceptions taken on the trial, and directed by the court to he heard in the first instance at the general term, and judgment meanwhile to he suspended.</p> <p>The defendants in this action were a corporation. The cause was tried ón the 26th of January, 1863, before Justice Bobertson and a jury. The material facts appear in the opinion of the court.</p>

This was an appeal from an order sustaining a demurrer to the plaintiff's complaint, made by Justice Baebour, on the 21st day of December, 1866.

out unless he submitted to examination. This action was brought by William S.. Woods and others against Louis E. De Eiganiere, president, &c. The demand in suit was against a joint stock company, of which the defendant was president. A summons was issued, requiring the defendant to appear and be examined, pursuant to section 391 of the Code.

By six several warrants tinder the hand and seal of William Eambert mayor of the city of Richmond, dated the 8th of November 1841, and directed to the keeper of the jail of said city, the said jailor was required to receive into his custody, and safely keep until the next court of hustings to be held for the said city, or until thence discharged by due coarse of law, six slaves, described as belonging to Simon Abrahams of said city, namely Delphy Anderson, Randol Kinney,…

This was an appeal from a judgment in favor of the plaintiff, entered on a verdict. The action was brought by David Magie against Joseph Eaylor, Richard Calrow, Jr. and Abner Osborn, to recover on a bond of indemnity alleged to have been made by them. The defense interposed by Osborn was a general denial. The cause was tried on the 28th of May, 1863, before Justice Monell and a jury. The evidence material to the question decided on the appeal is stated in the opinions.

Case adjourned from the circuit superior court for the county of Henrico and city of Richmond. William B. Dabney, late the first teller of the bank of Virginia, was indicted in the said circuit court, upon the statute of Eebruary 24, 1820 (Suppl. to Rev. Code, ch. 223, \ 2, p. 278)j for felony in embezzling and fraudulently converting to his own use 4000 dollars of the money and bank notes of the bank, placed under his care and management by virtue of his office aforesaid.

<p>It was decided in this case that causes of action on several judgments can not be united in one action, unless all the debtors in the judgments are the same, and are made defendants.</p>

It was decided in this case, that after judgment entered absolutely, a case though made and settled on notice, can not be annexed to the judgment roll, except by a special order; and without such order an appeal is to be heard on the judgment roll itself.

<p>It was decided in this, case that a person charged in execu-. tion, though allowed to go upon the limits, is a prisoner, within the statute,authorizing prisoners to apply for discharge. ’</p>

A presentment was made in the circuit superior court for the county of Henrico and city of Richmond, at October term 1840, against James Phalen, charging that he, since the 1st of January 1837, to wit, on the 1st of June 1840, at the city aforesaid, unlawfully did sell and *cause to be sold one certain lottery ticket in a certain lottery to be drawn in this commonwealth, to wit, in a lottery called Alexandria and Fauquier turnpike lottery, and then and there advertised to be…

<p>Indictment*—Building Fence across Road. — Indictment on statute of 1834-5, ch. 77, § 20, against owner and tenant of land through which a public road passes, for building a fence across a portion of the road, and continuing the fence so built across said road for three days, held sufficient on demurrer.</p> <p>Same—Same—Evidence.—On trial of such indictment, court refuses an instruction asked by defendant, that the jury must be satisfied from the evidence that the fence was built across the road: Held, the instruction was properly refused.</p> <p>Same—Same—Verdict—Judgment.—Verdict on such indictment finds defendant guilty, and assesses his amercement to five dollars; and judgment is rendered for the amercement and costs: Held, there is no error in such proceeding.</p>

<p>Indictment*—Perjury—Insolvents Swearing to Schedule.—Indictment against an insolvent debtor for perjury In swearing to a schedule which did not discover certain debts owing to him. held had on demurrer, for not averring that he well knew and remembered that the omitted debts were then justly due and owing to him.</p>

In the circuit superior court for the county of Henrico and city of Richmond, 9-t October term 1840, twenty-four indictments were found against Benjamin W. Green, for several felonies, for which he had been duly examined before the court of hustings for the city of Richmond, and, on the 15th of June 1840, remanded by that court for trial in the said circuit court. The indictments were found at the term o'f the circuit court next following the examination.

Fletcher Heath was indicted, in the circuit superior court for the county for Henrico and city of Richmond, of the wilful murder of Delia Harris. At October term 1842, a jury being impaneled for his trial found him guilty of murder in the first degree, and the court passed sentence of death upon him. In the course of the proceedings, the court gave opinions upon several points against the prisoner, to which he excepted.

<p>William Young was indicted in the circuit superior court for the county of Henrico and city of Richmond, for felony in stealing a negro woman slave named Eliza, the property of Sarah’ C. Atkinson. Before pleading to the indictment, he moved the court to quash the same; which motion being overruled, he filed a bill of exceptions, shewing as the ground of the motion, that “the prisoner had not been examined for the offence with which he is charged in the indictment, as appears by the warrant summoning the examining court, and the proceedings thereof.” He was then tried upon the indictment, and the jury having found him not guilty, the *court gave judgment that he be acquitted and discharged of the larceny aforesaid. “Whereupon” (the record proceeds) “on the motion of the attorney for the commonwealth, and it appearing to the court, by the testimony of witnesses this day examined on the trial of the said William Young, that he is guilty of a misdemeanour, it is ordered that he be remanded to jail, and continued in the custody of the jailor of this court till the next regular term to be holden for the trial of criminal causes, to answer an indictment then to be preferred against him.” To this order of the circuit court the prisoner excepted. The statement in the bill of exceptions was, that “the court ordered the prisoner to be remanded to jail to await the session of the next grand jury, then to be presented for a misdemeanour under the statute, Suppl. to Rev. Code, ch. 184, $ 1,* p. 243,—being of opinion that, upon the evidence adduced at the trial, he was liable to be presented under that statute.”</p> <p>The trial and acquittal of Young, and his recommitment to prison, took place on the 11th of November 1842. And now he presented a petition to the general court, setting forth the order of the circuit court remanding him to jail, insisting that his imprisonment under that order was illegal, and praying that a writ of habeas corpus might be awarded to bring him before the court, and that he might thereupon be discharged out of custody.</p> <p>The court awarded the habeas corpus, and at the same time, by subpoena duces tecum, caused the clerk of the circuit court to bring before them the indictment against Young, with the other original papers filed in the cause, *and the order book containing the entries of the proceedings had therein. From those papers and the order book, the foregoing state of the case has been collected. What was the testimony given against Young on his trial in the circuit court, did not in any wise appear. The depositions of the witnesses for the commonwealth upon his examination before the county court of Henrico, were to the following effect:</p> <p>R. C. Page deposed that Eliza, the slave which the prisoner is accused of taking away, is the property of mrs. Sarah C. Atkinson ; that the said slave disappeared on the thursday before she was taken up and this charge preferred, and the witness next saw her at the mayor’s office. She carried away a trunk with clothing belonging to her. The prisoner was apprehended near Fredericksb urg.</p> <p>John Moscow deposed that Young the prisoner came to his house on the 17th day of March last, about two o’clock, and asked permission for a lady to remain all night. He said he wanted to go to a public house in the neighbourhood to look for his partner, and accordingly went away. After some time he returned, and said he could not find his partner. He and the woman remained all night. The next morning he went off again, and after some time returned and said that they could not get in the mail train, and that they must return to Richmond. He and the woman left the house of the witness together on that morning, and the next time the witness saw them was in the mayor’s office.</p> <p>Archibald Pae deposed that he saw Young and the girl together near the water station on the Richmond and Fredericksburg rail road, coming towards Richmond. Afterward he saw Young lower down tne rail road, lying in a bush. The witness asked him if he was going to Richmond? He replied, no. Near Sinton’s turnout the witness saw the girl, who said that she was free, but that she had no pass or free papers. The witness *and some others then returned in pursuit of Young: they found him, and charged him with kidnapping; when Young said he had got into a pretty fix, and that he was a ruined man.</p> <p>A. S. Eewelling deposed that on the 18th day of March last he saw Young and the girl coming down the rail road. After-wards, lower down the rail road, he saw Young lying in a bush. Near Sinlon’s turnout he saw the girl, who said she was free. The witness and others then went in pursuit of Young, and he was taken into custody. Young asked witness what the law was? Witness replied, that if it could be proved he was guilty, he would be sent to the penitentiary. Young then remarked that he had got himself into a fix, that he was a ruined man ; and asked witness to let him go, saying he had a wife and child, and that he saw the girl onlj’ the day before, who represented herself to be a free indian girl.</p> <p>Daniel Garrison deposed that he is the conductor of a freight train on the rail road; that near the water station, Young the prisoner asked witness to give him passage for himself and a lady to the Junction, which the witness refused. Young and the girl came from the direction of Moscow’s house, the girl about fifteen steps behind Young.</p>

<p>On the 15th of April of 1840, the circuit superior court of Scott county ordered that Samuel E. Jones, Philip *Counts and Archibald Forgay be summoned to appear before the court on the first day of the next term, to shew cause why an information should not be filed against them for assaulting and arresting William Sons on the 9th day of April 1840, and imprisoning him from that day until the 14th of the same month. The summons was ordered on the motion of the attorney for the commonwealth, “and for reasons appearing to the court upon the trial of the writ of habeas corpus, returned to this court on yesterday, in favour of William Sons against Samuel E. Jones, a constable of this county.”</p> <p>The summons having been issued and duly served upon the defendants, and they not appearing, an, information was ordered by the court, and accordingly filed, charging that the said defendants, on the 9th of April 1840, at the county of Scott, “did make a violent assault upon William Sons, and did then and there arrest the body of the said William Sons, and .then and there imprison him the said Sons from the said 9th day of April until the 14th day of the same month.” A trial being had upon the plea of not guilty put in by the defendants, the jury returned a verdict finding all of them guilty, and assessing upon Jones and Eorgay a fine of 16 dollars 66 cents each, and upon Counts a fine of 20 dollars. Whereupon the defendants severally moved the court to set aside the verdict and to grant them a new trial, upon the ground that the verdict was not supported by the evidence; which motion the court overruled, and proceeded to enter judgment against the defendants, for the fines severally assessed as aforesaid, and the costs of the prosecution. To the opinion of the court overruling their motion for a new trial, the defendants filed a bill of exceptions; from which it appeared that the proof before the jury was as follows.</p> <p>I. The attorney for the commonwealth gave in evidence the record of the proceedings had upon the writ of habeas corpus before mentioned; which were the following:—*The writ being awarded and duly served upon Jones, he made return thereto, that he arrested Sons on the 9th of April 1840, and had since detained' him in custody, pursuant to a warrant against the said Sons for the crime of perjury, issued by Archibald Eorgay a justice of the peace for Scott county, and directed to him the said Jones as constable of the said county; which warrant he annexed to his return, as a part thereof. Whereupon, it appearing to the court that the said warrant had been illegally issued, and that Sons was illegally detained in custody thereon, it was ordered that he be discharged out of the custody of Jones, and that the said Jones pay the costs in that behalf expended.</p> <p>II. The warrant of arrest aforesaid was given in evidence by the attorney for the commonwealth. It was in the following terms:</p> <p>“Scott county, to wit: To Samuel E. Jones const. Whereas Philip Counts has this day given information upon oath to me Archibald Eorgay, a justice of the peace for the county aforesaid, that on the 8th day of February last past, in the county aforesaid, a certain William Sons, of said county, willingly and maliciously and corruptly did swear a false oath against him the said Counts; these are therefore, in the name of the commonwealth, to require you to apprehend the said Sons, and to bring him before me or some other justice of the peace of the county aforesaid, to answer the premises, and further to be dealt with according to law. Given under my hand this 7th day of April 1840.” (Signed) “A. Forgay.”</p> <p>III. The said William Sons, being introduced as a witness for the commonwealth, proved the following facts.</p> <p>The defendant Jones, who is a constable for Scott county, arrested the witness on the 9th of April 1840, by virtue of the warrant aforesaid, and held him in ^custody until the 14th of the same month, when he was discharged on a writ of habeas corpus by the order of this court. While the witness was in the custody of Jones, he was taken by said Jones to the house of Philip Counts another of the defendants, where he remained one night; after which he was taken by Jones, accompanied by Counts, before Jonathan Hale a justice of the peace for Scott county, for the purpose of qualifying, and he was there urged by Counts to qualify, to a paper or instrument of writing which Counts had prepared, in relation to a note or due bill on which he (Sons) had been warranted by Counts. The warrant had been returned for trial before the defendant Forgay, and the note or due bill on which it was founded was for 75 cents. On the trial of the warrant, Sons was sworn to testify about the matter, and did testify that he had given to Counts no note or due bill for 75 cents, but had given him one for 50 cents, and that the note had been altered from 50 to 75 cents. Witness was told by Counts, that if he would swear to the truth of the paper to which he wished him to qualify before justice Hale, he should be set at liberty. This paper was to contradict the oath which witness had taken on the trial of the warrant aforesaid. This the witness refused to do; and thereupon he was taken before the defendant Forgay, for examination or trial, as he was told; but he objected to said For-gay’s having anything more to do with his case, and accordingly Forgay did not take it up. From Forgay’s, witness was taken back to the house of defendant Counts, where he remained all night; and on monday the 13th of the month, he was brought by Jones and some other persons to the courthouse, where the circuit superior court for the county was in session, and there he remained until the next day, when he was discharged from custody. When the witness was first arrested, he requested Jones to summon several witnesses for him, which was done. Whilst he was *in custod3', he was not tied, or in any manner harshly treated, except that on monday evening, while he was in custody at the courthouse, he started home without the consent of Jones, and was overtaken by Jones, who jerked him a little, and brought him back. Jones and Counts were brothers in law. Forgay lived about 8 miles from Counts, about 5 from justice Hale, and about 4 from justice Robert Spur. This witness (who is quite a youth, and very ignorant) further proved that although Jones and Counts had him in custody from the 9th to the 14th of April, inclusive, and took him before two justices of the peace, 3ret they never explained to him what they were going to do with him, only that the3r were going to try him for perjury, and never required from him security for his appearance before any court competent to indict him for perjury, which security, if they had required, it, he would have been able to give; nor did they take him before any justice except the said Forgay, for the trial of the warrant on which he was apprehended.</p> <p>IV. Jonathan Hale, another witness for the commonwealth, proved, that at the time mentioned b3’ the witness Sons, he the said Sons was brought before this witness by the defendant Jones, in company with the defendant Counts, and Jones and Counts endeavoured to induce Sons to make oath before this witness to the truth of the paper or instrument of which Sons speaks in his testimony, and promised to release him on his doing so: but this he refused to do. That Sons, in presence of this witness, requested Jones to summon, as a witness for him, a person who lived about 6 miles distant: but that neither Jones nor Counts proposed to this witness to act in the case in which Sons was arrested.</p> <p>V. Robert Spur, another witness, proved, that he saw Sons in the custody of Jones on two court days of the term held at Scott courthouse, (as mentioned by Jones in his testimony) and that Sons and his friends frequently x'complained to the witness that Jones and Counts would not bring him to trial. This witness further proved that Counts frequently took his cases before the defendant Forgay for trial.</p> <p>VI. Jesse Roberts, another witness, proved, that he also saw Sons in the custody of Jones at Scott courthouse on monday and tuesday, and that he saw no effort made by the constable to have his case disposed of. That it was common for Counts to bring his cases before Forgay for adjudication ; and that in a case in which Counts had warranted the witness before Forgay, Forgay had taken some strange, and, as the witness thought, illegal proceedings.</p> <p>And the foregoing were all the facts proved in the cause.</p> <p>On the petition of Jones, Counts and Forgay, the general court awarded a writ of error to the judgment of the circuit court.</p>

Alexander H. Overbee was tried and convicted, in the circuit superior court of Lee county, at September term 1842, upon an indictment for forgery, and sentenced by the court to imprisonment in the penitentiary for two years, the term ascertained by the jury.