Volume 11 — Louisiana Reports

Western Dist APPEAL, FROM THE COURT OF PROBATES, FOR THE PARISH AND CITY OF ' NEW-ORLEANS. The plaintiff having obtained a judgment against the late Wm. Emerson, during his life time in the United States District Court, for the Eastern District of Louisiana, for the sum of one thousand seven hundred and eighty-eight dollars, presented the same to the curator of his estate for payment. The curator denied that there were any funds of the estate liable to said claim.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW- ' ORLEANS. This suit was instituted in January,. 1836, on three bills of exchange, amounting to upwards of four thousand dollars, drawn by the defendant in the month of January, 1829, on Henry Payson & Co., of Baltimore, and delivered to the plaintiffs.

Eastern Dist. Al’PEAD PROM THE PARISH COURT FOR TIIE PARISH AND CITY OF NEW-ORLEANS. This is an action instituted against the defendant as .drawer of a bill of exchange, to which he opposed the plea of the general issue. This draft was protested for non-payment by the drawee and acceptor, in Mobile, where it was payable.

<p>Eastern- Dist.</p> <p>ArrEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>The plaintiffs demanded of the probate judge, that a certain lot of ground in the city of New-Orleans, in the possession of the defendant, and claimed by her, should be plaCed on the inventory of the succession of J. Lavigne, deceased. They pray that the • defendant, Marié Jeaune Chalambert, be cited and made a party to the inventory. The defendant set up title to the lot of ground in question, which is stated at length, and averred that she was the true owner. She prays that the demand be dismissed.</p> <p>The probate judge went into an examination of the question of title, and determined that the defendant’s title was not good, and ordered the inventory of this property to be homologated. The defendant appealed.</p>

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ST. HELENA This is an action instituted in the Probate Court by the heirs of Thomas Kemp, deceased, requiring his executors to account for the administration of their deceased ancestor’s estate, and pay over to them such balance as may be found due.

Eastern Dist. APPEAL FROM THE COURT 03? THE FIRST JUDICIAL DISTRICT. Tbis is an action to compel the defendant to give additional security to the Union Bank on four hundred and twenty-eight shares of stock, on the ground that the property mortgaged is insufficient, because of the legal mortgage of the defendant's wife, for the restitution of her dowry, and a donation propter nuptias.

<p>Eastern- Dist.-</p> <p>ArrEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>The defendant is sued as thei endorser of a promissory note for four thousand dollars, executed by A. L. Boimare, the 15th April, 1832, payable two years after date; the answer avers that the note was given for the purchase of real estate, and a stipulation is contained in the act of sale against the negociability of the notes, until a certain general mortgage is raised.</p> <p>The defendant offered in evidence the act of sale, which contains the following clause :</p> <p>“She (vendor,) does hereby agree and covenant, to and with the present purchaser, (Boimare,) that the said second obligation of four thousand dollars shall not be negociated, nor the payment thereof exacted, until the property hereby sold, shall be fully released from all liability resulting or to result from the said general mortgage.”</p> <p>This act was annexed to the answer, which denied that the mortgage had been raised as stipulated; the reading it in evidence was objected to by the plaintiff’s counsel, and the objection sustained by the court. The opinion of the court was excepted to.</p> <p>The plaintiff had judgment and the defendant appealed.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action against Dubertrand and Legendre, as the last endorsers of a promissory note for two thousand three hundred and seventy-six dollars, drawn by J. B. Ory, to the order of, and endorsed by Michel Bergeron, as first endorser. The note was duly protested for non-payment, and notices delivered to all the endorsers; that to Bergeron was banded to his agent in the city.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JÜDICIAL DISTRICT.

Basteen Dist. ON AN APPLICATION POR A MANDAMUS TO THE JUDGE OF THE FIRST JUDICIAL DISTRICT. ■ This is an application for a mandamus.

<p>No appeal lies from an order of the judge of prohates, requiring an under tutor to institute suit against the tutor of certain minors, for his removal from office, on the ground of alleged insolvency.</p> <p>No appeal lies from an order of the judge of pro-arfundertutorto institute suit ol certain minors for his removal from of-ground of aileg-ed insolvency,</p>

Eastern Dist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT'.- This is an action against the late president of the Pontchartrain Rail Road Company to render him liable for the. sum of three thousand nine hundred and fifty-eight dollars* abstracted by the then secretary, who absconded, on the ground of failure to take a bond and security from th.e secretary, as prescribed by the rules and regulations of the board.

Eastern Dist. ATTEAL FROM THE FIRST JUDICIAL DISTRICT. This is an action to render the defendants liable for injuries done to a vessel, which one of their tow-boats was towing from the city of New-Orleans to tbe sea. The case turns mainly on mere matters of fact, which are sufficiently detailed in the opinion of the court.

Eastern Dist. APPEAL FROM THE COURT OP THE SECOND JUDICIAL DISTRICT, THE JUDGE OP THE FOURTH DISTRICT PRESIDING. This suit commenced by injunction. Joseph Foutelet became the purchaser of all the property in common or separate, existing between him and his first wife, at the probate sale of her succession, at its estimative value in the inventory. 9 Louisiana Reports, 291, 299.

Eastern Dist. APPEAL PROM THE COURT POR THE PARISH AND CITY OP NEW-ORLEANS. This suit commenced by an order of seizure and sale. The plaintiff was endorser on three several promissory notes, drawn by the defendant, dated the 26th January, 1832, and payable three years after date, amounting to two thousand two hundred and thirty-three dollars and thirty-three cents, which were given in part payment of three lots of ground in New-Orleans, and secured my mortgage thereon.

Eastern Disx. ArPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action on a policy of Insurance. The plaintiff caused insurance to be made on one hundred and seventy packages of earthenware, in-the office of the defendants, at and from New-Orleans to Pittsburgh, with the privilege of re-shipping at the intermediate ports.

Eastern JDist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. This is an action instituted by Desirée Orso Xanpi, against her mother Louise C. Orso, to recover the sum of two thousand and ninety-six dollars, which she alleges is due to her as her portion of her father’s estate. The plaintiff resides in the state of Virginia, and instituted this suit in the First District Court of Louisiana, in New-Orleans, the place of the defendant’s domicil, the 4th June, 1835.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This suit was instituted by Zenon Orso, only child and heir at law of his father Z. Orso, deceased, to recover the sum of two thousand and thirty-six dollars from the defendant, who was his father’s mother. The facts of this case are in all other respects similar to those in the case of Desirée Orso Xanpi vs. Louise C. Orso, vide ante, 57.

<p>Eastern Dist.</p> <p>APPEAL PROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW-GRLEANS.</p> <p>This is an action on a prison limit bond against the surety therein. The plaintiff having obtained a judgment for the sum of eight hundred and fifty-three dollars and sixty-seven cents, against one N. M. Riker, he was arrested on a capias ad satisfaciendum, and gave a bond for the prison limits with James H. Leverich as his surety. While in the prison bounds, he presented his schedule and petition, and applied to the District Court for the benefit of- the insolvent laws relating to voluntary surrenders. The district judge accepted the surrender, ordered a stay of proceedings, and that a meeting of the creditors of the insolvent take place before a notary.</p> <p>The plaintiffs and several other creditors attended, verified their claims, charged the insolvent with making a fraudulent surrender, and acting fraudulently towards his creditors, and denied to him the benefit of the insolvent laws.</p> <p>The proceedings were closed before the notary the 4th of June, 1835, and returned into court on the 6th of the same month. On the 15th June an opposition was filed by Yance and others, and at the foot the attorney of absent creditors joined in it on their behalf. The plaintiffs made no opposition in court, and about the begining of January, following, Riker left the prison bounds without any further proceedings or order of court. On the 5th March, 1836, the plaintiffs instituted this suit.</p> <p>The defendant pleaded a peremptory exception in discharge, -in which he averred that Riker was discharged by operation of [aw, there being no opposition by the plaintiffs.</p> <p>On this issue the case was tried before the court.</p> <p>It was admitted that Riker left the prison limits without any further order, after the return of the proceedings had before the notary, into court.</p> <p>The plaintiffs had judgment for the amount of their claim, from which the defendant appealed.</p> <p>maintained that the insolvent proceedings in the case of Riker against his creditors relied on as a discharge, are null and void, because the debtor being in actual custody, he could not invoke the law of 1817, relating to voluntary surrenders. The very first line of that act shows that it had no application to his case. It says “that every individual who shall not yet have been imprisoned for debt, &e.” shall be entitled to its benefits, &c. 2 Moreau’s Digest, 424.</p> <p>2. The insolvent could only have been discharged from confinement under the act of 1808, which is expressly made for debtors who have been imprisoned. But then, if there be a presumption of fraud, or he is charged therewith, the court cannot discharge him. In this case every creditor charged Riker with fraud before the notary. See act of 1808, section 1 and 6. 2 Moreau’s Digest, 567, 569.</p> <p>3. We deny that the court could have done more than release Riker from confinement, without the consent of, or contradictorily with his creditors. It could not discharge the obligation contracted by the surety in the prison bond, any more than it could discharge the debtor from all his debts.</p> <p>4. But in this case Riker departed from the prison limits without the consent of the plaintiffs, or order of court, consequently his bond is forfeited, and the surety liable. no discharge whatever in the record. There is</p> <p>contended that the fact of the plaintiffs having attended a meeting of the creditors of Riker before the notary, and allowed the proceedings to be returned into court without objection, or making any opposition thereto, that they were homologated, and the debtor discharged by operation of law. See act of 1817, section 17 and 18. 2 Mo-reau’s Digest, 424. Caldwell vs. Bloomfield, 2 Louisiana Reports, 503. Louisiana Code, 2172.</p> <p>2. The debtor being discharged by operation of law, from confinement and imprisonment, the defendant was discharged from his obligation in the prison limits bond sued on.</p>

Eastern Dist. appeal from the court op the third judicial district, the judge OP THE EIGHTH PRESIDING. This is'a proceeding on a bail bond by the district attorney, against Thomas Prendergast, to render him liable for the forfeiture and penalty thereof, on account of the non-appearance of the principal.

Eastern Dist. APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This case arose on the application of the plaintiff for a monition, under the act of the 10th March, 1834, to assure the sale to him of a certain house and lot in the city of New-Orleans, made by the sheriff under an execution. The defendant, who was also defendant in the execution, made opposition, and averred the sale to be a nullity, not having been made in conformity to the judgment of the court.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action instituted on a bill of exchange, drawn by the defendant, in tbe state of Mississippi, on the firm of Taylor & Vose, of the same state, and accepted by one of them. The bill was drawn in favor of one Daniel T. Grigsby, and by him endorsed to the plaintiffs. It was presented for payment, which was refused by the acceptor.

<p>It is incumbent on a party alleging lie was led into error by the false representations of the adverse party, in avoidance of the contract to prove it, and to show the error was produced by the conduct of this party.</p> <p>"Where owners assume to act for themselves as sole proprietors, they cannot afterwards say they were only part owners. Their acts will supercede any proposition which had been before made by their agent; for the agent cannot control the principal.</p> <p>It is incumbent on a party alleging he was led into error by the false representations of the adverse party, in avoidance of the contract to prove it, and to show the error was produced by the conduct of this party.</p> <p>Where own-act for them-proprietors,they cannot after-wards say they were only part actsrwiii super-cede any proposition which had been. before agent; 'ftr^uie “S™4, cannot control tne prin-cipai.</p>

Eastern Dist. APPEAL FROM THE PRESIDING JUDGE OF THE CITY COURT OF NEW-ORLEANS. This is a suit first instituted in the court of the presiding judge of the City Court of New-Orleans, against the defendant, on his promissory note for seven hundred and eighty' dollars. The plaintiff had judgment, and the defendant prayed for, and obtained an appeal directly to the Supreme Court.

Eastern Dist. APPEAL PROM THE DISTRICT COURT OP THE FIRST JUDICIAL DISTRICT. This is an action for damages against the New-Orleans Canal and Banking Company, occasioned by stopping up the drains and ditches on a piece of land occupied by the plaintiff, adjacent to the new canal constructed by said company.

Eastern Dist. APPEAL FROM THE COURT OP THE THIRD JUDICIAL DISTRICT, THE JUDGE OP THE EIGHTH PRESIDING.

<p>Eastern dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>The plaintiff arrested one Jerry Brown in an action on an account, the 8th February, 1836, and he gave bail. On the 20th February, the bail surrendered Brown and had his bail bond cancelled. The sheriff took Alfred Walley as bail in the second bond, who executed it accordingly.</p> <p>On the 25th March, 1836, the plaintiff had judgment for the amount of his claim against Brown. A writ of fieri facias issued, and was returned, no property found, the first Monday of June, 1836, and a ca. sa. was returned, stating the defendant was not to be found, the first Monday in August, 1836.</p> <p>On the 5th November, 1836, the plaintiff’s counsel took a rule on Walley, the bail, to show cause within ten days, why judgment should not be rendered against him for the amount of the debt, interest and costs, against Brown.</p> <p>The defendant filed a written answer, setting up various grounds of defence.</p> <p>On the 29th November, the sheriff assigned the bail bond to the plaintiff, and on the 3d December the cause was tried, and judgment rendered against the bail; he appealed. .</p> <p>1. The defendant and appellant assigns for error, that previously to executing the bail bond now in suit, a bail-bond had been taken for the full amount of the debt, which has never been legally cancelled. Code of Practice, 232.</p> <p>2. There was no assignment of the bail bond in this case by the sheriff to the plaintiff before taking the rule. The bail bond is the foundation of the suit, and the want of it is fatal. The plaintiff has procured the assignment since he commenced his proceedings, but not until after the bail answered. It was then too late. This is a regular suit, and the very foundation of it is wanting. 2 Louisiana Reports, 349.</p>

Eastern Disx. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an opposition by H. M. Hart & Co., to the tableau of distribution filed by the syndic of the creditors of Samuel Jacobs.

EASTERN ÜI9T. APPEAL FROM THE COURT OF THE' FIRST JUDICIAL DISTRICT. This is an action on a promissory note, dated at Clinton, (Miss.) August 12th, 1831, for two thousand seven hundred and sixty-two dollars and eighty-four cents, drawn by James D. Goff & Co., and made payable to the order of M'Manus & Page, who endorsed itin blank. The present suit was commenced by attachment against the drawers, the 6th October, 1835. The .defendants pleaded the general issue.

Eastern Dist. APPEAL PROM THE COURT OE THE EIRST JUDICIAL DISTRICT. This is an action instituted by the plaintiffs, to recover the sum of one thousand one hundred and thirty-four dollars, according to an account and statement annexed, for services and expenses rendered in attempting to remove the steamboat Abeona from a sand bar in the Mississippi river, for and on account of an agreement with the defendants.

<p>Eastern Dist.</p> <p>APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is a petitory action. The plaintiff as the administra-trix of J. B. Ferrari, sues to recover a square of ground in the rear of Faubourg, St. Mary, which the defendants purchased the 8th April, 1833, at the probate sale of the widow Nicholas Roche’s succession, but which in fact is alleged to have belonged, at the time, and now, to the succession administered by the plaintiff.</p> <p>The defendants, John Rice, Wm. M. Lambeth, P. Caillou and Omer Lauve, pleaded the general issue, and denied specially the capacity and authority of the administratrix to sue, or that she and her sisters mentioned in the petition were the legitimate children and heirs of J. B. Ferrari, deceased.</p> <p>They call their vendors, the heirs and widow of Nicholas Roche in warranty. The warrantors appeared and pleaded in substance the same pleas.</p> <p>The defendants,pray that if the sale to Ferrari by Roche should not be declared simulated and the plaintiff recover, that the purchase money still due from them, (five thousand dollars,) may be decreed to them in diminution of damages.</p> <p>The warrantors pray that if the plea of simulation of the sale from Roche to Ferrari be overruled, that it be rescinded for the non-payment of the price, and if the rescission of this sale be refused, that they have judgment against Ferrari’s estate for the price yet unpaid, with interest.</p> <p>The facts of the case show that in 1807, this square of ground was sold by John Gravier to Nicholas Roche, by notarial act for four thousand eight hundred dollars, cash.</p> <p>This sale is shown to have been simulated and made to secure advances of money made by Roche to Gravier at usurious interest, and to conceal the property of the latter.</p> <p>In January, 1810, Gravier acting on behalf of Roche, leased this same square, with a house and garden on it, to J. B. Ferrari, for one year, for three hundred and fifty dollars.</p> <p>On the 18th January, 1811, Roche sold the square to Ferrari, for six thousand six hundred and fifty dollars, of which six hundred and fifty dollars were paid in cash, the balance on a credit. On the 29th February, 1812, Ferrari paid the first instalment of one thousand five hundred dollars, for which Roche gave his receipt, specifying it to be on account of this square.</p> <p>This sale was made by Roche for Gravier’s account, and with his consent.</p> <p>In February, 1813, Ferrari applied for a respite, and put Roche on his bilan as a creditor for the balance due on account of this property, and enumerated this square among his property as purchased from Roche.</p> <p>In March, 1814, Ferrari died on this property where he had been living with his family since 1810. The widow renounced, but the daughters (including plaintiff,) accepted the succession with benefit of inventory. At the probate sale of the estate, this square was withdrawn as not bringing the amount of the appraisement.</p> <p>There is no evidence that Ferrari’s heirs ever did any thing afterwards, or that their title was ever disturbed by any proceedings against them. The widow and some of the heirs left the country in 1815.</p> <p>In June, 1815, Roche wrote Gravier, requesting him to institute proceedings against the widow Ferrari, to force her to abandon the property which he had sold her husband, and in 1816, informed Gravier that the sheriff had applied to him for the taxes due by Ferrari’s estate, on this property, and that he advised the sheriff to seize and sell it, which was declined.</p> <p>Towards the close of 1818, Roche died ; Gravier and his executrix had a settlement, in which he became debtor for the sum of six thousand one hundred and ninety-two dollars, promised to pay this balance in one year, and mortgaged four pieces of property, the title of which was then, or had been in Roche, including the square of ground in question. This settlement is explained by a memorandum made by Gravier at the time.</p> <p>Gravier failed to pay this mortgaged debt, and all the property was seized and sold, and bid in by Madame Roche. At the probate sale of her succession, the square of ground now in contest, was sold in lots, and purchased by the defendants.</p> <p>Upon the evidence of the case the jury returned a verdict for the plaintiffs, also requiring them to pay the defendants for their improvements; likewise in favor of the defendants against Roche’s heirs in warranty; the amount of the purchase money. From judgment confirming this verdict, the defendants and warrantors appealed.</p> <p>maintained that the appointment of the plaintiff as administratrix, was regular and in due form, and that her letters of administration make full proof of her authority until set aside, 2 Louisiana Reports, 250. Her right to institute this suit results from the Louisiana Code, articles 1042 and 1146. Whoever may be the heirs, the administratrix has a right to represent the estate. It was therefore unnecessary to inquire into the heirship of Ferrari’s daughters, although it is fully proved by the evidence.</p> <p>2. Ferrari was ignorant of the foundation of Gravier’s sale to -Roche. The evidence proves that Roche and Gravier kept their private transactions closely concealed, and even if he had been perfectly aware of it, it is a sufficient answer, that Roche sold to Ferrari with Gravier’s consent and for hÍ3 account.</p> <p>3. The three pleas of the defendants and warrantors, viz : simulation, rescission of the sale, and payment of the price, are contradictory. The Parish Court correctly ordered them, on the motion of the plaintiff, to elect one of these pleas, but the court erred by allowing the parties, defendants, to make separate elections, and to choose each a different plea. By this evasion they have really had the illegitimate advantage of contradictory pleas. Code of Practice, 149,152. 8 Martin, 493. 3 Marlin, N. S. 76. Thus the defendants elected the plea of simulation, while the warrantors elected the plea of rescission, and for the payment of the price. These last mentioned pleas of the warrantors admit the reality of the sale, and tend to set it aside now. In other words, they admit that at the moment of the sale to the defendants, the Ferraris had the title to this property, not Madame Roche’s heirs. The defendants are bound by the admissions of their warrantors, they only acquire the title of Roche’s heirs, and if these acknowledge that they had no title, it is not for the defendants to say that they had any.</p> <p>4. The plea of rescission is inadmissible in this case, because the sale was on a credit, and possession delivered. Goforth vs. His Creditors, 6 Martin, 520.</p> <p>A suit for the rescission of a sale must always be preceded by a suit for the price, and can be resorted to only after the latter has proved ineffectual. Old Code, page 360, articles 87, 88, Louisiana Code, article 2541. Or at least, a judicial demand must be made for the price, and subsidiarily only for the rescission, if the price is not paid within the time fixed by the judgment. 10 Toullier, 260. 3 Delvincourt, 78, and notes.</p> <p>The purchaser must be put in default, Civil Code, 2041-2, 1906, and this can be done by the vendor only, if he is ready and willing to perform his part of the contract, and offers to do so. But if he, at the same time, withholds the property under color of a title adverse to that which he had transferred to the vendee, and threatens the vendee with rescission, his demand will certainly not be listened to. 2 Troplong, vente 76.</p> <p>A rescission cannot be ordered when the vendee is disturbed or dispossessed, as in this case, by the act of the vendor or his heirs.</p> <p>5. A vendor who is not willing to receive the price, complains with bad grace of the non-payment of it. Had a demand of payment been seriously made in this case, the vendees would have been obliged to comply with it, only if the demand had been for the amount really due, and not when more was demanded than was really due, as in this case. Again, the rescission could be claimed only if the vendor offered to return what was already paid. These irreconcilable perplexities result necessarily from the contradictory pleas of the defendants. Roche’s heirs cannot claim the payment of the price which it is quite certain never was due to their ancestor, but to Gravier,.</p> <p>Ferrari’s estate is administered under the supervision of the Court of Probates, and the payment of its debts can be required only in the manner prescribed by law. Code. of Practice, article 980.</p> <p>6. The judge of the Parish Court decided correctly, that his- court was without jurisdiction, on the claim for the balance of the price. For this is a debt by a succession, and can therefore be recovered only in the Court of Probates. Code of Practice, article 924, JVo. 13. 3 Martin, N. S. 626.</p> <p>contended that the judge erred in refusing to charge the jury, that when the purchaser fails to pay the price, the vendor, or those succeeding to his rights, may have the sale rescinded.</p> <p>2. In this case Ferrari having failed to pay the principal part of the purchase money to Roche, the defendant, in possession, Roche’s heirs called in warranty, should be allowed to claim a rescission of the sale, in bar of the plaintiff’s right to recover the property.</p> <p>3. The main part of the purchase money being due to Roche’s heirs, they have an undoubted right to claim a rescission of the sale, when their vendees, to whom they are bound in warranty, are sued for the property.</p> <p>4. If the sale by N. Roche, in his life time, was simulated, as appears from the evidence, the defendants have still a stronger claim to its rescission.</p> <p>5. There being a balance due for the price, although it might be necessary to pursue Ferrari’s estate in the Probate Court; yet, where the property is claimed, and the jurisdiction of the District Court attaches, this demand may be claimed in praying for a rescission of the sale. The jurisdiction will, attach to this matter as an incidental demand.</p> <p>6. It is next assumed that the defendants’ prayer for a rescission of the sale, cannot be acted on, because the plaintiffs were not put in mor&. This need not be done by a separate suit, for it is expressly authorized in the principal suit, which was sufficient. 7 Louisiana Reports, 193.</p> <p>first contended that the plaintiff, as administratrix of Ferrari’s succession, has not the capacity to maintain this suit. Women are forbidden to exercise any civil functions except in cases expressly authorized by law. The exercise of a right or authority over the property or estate of another, is a civil function. It has been expressly decided that a woman cannot be curator of an absentee. Caraby vs. Caraby, 7 Martin, N. S. 466.</p> <p>2. Roche’s heirs are the sellers or vendors of this property to Ferrari. If the buyer fails to pay the price, the seller may sue for the rescission of the sale. In this case it is claimed as an exception where they are sued for the property. He who has a right in action, has one more evident in exception, in order to preserve his rights. The endorser who pays Nthe note for the purchase of a slave, is subrogated to the vendor’s right, and may claim a rescission of the sale. Civil Code, 360, article 86. Code of Practice, 20. 2 Martin, N. S., 158. 4 Ibid., 499. 1 Ibid., 468.</p> <p>3. The plaintiffs were put in default by the exception pleaded in the answers, claiming a rescission of the sale. This is equivalent to a demand by commencement of a suit. Louisiana Code, article 1905. Code Napoleon, 1184, 1656. 16 Duranton, 356 to 360, No. 361 to 374.</p>

eastern Dist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT.

Eastern- Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to recover the sum of four thousand dollars, which the plaintiffs had paid for insurance on the brig Zipporah, which was run down whilst ascending the Mississippi river, to New-Orleans, by the steam-boat Natchez, owned by the defendant.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action by the plaintiffs, as holders of a promissory note for seven hundred dollars, drawn by Henry L. Webb, the 10th March, 1834, payable thirty days after date, to Morton, Brown & Co., who endorsed it in blank.

<p>Eastern Dist.'</p> <p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This case comes up on the opposition of Garcia Santa Marina, to the tableau of distribution filed by the syndic of the creditors of the insolvent debtor. He claims to be put on the tableau as a mortgage creditor. The syndic placed him thereon as an ordinary creditor.</p> <p>The facts show that on the 2d April, Santa Marina loaned the debtor four thousand dollars, and took his receipt, specifying that the money was to be returned at tbe end of the month. It not being paid, on the 8th May suit was commenced. The defendant pleaded a general denial, and admitted his signature.</p> <p>On the 22d May, by consent of parties, the jury was waived, and the case submitted to the court on the papers; and on examination, the court being satisfied that the signature to the receipt sued on was genuine, rendered judgment for the amount claimed. This judgment was recorded in the mortgage office the 29th May, 1834.</p> <p>Toussaint filed his bilan on the 20th June, following.</p> <p>The parish judge who tried the opposition was of opinion that the case came within' the words or strict meaning of the 24th section of the act of 1817, declaring null any unjust preference which one creditor may obtain over another. The opposition was overruled, and the opposing creditor appealed.</p> <p>contended, that the judgment was fairly obtained against Toussaint before his insolvency, and duly recorded in the mortgage oifice. It should be placed on the tableau as a mortgage debt.</p> <p>2. An attentive consideration of the 24th section of the insolvent law of 1817, will show that it has no application to this case. There is no confession of judgment, and no evidence to show any collusion or other means to give an unjust preference to this creditor.</p> <p>3. The court is referred to the 3323d article of the Louisiana Code, relied on by the other party. Its prohibitions and restrictions do not apply to this case; the judgment here was obtained more than ten days before the failure, and without collusion.</p> <p>referred the court to the case of Brown vs. Kenner, 3 Martin, 270, where the principle is well settled that an insolvent cannot give an undue preference to any of his creditors.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE PRESIDING. JUDGE OF THE CITY COURT OF NEW-ORLEANS. The plaintiff obtained judgment against the defendant, Bienvenu for four hundred dollars, in the court of the presiding judge of the City Court of New-Orleans. The latter prayed and obtained an appeal directly to the Supreme Court. moved the court to affirm the judgment below, with ten per cent, damages, as. for delay and a frivolous appeal.

EASTERN DlST. APPEAL FROM THE COURT OF THE PRESIDING JUDGE OF THE CITY COURT OF NEW-ORLEANS. The plaintiff instituted suit on two promissory notes executed by the defendant in January and April, 1834, for the aggregate sum of six hundred dollars. The defendant pleaded payment; that when they were paid, the plaintiff pretended he had mislaid the notes, but would destroy or cancel them. On this issue the case was submitted to a jury, who returned a verdict for the defendant.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action instituted by the drawer against the acceptor of three bills of exchange, drawn at New-Orleans, the 28th March, 1836, on Thomas W. Bell, of. Mississippi, (and by him accepted,) in favor of Messrs. Martin & Aikin, payable at sixty, ninety and one hundred and twenty days' after date, amounting to the aggregate sum of nine hundred and sixty-four dollars and sixty-seven cents.

Eastern Dist. APPEAL FROM THE PROBATE COURT FOR THE PARISH ANE CITY OF NEW-ORLEANS. This is an action against the testamentary executor of Charlotte G. Raphael, deceased, by her grand-son, who seeks to recover one third of her estate as her forced heir.

Eastern Dist. APPEAL PROM THE COURT OP THE SECOND JUDICIAL DISTRICT, THE JUDGE THERE OP PRESIDING. This is an action against the defendant, J. P. Knoblock, as surety in a promissory note, executed by Honorie Brou, and ■his wife, Eleanoré Folse. The note is for three hundred and thirty-eight dollars and eighty cents, dated, May 2?, 1833, and payable to the plaintiff, 'in all the month of March, 1834. After the execution of the note, Brou, the husband, died.

Eastern Dist. APPEAL FROM THE COURT OP PROBATES POR THE PARISH AND CITY OP NEW-ORLEANS. This is an action of nullity to annul a judgment of the Probate Court, homologating the tableau of a distribution of the succession ofWm. Hendricks, deceased, f. m. c., on which Ramon Mon was placed as a creditor, for five hundred dollars, which it is alleged he procured through fraud and other ill practices.

Eastern Dzst. APPEAL FROM TIIE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This is a petitory action.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action to recover from the defendants, the value of certain goods shipped on deck and lost, and which belonged to a lot of goods msured generally, to the value of fifteen hum died dollars, on board the schooner Elizabeth and Rebe'cca, from New-Orleans to City Point, in Virginia.

Eastern Dist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. This is an action instituted the- 12th June, 1833, on the following promissory note: “ New-Okxeans, 23d March, 1820. “ One year after date, we promise to pay to the order of A. R. Ellery, the sum of eight thousand five hundred dollars, value received. (Signed,) “ A. L. Duncan, E. W. Ripley, Jas. W. Bredlove, Eben Fiske, Alfred Hennen, J. W. Smith, R. Davidson, J. Brown, John Nicholson, Jos. H. Hawkins, Wm.

Eastern JDist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ASSUMPTION.

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING. Held: that in a case precisely like this, the undertaker had a right to demand payment at once from the parish, and was not bound to resort to the owner of the land. 1 Louisiana Reports, 109. 3. The act of the 8th February, 1831, did not affect the principle established in that decision.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiff alleged the defendant had in his possession a certain slave belonging to him, by the name of Dernps, which he prays may be decreed and delivered up to him, and that in the mean time he be sequestered.

Eastern Dist. ArPEAL FROM TIIE COURT OF THE FIRST JUDICIAL. DISTRICT. This was an action in which the plaintiff sought to recover the sum of three thousand one hundred and sixty-seven dollars, for certain losses and damages sustained on four different parcels of cotton deposited in the defendants’ cotton press. The defendants pleaded a general denial.

Easters Hist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW'-‘ ORLEANS. The plaintiffs allege that on the 1st November, 1834, they leased a lot of ground in the City of New-Orleans, fronting on the Mississippi river, for the purpose of breaking up flatboats, and cutting and selling fire-wood and lumber, for the sum of one thousand dollars per annum, and gave their notes ,to the defendants.

Eastern Dist. APPEAL PROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGg THEREOF PRESIDING. This is an injunction suit. The plaintiff alleges he purchased a tract of land from one Richd. King and James Bowie, who obtained the samé from Lemuel Tanner.

Eastern Dist. APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, TÍIE JUDGE THEREOF PRESIDING. This is an action to recover the one half of a note, and of a mortgage debt, amounting to five hundred and thirty-two dollars, which the plaintiff alleges is due and owing by the defendant, Richard King. That said King resides alternately in two or more parishes, and that he has an establishment in the parish of Terrebonne; is liable to be sued there.

Eastmik Dist. APPEAL FROM THE PROBATE COURT FOR THE PARISH AND CITY OF NEW» ORLEANS. This case presents only a question of heirship and right, of inheritance, among the collateral relations of Mile. Jeanne Laclotte, deceased, and ¡he tutor ad hoc of a certain natural child, who calls herself Margaritte Laclotte, and alleged to be born of a slave woman, named Lañlle, belonging to Laclotte, while her tutor asserts she is the natural daughter of Jeanne Laclotte herself.

Eastern Dist. APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This is an action of homage, in which the plaintiff seeks to have the side lines of his plantation, consisting of two arpents front and forty arpents in depth, run at right angles instead of converging in the rear, so as to include eighty superficial arpents. All the facts and pleadings that are material in the case, are fully stated in the following opinion of the court.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of slander, or jactitation of title. The pleadings and facts of the whole case are so fully set out in the opinion of the court delivered by judge Bullard, that it would be nugatory and tautology to make another statement of the case.

<p>Eastern Dist.</p> <p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This case was before the court on a former occasion, and remanded. See 9 Louisiana Reports, 205.</p> <p>The material facts elicited on the last trial, are stated in the opinion of the court, which follows.</p>

EASTERN DlST. AIl'EAI. PROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is an action for rent. The plaintiff alleges he leased st new house unfinished, but which was finished, and the defendants, Bauduc & Domingon, entered and took possession of the same the 1st of August, 1828, for ten years, at two thousand dollars per annum.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This .is an action instituted by Nicholas Hoey, on behalf of the late firm of Wiley & Cunningham, to recover from the defendant the sum of six thousand one hundred and eighty-two dollars, the balance of an account annexed, which he alleges is due to said firm. The defendant excepted to the authority of the petitioner to sue, and averred that he showed no legal right whatever.

Eastern Dist. APPEAL 'FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, THE PARISH JUDGE FOR THE PARISH OF ASCENSION PRESIDING. The appeal in this case was taken the 20th February, 1837, and made returnable to the first Monday of March following. The transcript of the record was filed the 6th March, but no citation accompanied it.

<p>The hire or rent is due when it depends alone on the will of the hirer or lessee to enjoy the thing hired, or when he has not been prevented from enjoying it by the lessor.</p> <p>It is not of the essence of the contract of affreightment that the merchandize should be transported in the same vessel to the port of destination. In case of necessity, the captain or owner may repair the vessel or furnish another to complete the voyage and earn the freight.</p> <p>If the merchant refuses to allow repairs, or permit the captain to employ another vessel, the owners of the chartered vessel will be entitled to the whole freight of tho full Voyage, although the cargo is not delivered at the port of destination.</p> <p>So, where a vessel was so much injured on the second day of her voyage, as to make it necessary to return to port and repair, and when a large part of the cargo was so damaged th&t it was sold by order of the port wardens, for whom it might concern, and the remainder unfit to ship without repacking : Held, that the freighters of the vessel were hound to pay full freight, as if the cargo had been delivered at the port of destination, by declining to r.e-ship, on being notified ten days after the accident, that the vessel was ready to take in the cargo and proceed on her voyage.</p> <p>The hire or .rent is due when rt depends alone on th.e*\vill of the hirer or lessee to enjoy the thing hired, or when he has not been prevented from enjoying il by the lessor.</p> <p>It is not of the contract 'of af-freightment that the merchandize should be trans-same^vessei ^to the port of dcsti-of necessity, the may'1repah'Vthe vessel, or furnish another to com-píete the voyage freight.</p> <p>ref^es'tf’Sow repairs, or per-S'employ owners SSof' the chartered vessel to the -whole voyage,although the cargo is not delivered &t tbe port Of destina-tl0n-</p> <p>So, where a mueh injured on *.e astomakeitne-tiTport and re-paíof the cargo was so damaged that it was sold by 01-wardens?"5 Pfor whom ;t mjsht concern, and the remainder unfit nepaciangT/S', that the freighters of the vessel were hound to a^Ah/Tm-go had been delivered at the port of destination, re-shfplonheing-notified ten days ant lthat a<the vessel was ready cargo and1 pro-vova °n her</p>

Eastetix Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to recover from the defendants, Thomas Clarke and Samuel Locke, owners of the steamboat Freedom, the sum of one thousand dollars, damages, for the value, and two hundred and fifty dollars for the hire of a slave, named Eliza, retained bn board said steamboat after the time agreed upon, and lost.

Eastern JBist. APPEAL EDOM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action against the defendants as sureties for a .elerk in the Union Bank, who had embezzled the funds ef Abe Bank to the amount of five thousand six hundred and fifty dollars. The defendants are sued on their bond, which ,is given in a penalty of five thousand dollars, for which amount the plaintiffs pray judgment.

Eastern Dist. AP.PEAL FROM THE COURT ,OF THE FIRST JUDICIAL DISTRICT. The Commercial Bank of New-Orleans claims the sum of twelve thousand five hundred dollars, from the corporation of the City of New-Orleans, being the sum advanced from the funds of the bank to pay the first instalment of interest on the corporation bonds, which were sold to the Bank of America, in New-York, to raise the amount of capital, (-half a million,) subscribed by the corporation in said bank.

<p>Where the corporation of New-Orleans became a stockholder by being permitted to pay its stock in its own bonds bearing an interest, payable semiannually, it is bound for the payment of this interest as it becomes due,, or to refund the bank when it advances funds for this object.</p> <p>Where the corporation of NewOrJeansbe-came a stockholder, by being permitted to pay its stock in its own bonds, bearing* an interest, payable semiannually, it is bound for the payment of this interest as itbc-comes due,or to refund the bank when it advances funds for this object.</p>

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiffs, Marie Anne, Marie Henriette, Louis Victor and Joseph Hypolite de Sarcé, all residing in France, are the grand nephews and nieces of Rene Louis Dunoyer, who died in New-Orleans, the 25th June, 1835, where his succession was opened.

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS: On the 25th May, 1835, Nathaniel Cox, executor of the last will of Samuel Elkins, deceased, presented his account to tile Court of Probates, and prayed that, after the usual delay and advertisement, it be homologated, and that he be discharged from his trust, after paying the legacies.

Eastern Dist. AITEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This suit is instituted on two orders drawn by A. T. Wood, .on the New-Orleans Architect Company, in favor of the plaintiffs ; the first dated June 11th, 1834, for five hundred and forty-six dollars and fifty-six cents, payable out of the first moneys that may be due him (Wood) on his contract with said company, with seven per cent, interest until paid.

<p>EASTERN DlST.</p> <p>ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action to recover the sum of five thousand dollars, under a mercantile guaranty. The plaintiff, W. C. Williams, was endorser and surety for the firm of Reynolds & Ayars, of Louisville, Kentucky, at their failure in July, 1833, under the following guaranty from James M. Reynolds, Esq., then residing in Mississippi.</p> <p>On the 1st October, 1832, Mr. Reynolds writes to Mr. Williams, and says, “ I am informed by Mr. Robert Ayars, that you occasionally endorse for him. My nephew, Wm. Reynolds, having associated himself with Mr. Ayars, in business, I am desirous of affording them some aid, and asked' Mr. Ayars what I should do. In reply, he requested me to forward a guaranty for your endorsement for Reynolds & Ayars, to the extent of five thousand dollars, as they may require it, ivhich I now do, and must beg to refer you to Mr. Ayars, (who will hand you this,) to apologize for my taking this liberty without a personal acquaintance.”</p> <p>On the 23d November, he writes as follows, to Mr. Williams, “ I am, in receipt of your valued favor of the 1st instant, acknowledging the receipt of my note guarantying the safety of your endorsement for Messrs. Reynolds & Ayars, of your city, to the extent of five thousand dollars, which I now confirm. This I intend as a standing accommodation to them at home; and I now offer to you a further guaranty for your endorsement to the extent of five thousand dollars, on bills of exchange, which they, the said Reynolds & Ayars may have occasion to draw on their consignees, in New-Orleans, on account of shipments of produce they may make from time to time ; these guarantees to continue and be in force until the 1st day of January, 1834.”</p> <p>The defendant pleaded a general denial.</p> <p>The evidence showed that during the continuance of this guaranty, Williams endorsed on the paper of Reynolds & Ayars, in bank and otherwise, to the amount of more than five thousand dollars, at the time of their failure, about the 20th July, 1833. That on the happening of this event he wrote to Mr. Reynolds, who was then at Philadelphia, informing him of what had occurred, to which Mr. R. replied, “ Dear Sir : I am this moment in receipt of your favor of the 29th ult., informing me that Reynolds & Ayars had stopped payment, and that you were on their paper for a considerable amount,'under my guaranty. Rest assured, I will strictly comply with my guaranty, and will be in your city in a few weeks, on my way home, when all shall be made straight.” “ I am happy to hear from you that they will be able to pay all their debts, and have something handsome left.”</p> <p>a witness for defendant, says he was a clerk to the firm of Reynolds &-Ayars, and that the bills and notes sued on were endorsed by Williams, for said firm, under the guaranty of James M. Reynolds, the defendant. That Williams was in great habits of intimacy with Reynolds & Ayars; was generally in their counting room, and had access to some of their correspondence, and might have had to all of it for any thing he knows to the contrary.</p> <p>On being asked if he knew of any correspondence of J. M. Reynolds withdrawing his guaranty, or if he had any such letter, or a copy, witness says, a letter to this effect was* received by Reynolds & Ayars, as I was informed by them, but I never saw it until yesterday. He has not the original, or a copy, and does not know if said letter was ever read or shown to said Williams. Witness, as clerk to Reynolds & Ayars, was in the habit of taking their notes and bills to Williams to endorse; that about March, 1833, witness took a note or bill for Williams’ endorsement, and he told witness that he was aware that the guaranty of James JIÍ. Reynolds had been withdrawn; but that he would still go on to endorse notes and bills drawn for the purpose of taking up notes and bills which he had endorsed before he received this information.</p> <p>Witness says, “Williams has not been secured for the bills and notes mentioned in the petition. At the time of the failure of Reynolds & Ayars, (about the 20th July, 1833,) Ayars offered to pay Williams by. transferring to him as much of their stock as would pay or secure him. Witness advised him to take it, but he refused, saying, that he relied on the guaranty of James M. Reynolds, and considered himself perfectly safe.”</p> <p>The case was submitted to a jury under instructions from the court, who returned a verdict for the plaintiff, and from judgment rendered thereon, the defendant appealed.</p> <p>argued from the evidence and letters of guaranty, the defendant was bound for the sums claimed in the petition.</p> <p>2. The plaintiff was not bound to accept-a transfer of the goods of the debtor in payment or in security for the sums for which he was bound on their account. This was forbidden by the Louisiana Code, as giving one creditor a preference over others, and the law of Louisiana must govern when it is not shown what were the laws of Kentucky on this subject.</p> <p>3. The plaintiff gave the proper notice and had a right to rely on his guaranty.</p> <p>contended, that to entitle the plaintiff in this case to recover on said letter of guaranty, he must prove that after all the transactions between him and Reynolds & Ayars, under said letter. of guaranty were closed, he gave notice to the guarantor of the amount and extent for which he was held responsible within a reasonable time afterwards. 7 Peters, 126.</p> <p>2. That the plaintiff must prove, in order to recoyer in this cause, that he first made demand of Reynolds & Ayars of payment of his liabilities for them, and in case of their nonpayment, that he gave notice of such demand and non-payment to the defendant in a reasonable time, otherwise the defendant is discharged from bis guaranty. 7 Peters, 127.</p> <p>3. That the letter of guaranty was revoked and cancelled by the defendant before the liabilities were incurred, upon which this suit is brought.</p> <p>4. That said plaintiff assumed these responsibilities upon the faith and credit of Reynolds & Ayars, and not under the guaranty from defendant, which was notin force or operation at that time.</p> <p>That if said guaranty had not been countermanded at the time that the plaintiff made the acceptances and endorsements hereupon sued, still the defendant would not be liable wilder it, inasmuch as he was only collaterally bound upon the. failure of the principal debtor to pay the debt, and Reynolds & Ayars being the principal debtors, offered to secure to plaintiff his demand against them, which he refused to accept.</p> <p>6. That the exception made to the charge of the judge to the jury by the defendant, ought to be sustained.</p> <p>7. That the verdict in this case is contrary to law and evidence, and ought to be disregarded and set aside.</p> <p>on the same side, added, that as Williams was offered indemnity or payment, or might have secured the debts for which he was bound, it was his duty, being on the spot, to have done it; if only for the benefit of the guarantor.</p> <p>2. The guarantor, being only collaterally liable, has a right to call on the creditor or person guaranteed, to do the best he can for his benefit. He is even bound (if the expenses are paid) to prove the claim against the debtor under a commission of bankruptcy, and give or secure to the guarantor the benefit of an assignment in that way. Fell on Mercantile Guarantees, page 230.</p> <p>3. Williams informed Reynolds that R. & A. would have considerable property left after payment of all their debts. Why did he not secure himself and his guarantor Í</p>

Eastern Dxst. APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is an action in which the plaintiff claims a salvage of one third of the value of the cargo, for stopping and making fast a flat boat loaded with corn, which was drifting down the Mississippi river, about seven leagues below the city of New-Orleans.

Easters Dist. APPEAL PROM THE CÓUKT OP THE PIRST JUDICIAL DISTRICT. This is an action in which the plaintiff claims six hundred and fifty dollars in damages, for the non-délivery according to contract, by the defendant, of one hundred and twenty-six head of beef cattle. The defendant denied- his liability, and set up various matters in defence. , The pleading and facts of the case, are sufficiently set forth in the following opinion of the court.

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This is an action for a separation of property by the wife against her husband, and for an injunction to restrain the sheriff from paying over to Hall & Runyon, seizing creditors of her husband, the sum of three thousand two hundred and ten dollars, being the proceeds of a house and lot seized and sold as his property.

Eastern Dist. Appeal from the parish court for the parish and city of new-ORLEANS.' This is a petitory action. The plaintiff claims an improved lot of ground in the city of New-Orleans, situated in St. John street, in the possession of the defendant. He alleges he purchased the lot from John Gravier, in 1822, and has since rented it to one Thomas Smith, f. m. c. That since then, in 1832, the defendant took illegal possession of the same, and still retains it.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to recover the sum of six hundred and fifty-three dollars, the balance on a contract for building a store for the defendants. The contract and an account was annexed to the petition. The defendants pleaded a general denial to the account, and admitted their signatures to the contract, but required strict and legal proof of every other matter alleged.

Easters' Dist. ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an hypothecary action. The plaintiff alleges that while the community of property existed between her and her late husband, Paul Lanusse, he purchased a valuable house and lot in the city of New-Orleans, at the corner of Bienville and Dauphine streets, which he afterwards sold, and is now in the possession of the defendant.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This suit is instituted to recover from the defendant the balance of a bank account amounting to one thousand three hundred and eighty-five dollars. The defendant denied that he owed the bank or had overdrawn bis account.

Eastern JDist. APPEAR FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. The plaintiff shows that a short time before the 17th day of May, 1832, he formed a partnership with M. Duralde, J. B. Perrault and Livaudais, Charbonnet & Co., and that it became necessary to purchase slaves to carry on their partnership business. At the above date the partnership purchased thirty-seven slaves, each partner giving his own notes for his share of the price.

Eastern Dis-r. APPEAL FROM the court of projjates for. the parish and city of NEW-ORLEANS.

Eastern Dist. APPEAL FROM THE rARISII COURT FOR- THE PARISH AND CITY OF NEW-ORLEANS. This suit was instituted to recover an account for merchandize and groceries sold and delivered to the defendant, amounting to three hundred and fifty dollars. The plaintiffs had final judgment without any answer filed or defence made.

Eastern Dist. ArPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW ORLEANS. This is a petitory action.

<p>Eastern Dist.</p> <p>ATPEAL EROM THE COURT OE THE EOURTII JUDICIAL DISTRICT, THE JUDGE 01' THE SECOND PRESIDING.</p> <p>This suit commenced by an injunction obtained by the wife of Phillippe Robillard, to stop a sum of money in the hands of the sheriff of Pointe Coupée, in order that she might exercise her right of mortgage thereon, and be paid in preference to the defendant, who was the seizing creditor.</p> <p>The plaintiff offers proof to show that her husband received one thousand one hundred and eighty-three dollars from her mother’s estate, in March, 1813, being on account of her inheritance, and which is recognized in a judgment of separation of property, which she obtained against her said husband in 1816.</p> <p>Phillippe Robillard, the husband, inherited by the death of his mother, in July, 1833, the one fifth part of her succession, amounting by inventory to seventeen thousand four hundred and one dollars. B. Poydras de la Lallande, who had obtained a judgment against Robillard as far back as the 6th December, 1816, siezed the share of his inheritance coming from his deceased mother, which was sold, and the proceeds retained in the sheriff’s hands, subject to the respective mortgaged and privileged claims on it.</p> <p>At this stage of the cause, the heirs of B. Olinde, to whom the mother of Robillard had been married after the death of h,er first husband, intervened and claimed to be paid in preference to the wife, the amount of a judgment for one thousand four hundred and forty dollars, obtained by B. Olinde against Robillard, the 21st November, 1815. This judgment was based on a general and special mortgage given by Robillard, dated the 25th May, 1813.</p> <p>The judgment of the District Court upon these several claims, allowed the plaintiff’s claim to be paid by preference over all the others, and that the balance in the sheriff’s hands should be divided rateably among the other creditors without any regard to privileges or .mortgages. The heirs of Olinde appealed.</p>

Eastern Dist. ArPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS. The heirs of the widow Saulet took a rule on the defendant to show cause why a certain lot of ground, situated in Faur bourg Saulet, which was adjudicated to him as the last and highest bidder, by the register of wills, at a probate sale of their deceased ancestor’s succession, made the 4th April, 1836, should not be re-sold at his risk and cost.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to annul an adjudication of a sugar plantation belonging to the plaintiff and made to the defendant by the parish judge, as auctioneer.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. The plaintiff claims a lot of one hundred and twenty-eight hogs, worth ten dollars per head, which he alleges are in the possession of the defendant, who has combined with a certain Charles Foster, to defraud him • out of his property. He prays judgment for the restitution, and in default thereof for the value of said hogs, and damages.

Eastern Dist. ATÍEAL FROM THE CdüllT OF PROBATES FOR THE PARISH AND CITY OS’ NEW-ORLEANS. On the 7th May, 1836, Alexander Kirkman made application to be appointed curator of the vacant estate of W. G. Logan, deceased, on the ground that said Logan at his death was a member of the firm of A. Kirkman & Co., and was considerably indebted to it, and that the applicant was consequently a creditor of said estate.

Eastern Dist. APPEAL PROM THE COURT OE THE EIRST JUDICIAL DISTRICT. This is a suit on a promissory note executed by the defendant to the plaintiff, for thirteen thousand six hundred and fifty dollars, dated the 16th August, 1835, payable the 15th February following, at the counting-house of Lambeth & Thompson, in New-Orleans. The defendant averred that at the time the note sued on was given, he was in partnership with the plaintiff in buying and selling slaves.

Eastern Dist. AITEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to recover a balance in the hands of Perret & Charbonnet, which they retain as commissions on the sale of property of the plaintiff. This case was once before in this court and remanded. On its return to the District Court, the contest was chiefly about the amount of commissions to be allowed the defendants.

Eastern Dist. APPEAL FIIOM TIXE COURT OF THE FIRST- JUDICIAL DISTRICT-. This is an action for slander. The plaintiff alleges that the defendant instituted a suit some time ago against him for a libel, which he delayed for a great while, and finally took a non-suit.

Eastern Dist. APPEAL FROM THE COURT OF TROBATES FOR THE PARISH OF WEST, FELICIANA. This is an action by a partner against the succession of his co-partner, claiming a balance of five thousand dollars, as due from the latter, and also the amount of a note, executed by his co-partner with sureties, after the dissolution of the partnership, and made payable to the firm. See the case, 7 Louisiana Reports, 66. See also 11 Peters’ Reports, 25.

ON A RE-HEARING. Western Dist. This case comes up on a re-hearing. At the September term, 1834, of this court, holden at Opelousas, a judgment was rendered condemning the representative of Dr. Duhamel and his surety, to pay to the plaintiff the price of a tract of land, originally purchased at the probate sale of Melantjon’s succession by Duhamel. The latter resisted' payment on the ground that he was evicted by a judgment of court, obtained by Pierre Broussard.

Westf.hn Dist. AEPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, EOR THE PARISH OE LAFAYETTE, TIIE JUDGE OE THE SIXTH DISTRICT PRESIDING.

<p>WESTERN DlST.</p> <p>APPEAL PROM THE COURT OP THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. LANDRY, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action on a notarial act, executed the 21st Au- ' gust, 1815, by the attorney in fact of the plaintiff, to Syda-lise Thompson, in which he sells and conveys to her a slave woman, named Becky, and her two infant children, named William and Louise, for the sum of one thousand dollars. The act was made single and signed by the plaintiff’s attorney alone, before the notary and two witnesses.</p> <p>On the 18th May, 1818, John Thomps'on executed before a notary, a confirmatory act of said sale, accepting and approving it on the part of his wife ; and on the 10th of November, 1831, this suit was instituted against the widow and heirs of John Thompson, for the price of said slaves, as specified in said act, without alleging a privilege or mortgage on the things sold, but simply praying judgment for the price and legal interest thereon.</p> <p>The defendants pleaded the general issue ; denied specially that (hey were indebted to the plaintiff; that if they ever were indebted in the obligation sued on, it had been long since paid. They further pleaded prescription, and that the action was barred by lapse of time.</p> <p>Upon these pleadings and issues, the cause was tried before the court.</p> <p>The evidence showed, that when this sale was executed, Madame Thompson’s husband was living, and attended to all the payments; that the plaintiff was a relation, and in 1814 obtained a commission in the marine service, and the next year when leaving Louisiana, he made the sale of the slaves in question, who were then mortgaged for a debt which had to be paid off by Mrs. Thompson and her husband, before getting possession.</p> <p>G. Chretien, witness for plaintiff, says, he made the sale as attorney for G. Thompson ; that at the time there existed a mortgage on the slaves, (Beclcey and her children, William and Louise) in favor of Gradnigo, and they were in his possession ; that he paid, at the instance of Thompson, about two hundred and forty dollars principal, and some interest or costs; that he has since been reimbursed by Thompson the sum he paid, which was, as well as he recollects, about three hundred dollars.</p> <p>In addition to this, it was in proof, J. Thompson paid off a note of plaintiff’s to J. H. Thompson, for three hundred and fifteen dollars; and also one hundred and thirty-one dollars in satisfaction of a judgment for balance of price (and the costs) of the slave Becky, due by, plaintiff since 1810 ; payment of fees to W. L. Brent, Esq,, for defending these slaves against the creditors of G-. Thompson, was shown to the amount of seventy-five dollars; aggregate of actual payments proved, eight hundred and twenty-one dollars.</p> <p>Presumption of complete payment was made, as resulting from the testimony of the following witnesses.</p> <p>was asked the following interrogatory: “ Did or did not Gillis Thompson, the plaintiff, propose through you as agent or friend, after his return from the marine service, to J. Thompson or his wife, (now defendant) that if they would let him have Becky’s two children, (William and Louise) he would give them two other likely young negroes of equal value 1 Did you not make the proposition accordingly 1 If you please, state the particulars of it, and also the answers of J. Thompson and wife thereto.”</p> <p>Witness answers : “ Yea; I cannot state the time G. Thompson, the plaintiff, authorised me to make the offer, but John Thompson agreed to take it.”</p> <p>Brent says, on being asked if he had not heard the plaintiff say he was willing to buy them, or to give their full value in other negroes for the two children of Becky ; that the impression-is on his mind that he did, but is not positive..</p> <p>states further, that Mr. J. Thompson had paid, not only the amount of the purchase money of Becky and her two children, but beyond that sum, because when Gillis Thompson went away, he was very much indebted ; that several judgments existed against him, and to have the free possession of said slaves, J. Thompson had been obliged to pay them over. Witness says, that J. Thompson had also some law-suits for that object.”</p> <p>Witness further states, that “ he thinks the price for which the said slaves were sold, was the worth of them.”</p> <p>Records of suits and other evidence was produced, showing the embarrassments and insolvency of the plaintiff at the time of sale, as tending to raise the prescription of full payment ; especially* as connected with his silence for so long a time before a demand of payment.</p> <p>The district judge was of opinion, that the defendants had satisfactorily shown, that the whole price of the'negroes sued for, had been paid long before the institution of suit. Judgment was given for the defendants, from which the plaintiff appealed.</p> <p>urged the reversal of the judgment. He contended, that the evidence relied on to raise the prescription of payment, was insufficient. Most of it was derived from the declarations of the defendant’s husband, which were not legal proof. Some of the payments proved, should be allowed, but there was a balance due.</p> <p>2. The plea of prescription should be overruled. This is an hypothecary action on a notarial act, which, by the laws in force at the time, is not prescribed until the lapse of thirty years. The case of Goddard’s heirs against Urquhart, does not apply to this.</p> <p>showed, that from the evidence of the plaintiff’s embarrassments and indebtedness, when he left the state in 1815, at the time of this sale, that there was strong presumptive proof of complete payment of this demand, long before the suit. His silence for seventeen years, when in' needy circumstances, and his proposal to exchange other negroes for the one he sold, without ever demanding the price, is also evidence that he considered the whole demand paid. There is proof of actual payment for a considerable amount.</p> <p>2. This is a personal action. It is a simple demand for the price of certain slaves, without any claim of mortgage or privilege. Personal actions are, and were prescribed, even -before the Louisiana Code, by ten years. See case,of Goddard’s heirs vs. Urquhart. 6 Louisiana Reports, 649.</p>

WesternDist. ATPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING. This is an action on a curator’s bond against the surety therein. The plaintiffs allege, that the estate of Robert S. Barr, deceased, in the Parish of St. Mary, is indebted to them in the sum of three hundred and sixty-seven dollars, with interest. That R. S. Brashear was duly appointed curator of said estate, with the defendant, Walter Brashear, his surety, in the bond.

Western Dist. APPEAL FROM THE COURT OP THE FIFTH JUDICIAL DISTRICT POR THE PARISH OP ST. MARY, THE JUDGE THEREOF PRESIDING. This suit was commenced by an opposition of the plaintiff to an order of seizure and sale, obtained by the defendant, against certain slaves in the possession of Wm. Youngblood. ' The plaintiff alleges, she is the owner of said slaves.

Western Dist. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. MARY, THE JUDGE OF TIIE DISTRICT PRESIDING. xThe plaintiffs, Thomas Youngblood, for himself, and as tutor of his younger brother and sisters, who are all the children of General William Youngblood, made opposition to the seizure of twenty-three slaves, by the defendant, who claimed the right to sell them, under a mortgage from General Young-blood to himself, for the security and payment…

Western Dist. APPEAL PROM THE COURT OP THE PIPTII JUDICIAL DISTRICT, POR-THE PARISH OP ST. MARTIN, THE JUDGE OP THE SEVENTH DISTRICT PRESIDING. This is an action of partition.

WESTERN DlST. APPEAL PROM THE COURT OP THE FIFTH JUDICIAL DISTRICT, POR THE PARISH OP ST. MART, THE JUDGE OP THE SIXTH PRESIDING. The plaintiffs claim several head of cattle branded with their brand, as their property, which they allege are in the possession of the defendant, and for which they pray judgment in kind, or for their value in money. The defendant pleaded a general denial.

Western Dist. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. MARY, THE JUDGE OF THE SIXTH PRESIDING. This is an action instituted by the syndic of Bendy’s creditors, and of certain creditors of Joseph Dugat and wife, who are alleged to be absentees, to annul and rescind a sale of a certain tract of land to the defendant, on which the creditors of Dugat and wife, allege they have mortgages existing previous to the first sale.

WESTERN DlST. ATPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. MARY, THE JUDGE OF THE SIXTH PRESIDING. This is an action on a promissory note of the defendant for five thousand five hundred dollars, payable the first of April, 1835.

<p>Western Hist.</p> <p>arrEAL FROM the court of the fifth judicial district for the PARISH OF LAFAYETTE, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This is an action to recover the sum of four hundred and nighty-nine dollars and thirty-one cents, the balance of an account annexed as due by the succession of John Muggah, deceased.</p> <p>The plaintiff alleges, that the deceased was indebted to him for a draft on the state treasurer, and for sundry clerk and magistrate’s fees ; and that his estate is further indebted to him for commissions and clerks’ hire, in settling and administering its affairs, making in all the sum he claims. He further shows, that James Muggah, for himself, and as curator of Edward Muggah, an absent brother, has accepted the succession of their deceased brother simply and absolutely, and are liable for all the debts thereof.</p> <p>' The defendant denied the correctness of the account sued on; required strict proof of every item, and the rejection of such as were not so 'proved. He pleaded payments to a large amount exceeding any aggregate sum due, and for such excess claimed judgment in re-convention. Prescription was also opposed to the fee-bill items.</p> <p>When the cause was thus at issue, referees were appointed, who reported a considerable balance in favor of the plaintiff. In this stage of the cause, James Muggah died ; his legal representatives and heirs were made parties and cited in. No curator or other representative was appointed for Edward Muggah, who resided in England.</p> <p>The heirs and legal representatives of James Muggah, denied the jurisdiction of the District Court. They averred, that the Court of Probates ■ for the parish of St. Mary alone, had jurisdiction in the case, being the place of their ancestor’s domicil, where his succession was opened, and where they resided. They further objected to the report of the referees.</p> <p>Upon these pleadings and issues, the case was tried before the court.</p> <p>Without noticing the plea to the jurisdiction, or any other matter in the pleadings, the district judge went on to state an account between the parties upon the evidence produced, and rendered judgment in favor of the plaintiff for three hundred and twenty-five dollars and fifty-nine cents ; from which the defendants appealed.</p> <p>contended against the plea to the jurisdiction ; and urged, that this court clearly had jurisdiction as to James Muggah, personally, so soon as he had pleaded to the merits ; his subsequent death could not oust that jurisdiction when it once attached. Code of Practice, article 81, 180, 361.</p> <p>8. Each heir of a succession who has accepted the same, purely and simply, is bound for his virile portion of each debt of the succession so accepted. See Muid vs. Stelle’s Heirs. 'Louisiana Code, 1214-15, and 1370, 1372, 1376. Code of Practice, 40.</p> <p>3. It is admitted, that so far as Edward Muggah is concerned, no judgment could be rendered, but the plaintiff ought to be maintained in his judgment for the one half of his claim, as against James.</p> <p>4. There is no law authorizing this cause to be transferred to the Court of Probates, in the parish of St. Mary, or from one court to another, except in one or two special cases that are not provided for in either of the codes, but by special statutes; that when a party has mistaken the court, before which his action ought to have been brought, the only thing the court can do is to dismiss it.</p> <p>5. This court clearly had jurisdiction of one half of the claim as against Edward Muggah, whose only interest is in the parish of Lafayette, where the succession of John Muggah was opened, and where alone a curator to Edward, an absentee, could be legally appointed. Court of Probates, 50, 1105.</p> <p>1. The heirs and legal representatives of James Muggah, could only be sued in the Court of Probates, for the Parish of St. Mary, where the succession was opened. The District Court has no jurisdiction whatever in suits against a succession. 1 Louisiana Reports, 526.</p> <p>2. The Probate Court has exclusive jurisdiction of suits against the curator of an absentee. Code of Practice, 983.</p> <p>3. In this case there was no curator when judgment was rendered, to represent E. Muggah. Curatorship is a personal trust and dies with the person appointed. Louisiana Code, 52-3.</p>

Western Dish APrEAL FROM THE COURT OF PROBATES FOR THE PARISH OF LAFAYETTE. This is an action by the heirs at law of Dorothée Hebert, deceased, against Joseph, Ursin and Marguerite Hebert, also collateral relations of the deceased, to recover from them her estate, which the defendants’ claim and possess under her last will and testament, as her universal legatees.

Western Dist. APPEAL FROM THE COURT OE THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. MARTIN, THE JUDGE OF THE SIXTH PRESIDING.

Western Dist. APPEAL FROM THE COURT OP THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OP ST. MARTIN, THE JUDGE OF THE SIXTH PRESIDING. This is an action by an overseer against his employer, for the recovery of wages due.

<p>Western Disx.</p> <p>APPEAL EROM THE COURT OE THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OE ST. MAR5T, THE JUDGE OE THE SIXTH PRESIDING.</p> <p>This is an action for damages on account of the nondelivery of a quantity of sugar agreeably to an alleged contract.</p> <p>The plaintiffs allege, that Charles De Blanc, a member of their commercial firm, on the 15th December, 1835, contracted with the defendant for the purchase of his sugar crop of that year, being one hundred and seventy-six hogsheads of prime sugar, at eight and a half cents per pound, to be delivered in a few days on his plantation; that the defendant failed and refused to deliver said sugar according to his agreement, whereby he is liable to pay damages for the amount of nett profits they might have made, had the sugar been delivered. They further show, that had said sugar been delivered at the time agreed upon, they could have sold it for twelve and a half cents per pound, which would have yielded them a profit of seven thousand eight hundred and fifty-four dollars, for which they pray judgment, as damages.</p> <p>The defendant pleaded a general denial, and averred, that he admits Charles De Blanc, one of the plaintiffs, made a proposition to him in December, 1835, to buy his sugar crop, at eight and a hsilf cents per pound, to which he assented ; but that the said Charles was at the same time apprised, aiad knew the fact well, that Lastrapes & Desmare, commission merchants in New-Orleans, were his agents to sell his sugar, and had full power and authority to sell it to any other person; that these agents in the mean time, and before they could have any knowledge of this transaction, did sell the said sugar, and this respondent could not do otherwise than abide by and comply with the terms of the sale so made. He avers that this action is unjust and illegal, and prays that it be dismissed.</p> <p>Upon this issue the cause was tried before a jury.</p> <p>The evidence showed, that about the same time the agreement sued on was entered into, Lastrapes & Desmare sold the sugar in question, in the city of New-Orleans, for nine cents, deliverable on the plantation of defendant, in the parish of St. Mary, the 15th January following.</p> <p>a witness, says, that De Blanc called on him in New-Orleans, early in December, and he proposed to sell defendant’s, and several other sugar crops in the neighborhood to him at eight and a half cents, cash, which he refused to give ; that De Blanc started to Attakapas, in a day or two afterwards. Witness received a letter from A. Fusilier, senr., dated the 12th December, 1835, whose sugar was included with that of the defendant’s, that he would have been satisfied with the price he offered the sugar to Durrive and De Blanc at, and as he had not seen Mr. De Blanc yet, in Atta-kapas, he (witness) might sell the sugar to whom he pleased;, and upon this letter the sugar was sold in New-Orleans. Witness states that from the manner in which plaintiff called on him to buy the sugar in question, they must have known he had authority to sell it for defendant.</p> <p>fils, a witness, says, that he received a letter from Lastrapes & Desmare, dated in New-Orleans, early in December, and brought by the same boat in which Mr. De Blanc came up, in which they state that sugar was worth eight and a half cents on the plantations ; that he (witness) showed this letter to De Blanc, who said they (L. & D.) had spoken to him in the city about the sale of sugar in Attakapas, but had come to no conclusion.</p> <p>The whole evidence showed, that at the time De Blanc made the bargain with defendant for his sugar, in the parish of St. Mary, that he knew that Lastrapes & Desmare had authority to sell the same sugar in New-Orleans ; that Las-trapes & Desmare advised the defendant, and others, by letter, dated 18th December, 1836, that they had sold their sugar for nine cents per pound, in New-Orleans. The defendant refused, on receipt of this information, to deliver his sugar to plaintiffs, except about three hogsheads which he made a present to them.</p> <p>The district judge who presided at the trial, instructed the jury as follows :</p> <p>“ There are two sales of the sugar in question; the first in point of time, was made by defendant to plaintiffs; the second, by defendant’s agents in New-Orleans, to another person. Either of these sales would fie good against the seller, and whichever buyer first got possession, would hold the sugar against the other. As far as depended on the mere agreement of sale without delivery, the first in point of time would be considered best, if there was a contest between the buyers; but even the last sale was binding on the seller, as his agents were authorised to sell, and did not know that their power was at an end. The principal was bound to ratify it.</p> <p>“ It is urged, that plaintiffs knew at the time they bought of defendant, that his agents were authorised to sell the same sugar in New-Orleans, and were aware of the probability of its being then sold, or before the agents could be informed, etc. ; that defendant sold in the belief that his agents had not sold, or sold under the implied condition that it had not been sold by his agents, or would not be sold before he could inform them of this sale. If there had been an expressed condition of this kind, there would be no difficulty; this sale would be suspended by it, until it could be known whether it would be sold by defendant’s agents when they heard from their principal; but there is no expressed condition.”</p> <p>“ The first question for the jury to consider or to ascertain, is, whether this was understood by both parties. If the evidence and circumstances of the case show that defendant made the sale on condition or belief that his agents should not have made it when they would hear from him; and whether plaintiffs knew that defendant acted from this motive, and on this belief. If the evidence shows that this was the motive of defendant, and that plaintiffs knew it, and from all the circumstances of the case, this condition was clearly understood between them, then this tacit condition would be as binding on them as if it had been expressed ; and that the plaintiffs would have no right to recover damages, because it would be a sale with a suspensive condition understood.”</p> <p>Exceptions were taken to parts of this charge.</p> <p>There was a verdict and judgment against the defendant of ten dollars in damages and costs, and the plaintiffs appealed.</p> <p>On the appeal the defendant prays, that judgment be rendered in his favor,</p> <p>1. It was not necessary to put defendant in mora, because the violation of the contract complained of, was active, Louisiana Code, 1925, 1926, and 1927. n. 1.</p> <p>2. The proper measure of damages is the loss plaintiffs have sustained, and the profits of which they have been deprived by defendant failing to comply with his contract. Louisiana Code, 1928. 6 Toullier, 273. n. 263.</p> <p>3. Defendant is liable for such damages as may reasonably be supposed to have been contemplated by the parties, at the time of making the contract. Louisiana Code, 1928. n. 1. 6 Toullier, 275-6. n. 264.</p> <p>4. The damages ought to be estimated according to the value of the sugar in New-Orleans, the port of its destination, and the place where defendant knew plaintiff intended to convey and sell it.</p> <p>The plaintiffs’ agent (C. De Blanc) had full knowledge when he contracted, of the defendant having authorised his agents in New-Orleans, to sell the sugar in question. De Blanc had himself applied to the agents in New-Orleans, before he came to Attakapas, to purchase this sugar, and instead of closing the bargain with them, came and applied ^ principal at his plantation, expecting to get a better bargain; but he knew at the same time, the agents could sell immediately to any other person. He made the contract with the defendant, knowing all this, and of course run the risk of its being sold in New-Orleans.</p> <p>2. The plaintiffs’ agent and partner, purchased the defendant’s sugar crop with the tacit condition, that it could be delivered only in case it was not sold in New-Orleans. It having been so sold, the condition applies, and the defendant is not bound to deliver the sugar to the plaintiffs.</p> <p>3. As to the question of the sufficiency or insufficiency of damages, they cannot in any event amount to more than the difference of the price, between the time of contracting and that of executing the obligation ; and that the rule of damages should be the price of the article at the time and place of delivery. Louisiana Code, 1928, 2418. 6 Toutlier, Mo. 540. 12 Martin, 675. 8 Louisiana Reports, 521. Domat, liv. 1, title 2, section 2, Mos. 16, 17, 18. 14 Johnson, 128, 170. 3 Wheaton, 200. 3 Cranch, 297. Wharton’s Digist, 108, Mos. 39, 40.</p>

WesternDist. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, FOR THE TARISH OF ST. LANDRY, THE JUDGE THEREOF PRESIDING, This case came up on a second appeal. It was dismissed at the last term of this court, on the ground of the insufficiency of the appeal bond. See 10 Louisiana Reports, 252. The judgment appealed from was rendered the 30th May, 1836, and the present appeal was granted the 13th May, 1837.

Western JDist. APPEAL PROM THE COURT OP THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. LANDRY, THE JUDGE OP THE DISTRICT PRESIDING. This is an action by an heir at law, claiming a share of the succession of her deceased sister, who was the wife of the defendant, who holds possession of it under a will, as instituted heir and universal legatee.

Western Dist. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. MARTIN, THE JUDGE OF THE DISTRICT PRESIDING. This is an action by the heirs at law of Marie Marguerite Trahan, deceased, to recover from the defendants, her succession, which the latter hold and claim under a will.

<p>Westhut Dist.</p> <p>APPEAL PROM THE COURT OP THE PIPTH JUDICIAL DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.</p> <p>This is an action for the right of way, or passage over the defendant’s land.</p> <p>The plaintiff alleges he is the owner of a plantation in the parish of St. Martin, fronting on a small bayou or coulée, opposite to a tract of land belonging to the defendant; that from the situation of their two plantations, he has no way to reach the public road, but by passing over the land of the defendant; and that for more than thirty years previous to instituting this suit, he and those under whom he claims have been in the habit of passing through the land now occupied by the defendant, and of crossing the bayou opposite his land, and of passing near his house, so as to reach the public road in the shortest route ; that in consequence of the uninterrupted use of said passage for more than thirty years, it has become a legal servitude, attached to his (petitioner’s) land.</p> <p>He further alleges, that the defendant, regardless of the right acquired by the petitioner, and contrary to law, has stopped the said passage, by putting a fence across it, so as to deprive him of any further use thereof, to his damage, five hundred dollars. He further alleges, that he has acquired the right to the use of this passage by the longest prescription, and that the defendant is now barred by prescription from setting up any claim for indemnity.</p> <p>He prays that the defendant be ordered to open said passage, and take away the fence which he has put across it, and that he be quieted in the use and enjoyment of it, as a servitude attached to his land, and that in default of the defendant complying with this order, then a writ of distringas to issue, to compel a compliance.</p> <p>The defendant pleaded a general denial, and denies that the plaintiff’s land is so situated as to entitle him to a right of way over his land; that if it should be accorded to the plaintiff, he avers it should be over that part of it, where it will be least injurious to him; as it now is, it passes through the middle of his plantation, and near his dwelling house ; and he further avers, if such passage or right of way is accorded, that he is entitled to an indemnity proportioned to the damages it will occasion him, which are at least five hundred dollars.</p> <p>The defendant avers that he purchased the land in question from Isaac L. Baker, ánd cites his heirs at law in warrauty.</p> <p>The administrator of Baker pleaded a general denial to the plaintiff’s petition, and denied his liability in warranty; but if liability in the latter case, he calls on Eugene Carlin, from whom he purchased, to defend his title.</p> <p>Carlin appeared, and denied the rights and claims set up in the petition, and also denied his liability in warranty to Baker’s estate.</p> <p>Upon these pleadings and issues the case proceeded to trial.</p> <p>The testimony and diagram show that the plaintiff’s and defendant’s plantations are situated opposite to each other, a small bayou called Petit Jinse running between them ; that there is a crossing of said bayou from plaintiff’s over to defendant’s plantation, which has existed for forty years; and that the residents on plaintiff’s land had been in the constant habit of passing, over about eight or ten arpents of defendant’s land, to reach, the public road in the shortest route, and to avoid a small coulée or marshy drain; that the land of the plaintiff is situated back from the public road, and surrounded by marshes and trembling prairies, so as to render it necessary to cross the bayou over on the defendant’s land, and reach the public road. This bayou can be crossed above defendant’s land, with some difficulty; but then the coulée intervened, and it was necessary to cross it, which could not be done in rainy weather, as it became, in the language of tbe witness, a grand bayou.</p> <p>The defendant brad, within a few years, made a fence across the passage or road, and prevented the use of it.</p> <p>Upon the whole evidence of the case, the district judge was of opinion the plaintiff had a right to recover, as he had alleged, and that he had clearly established a legal servitude.</p> <p>Judgment was rendered, quieting the plaintiff, in the enjoyment of his right of passage by him claimed; and that the defendant should, within thirty days, pull down his fence and open the passage, and that in default thereof, a distringas should issue, etc.</p> <p>From this judgment the defendant appealed.</p> <p>1. The plaintiff claims a right of passage by virtue of the law and not in consequence of title. It is a legal servitude he claims, and which the law gives to him; because the evidence shows the situation of his land, and establishes clearly his right to demand a passage over his neighbor’s estate. Louisiana Code, 670, 695, 698, 717-18. Nouveau Desgodets, vol. 1, page 236.</p> <p>2. The right of passage here claimed, has been enjoyed for more than thirty years, and no indemnity has ever been demanded. The defendant’s right to indemnification is gone; it is now too late to set up this right, and claim it of the plaintiff. His right to claim an indemnity is prescribed, and the right of passage continues, and the way must remain open to the plaintiff’s use. Louisiana Code, 704. Nouveau Desgodets, vol. 1, page 238. Favard, verbo Servitudes Legales. Sirey, vol. 22, part 1, page 154.</p> <p>contended, that the plaintiff could not, under the circumstances of this case, demand the right of way over the defendant’s land, as a servitude. He claims it solely on the ground of prescriptive right; but it would be a violation of law, if the court were to decree it to him without any indemnification of the defendant.</p> <p>2. The right of way is an interrupted servitude, which grgt reqU}reg tiie act of man in order to be exercised. Interrupted servitudes consist of the rights of passage, drawing water, and the like. Louisiana Code, 723. Civil Code of 1808, page 138, article 51. Partida, 3, title 30, law 15. Merlin’s Reportoire, title Servitude, section 8.</p> <p>3. By the laws of Louisiana, continuous and apparent servitudes may be acquired by prescription; yet continuous non-apparent servitudes, and uninterrupted, can be acquired only by a title immemorial. Possession itself is not sufficient to establish them; Louisiana Code, article 761-2. Civil Code, page 138, article 53-4.</p> <p>4. But, it is contended, prescription in this case, began to run under the Spanish law, which must govern it. Under this law the same distinction subsists between continuous and interrupted servitudes, as under the Louisiana Code. Partida 3, title 31, law 15.</p> <p>5. The servitude now claimed, according to the testimony, only commenced about thirty-six or forty years ago. According to the Spanish law, the possessor and those under whom he holds, must have used the servitude, or exercised it-so long that the “ memory of man runneth not to the contrary.”</p> <p>6. It will be seen here, that the right of way is not even claimed by immemorial usage, but by the prescription of thirty years. Merlin repels, in the strongest manner, the idea that a prescriptive right to an interrupted servitude can be completed, so as to give a title under a law which declares such servitudes not prescriptible. Merlin’s Reportoire, mot Prescription, sections 1 and 3, JVos. 8 and 9.</p> <p>7. To entitle one to the right of way, he must have no way to the public road, but through the lands of his neighbor. He has no right, even then, to exact the right of passage from which of his neighbors he pleases; but it must be taken from the shortest distance, and fixed at the place the least injurious to the person on whose estate it is granted. La. Code, 695-6. Civil Code, 1808, page 136, articles 46, 47.</p> <p>8. The defendant is certainly entitled to indemnity for this right of way from somebody, and if not from the plaintiff, then from his (defendant’s) vendors in warranty.</p> <p>9. As to the amount of indemnity, it is fixed by the witnesses at five hundred dollars, taking into account the inconvenience and loss of the defendant; and this is the proper standard. Toullier says, the indemnity is to be regulated by the damage which the passage may occasion to him who is forced to give it, and not by the advantages which he to whom it is granted may be able to derive from it. 3 Toullier, -page 402, 403, JVo. 531.</p>

Western Dist. APPEAL PROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. MARY, THE JUDGE THEREOF PRESIDING. This is an action of reven dication and rescission of the sales of certain slaves, on account of fraud in the vendee. The plaintiffs are the children of Thomas Foster, deceased,, joined and assisted by their mother as tutrix, and her husband as co-tutor.

Western Dist. APPEAL PROM THE COURT OE PROBATES EOR THE PARISH OP ST. MARTIN. These cases arose on the tableau of distribution of the estate of Isaac L. Baker, deceased, filed by John Brownson, Esq., the administrator. The estate was administered as an insolvent one.

Westers- Dist. ADPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. MART, THE JUDGE OF THE SEVENTH PRESIDING. This suit commenced by injunction, to restrain the defendant from cutting timber on a tract of land, eighteen arpents front by forty in depth, on the bayou Vermilion, and which the plaintiff claims under a title translative of property, and by the prescription of ten, twenty and thirty years’ possession.

Western Dist. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING. This suit commenced by attachment.

Western Dist. !U?PEAL PROM T1IE COURT op the pipth judicial district por the PARISH OF ST. MARTIN, THE JUDGE OP THE SEVENTH PRESIDING. This suit is in the nature of an hypothecary action, to enforce a judicial mortgage against certain property in the possession of the defendant.

Western Dist. APPEAL FROM THE COURT OF TROBATES FOR THE PARISH OF ST. MARY. This is an action of partition, between the heirs at law and the representatives of the instituted heirs of Charles M. Thruston, deceased. The facts of this case were drawn, up, and agreed to by the counsel on both sides, and are included in the opinion of the court below.

WesternDist. APPEAL FROM THE COVET OF PROBATES FOE THE PARISH OF ST. MARY. This case commenced by an action of partition between the widow and other legatees of the late Joseph Theall, of the parish of St. Mary. See the case in 7 Louisiana Reports, 226. On the return of the case from the Supreme Court, in 1834, the mother of Joseph Theall, the testator, intervened and claimed her legitime of one fourth of all the property of her deceased son, as forced heir.

Western Dist. APPEAL PROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. MART, THE JUDGE OF TOE SEVENTH PRESIDING. This is an action of partition, in which the plaintiff sets up title to the greater part of a tract of land, in the possession, and claimed by the defendant, as administratrix of the estate of her deceased husband, Dr. John Towles.

Western Disx. APPEAL PROM THE PRORATE COURT FOR THE PARISH OF ST. MARY. This is an action of partition, and for the sequestration of a crop of sugar, in the possession of the defendants.

Eastern Dist. APPEAL EROM THE PAUISH OOTJRT POR THE PARISH AND CITT OP NEW-ORLEANS. This is an action to recover the net amount of sales of mules and horses belonging to the plaintiff, and sold by the defendant, on his order, and on his account. According to a ^-ei','er °f the defendant, annexed to the petition, the amount admitted to be due, and which is claimed in this suit, is eight hundred and ninety-four dollars.

easteen Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action on a promissory note of one thousand dollars, due for bricks, furnished by the plaintiff to the defendant, for the use and construction of a dwelling house, which the latter undertook by written contract to build for J. L. Florance. The note is signed by the defendant, and was protested the 24th June, 1834, for non-payment.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This suit is instituted on a promissory note of three thousand dollars, signed by the defendants, Aaron Baker and others, for part of the price of the steam-boat Scotland. The boat was attached by the plaintiffs, in this city, the residence of defendants being in Cincinnati.

EASTERN DlST. 'appeal from the parish court for the parish and city op NEW-ORLEANS. This is a case of insolvency. The ceding debtor is a resident of Mobile, in the state of Alabama, and was recently engaged in a large mercantile and exchange business there. Some time in the month of April, 1837, the. insolvent debtor left Mobile, and came to New-Orleans, as it is alleged, with a view to leave immediately for the North, and to defraud a portion of his creditors.

Basteen Dist. APPEAL FROM THE COURT OF THE FOURTn JUDICIAL DISTRICT, FOR THE PARISH OF IBERVÍLLE, THE JUDGE THEREOF PRESIDING. This is a case of injunction. Martha Hart obtained judgment against A. Fisk, for six thousand eight hundred and ninety-four dollars, with interest and mortgage on a plantation and slaves, then in his possession. Fisk took a suspensive appeal to the Supreme Court, and gave bond and security in the sum of twenty thousand dollars.

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE O'F THE SECOND PRESIDING. This is an injunction suit t.o stay the sheriff’s sale of certain property. The plaintiff in injunction was the attorney at law in defending a suit of A. G. Marionneaux vs. J. Roop, for the price of a house and lot. The plaintiff in that suit had judgment with a mortgage, and that the property in question be seized and sold.

Eastern Dist. This is an action against the endorser of two promissory notes. On the 30th January, 1835, F. A. Blanc, of New-Orleans, executed his 'two notes for seven hundred, dollars each, payable to A. Beauvais, or order, six months after date, and by him endorsed to S. W. Oakey & Co., the present plaintiffs. The notes were discounted in the bank of Louisiana, and at maturity protested for non-payment.

Eastern Dist. APPEAL FROM TIIE COURT OF THE FOUTH J UDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE THEREOF PRESIDING. This is a petitory action to recover a tract of land in the parish of West Baton Rouge, in the possession and claimed by the defendant as owner. See 10 Louisiana Reports, 520.

Eastemt Disr. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR TIIE PARISH OF EAST FELICIANA, THE JUDGE OF THE EIGHTH PRESIDING. This is an action by the holder against the maker and endorser of the following promissory note : “ CliNton, April 29th, 1836. “ $1500.

Eastern Dist. APPEAL PROM THE COURT OP PROBATES POR THE PARISH OP WEST PELICIANA. The plaintiffs in this case obtained a judgment of partition of the estates of Margaret Coleman and John Row, Senr., from which an appeal was taken and dismissed for irregularity in the proceedings. See 10, Louisiana Reports, 500.

<p>A slave, brought into the state of Ohio, whose constitution and laws forbid slavery and involuntary servitude, and placed on service by his owner, to an innkeeper, becomes free and emancipated by the operation of law.</p> <p>Every man is presumed to have consented to the necessary and legal consequences resulting from his removal to another state, under the operation of its laws.</p> <p>It is from the intention of the owner to remove and reside with his slave in a free state, that the emancipation results, immediately on such removal.</p> <p>a slave brought I?,1? th® state of Ohio, whose constitution _ and very amMnvo-t™jgUJnd p^ed 011 service by inn-keeper, be-emancipated 3by the operation of</p> <p>Every man is I^Tonsented t0 *e necessary and legal eonse-quenees, result-^ovaí aTa^tier state= nnder the operation ol its laws.</p> <p>It is from, the intention of the owner, to remove and reside with his slave in a free state, that the emancipation results, immediately on sueh removal.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR THE PARISH OF EAST FELICIANA, THE JUDGE OF THE EIGHTH PRESIDING. This is an action to compel the defendant to re-convey a tract of land, which the plaintiff alleges the former purchased for him at a sheriff’s sale, by his directions and as his agent; and that he took the title in his own name, which he refuses to transfer.

Eastern Dist. ATPEAL FROM THE COURT OP THE THIRD JUDICIAL DISTRICT, POR THE PARISH OF WEST FELICIANA, THE JUDGE THEREOF PRESIDING. This is an action against the surety in a bond, given for the faithful administration of property inherited by minors.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR TIIE PARISH OF WASHINGTON, THE JUDGE OF THE DISTRICT PRESIDING. The appeal, in this case, was granted the 25th of October, 1837, returnable the third Monday of January following. The record was filed the 15th of January, being the return day.

<p>After a partition by licitation, among heirs of full age, ordered by the Probate Court, in which one of them purchased in the land to be' divided, and gave bis notes for the price: Held, in a petitory action by some of the heirs to recover their share in this land, on the ground of irregularity and nullity in the proceedings, that any acts doné by them subsequently, amounting to a ratification of the sale, precludes; a recovery, even without inquiring into the nullities alleged.</p> <p>After a pavti-among heirs'of íiy1 the’ Prolate Court, in which chased 'hT'fihe' land to be divided, and gave his notes for the price: Held, in a petitory action by some of the heirs, to recover their share in tliis land, on the ground of irregularity and nullity in the proceedings, that any acts done by them subsequently, amounting to a ratification of the sale, precludes a recovery without inquiring; into the nullities al-lesed-</p>

Eastern Dist. ATPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OP WEST FELICIANA, TIIE JUDGE OP THE EIGHTH PRESIDING. This is a petitory action, instituted with a view to recover a small partition of land, and to fix the limits between the premises of plaintiff and defendant.

Eastern Dist. APTBAL FROM THE COURT OF TIIE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. HELENA, THE JUDGE THEREOF PRESIDING. This is an action to enforce a mortgage against a tract of land in the possession of tbe defendant as third possessor. The latter holds tbe premises in virtue of a sheriff’s sale. On tbe trial, the defendant offered in evidence, the record of the proceedings and judgment under which the land was sold, in support of his title.

Eastern Dtst. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF WEST FELICIANA, THE LATE JUDGE THEREOF PRESIDING.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OP EAST FELICIANA, THE JUDGE THEREOF PRESIDING.</p> <p>This is a revocatory action, instituted by the syndic of the creditors of John Bostwick, to annul a mortgage and act of pledge of sundry pieces of real property in the parish of East Feliciana, and two promissory notes for two thousand dollars each, made in favor of Stephen Yarborough, a creditor of Bostwick. The acts were passed the 27th February, 1832, and the 30th April, 1833, purporting to convey this property, and pledge the notes to Yarborough for the purpose of indemnifying him against any damages he might sustain for having signed and given to said Bostwick a letter of credit to Reynolds, Byrne & Co. of New-Orleans, for five thousand dollars.</p> <p>The plaintiff alleges and shows, that on the 5th of. November, 1833, Bostwick confessed judgment in favor of Yarborough, based on this letter of credit, for the sum of five thousand five hundred dollars, which ordered the mortgaged and pledged property to be seized and sold in satisfaction thereof. In December, Yarborough took out execution on this judgment, and had it levied on all the mortgaged and pledged property, and on the following January, 1834, sold at private sale by notarial act to M. & E. Boatner, the judgment, execution and all the property thus pledged and mortgaged, for the sum of five thousand one hundred and sixty dollars ; and further, on the 3d February, 1834, the whole of this property was bid off at the sheriff’s sale under Yarbo-rough’s seizure, by the said M. & E. Boatner, for the sum of five thousand six hundred and ten dollars.</p> <p>The plaintiff alleges that the whole of these proceedings and sales are null and void, and in fraud of the creditors of John Bostwick. He therefore prays, that Yarborough and M. & E. Boatner be cited, and made parties to this suit, and that he have judgment, annulling said mortgage, pledge, sales and transfers of said property, and that it be recovered and returned to the mass for the benefit of the creditors of BoStWick.</p> <p>The defendants denied that the plaintiff was syndic as he alleges, or that any amicable demand was ever made on them.</p> <p>They further aver, that the property so pledged, mortgaged and sold, was the sole and exclusive property of Susan Bostwick, a married woman, separated in property from her husband, John Bostwick, by a judgment of court.</p> <p>The defendants further pleaded the prescription of one year, against the right of the plaintiff to attack the judgment of separation of property obtained by Susan Bostwick against her husband, in 1822 ; and also the sales made under it, to her, of the husband’s property, and particularly the mortgage given on this same property by Susan Bostwick and John Bostwick to Stephen Yarborough.</p> <p>Upon these pleadings and issues the parties went to trial before the court and a jury.</p> <p>p: Much testimony was offered, on the part of the plaintiff, to show, that in reality the property mortgaged and finally sold to the defendants, was the property of John Bostwick, the ceding debtor, and that these sales and conveyances were fraudulent and collusive, and gave an undue preference to Yarborough over other creditors.</p> <p>Bostwick sued his creditors and made a surrender of his property on the 7th February, 1834, and this suit was commenced by the syndic, the 7th of April following.</p> <p>The defendants offered evidence to show, that the property in question, belonged to Susan Bostwick, the wife, and produced in evidence, her judgment of separation obtained in 1822, against her husband ; and an execution issued thereon in 1828, which was levied on some property of the husband, and which she purchased in for her own benefit, including that now sued for.</p> <p>After the defendants had closed their testimony, the plaintiff offered rebutting evidence, to show that John Bostwick continued in the possession and administered all the property of himself and wife, at their residence' in Clinton, and for the further purpose of 'showing fraud and collusion in the judgment of separation between the husband an^ w^e- The defendants objected to the introduction of this testimony.</p> <p>1. That it- would be allowing the party to attack the judgment collaterally.</p> <p>2. That if admissible, it should have been introduced before the examination of his testimony in chief.</p> <p>1 3. That the plaintiff is barred by prescription.</p> <p>The district judge overruled all these objections and permitted the evidence to be given.</p> <p>In relation to prescription, the judge decided, that this suit having been commenced within a year from the appointment of the syndic, it was in time, Louisiana Code, 1989, 1984. 4 Louisiana Reports, 257.</p> <p>On the second point the decision was, that as the plaintiff was not allowed to file a replication to the defendant’s aver-ments setting up this judgment, they must be considered as denied, and the plaintiff allowed to. show that they are unfounded in law or fact. Code of Practice, 329. 2 Louisiana Reports, 137. 4 Ibid., 335.</p> <p>On the first point, the opinion of the judge was, that as the judgment was set up in the answer in support of the defendant’s claim to the property, on the ground that it .originally belonged to the wife of Bostwick, in virtue of this judgment of separation, evidence was admissible to contest the rights claimed under it.</p> <p>Upon the whole evidence the jury returned a verdict for the plaintiff; judgment was rendered on this verdict, annulling the mortgage and pledge, and also the judgment of Yarborough vs. Bostwick, and condemning the defendants to restore the property to the syndic. The defendants' appealed.</p> <p>1. The mortgage and judgment confessed by Bostwick, was for no sum actually due. The mortgage was given as ;an indemnity for the letter of credit to Reynolds, Byrne &' Co., and there is no evidence that it was actually paid by Yarborough; there was, therefore, no specific sum or obligation due. Louisiana Code, 3273, 3277, 3249.</p> <p>2. The judgment was illegal, because it was confessed by the insolvent within three months of his failure, and the cause of action set forth in Yarborough’s petition, did not entitle him to any thing more than a judgment of indemnity, as guarantor in the letter of credit. Instead of that, he had judgment for a sum of money actually due. 2 Moreau?s Digest, 431. Louisiana Code, 3021, 3026, 1964.</p> <p>3. The sale was illegal, because there was no appraisement of the property, and no order of court to sell the notes iii pledge. Louisiana Code, 3138. 9 Louisiana Reports, 541.</p> <p>4. The judgment of separation between Bostwick and wife, is null, as it was never executed according to law, nor . published; and because it is fraudulent and collusive, having •been rendered without evidence of the wife’s claim, other .than that furnished by the husband. Louisiana Code, 2401, 2402-3, and 8. 1 Martin, N. iS'., 1. 8 Ibid., 459. 13 Toullier, page 104, No.-69, page 107, No. 73. Lucket vs. Ducket, 11 Louisiana Reports, ante, 241.</p> <p>5. The judgment of the wife against her husband, as to third persons, may be attacked for fraud and collusion, as not binding on creditors of the husband unless shown to have been fairly obtained. 2 Louisiana Reports, 137. 4 Ibid., 257, 335, 422. 13 Toullier, No. 95.</p> <p>1. The court erred, in admitting testimony to attack the judgment of Susan Bostwick, who was not a party to this action. The plaintiff should have resorted to a direct action, to annul the judgment. 1 Martin, N. 568. 3 Ibid., 336. 5 Ibid., 361. 6 Ibid., 137. 9 Louisiana Reports, 339.</p> <p>2. If this testimony was admissible, to support any substantial allegation in the petition, the plaintiff should have offered it in the opening of his case.</p> <p>3. The prescription was pleaded; and the plaintiff’s action against the judgment of separation of Susan Bostwick, and to annul the mortgage to Yarborough, was prescribed, by the lapse of one year from the date of those acts. Louisiana Code, 1988-9. 8 Martin, N. S., 674..</p> <p>4. The creditors of Bostwick failed to make opposition to these proceedings within ten days, in which all these claims were settled in the concurso, and the whole proceedings were homologated, by which they became res judicata, and cannot now be disturbed. After the lapse of ten days from the close of the proceedings before the notary, the creditors cannot examine into the transactions of the insolvent, either before or in the proceedings before the notary. 2 Martin, N. S., 57. 4 Ibid., 601, 620. 8 Ibid., 674. 2 Louisiana Reports, 503. Session Acts of 1817, section 17 to 24. 8 Martin, 67. 2 Louisiana Reports, 357, 503.</p> <p>5. The syndic of Bostwick’s creditors cannot maintain this action, because, by the homologation of the proceedings they admit the transactions, sales, and mortgages of Bostwick were fair and valid, and that his surrender was fairly made. All these are admitted, as no opposition was made, and a judicial admission bars this action. Session Act of 20th February, 1817, sections 1, 2, 3, 4 and 5.</p> <p>• 6. The creditors cannot recover, because only the property of the insolvent debtor mentioned in this schedule, is fully vested in his creditors, and which, the syndic appointed to represent them, shall take into his possession, and administer. He is only entitled to recover and to administer this, which is all that is included in the surrender. Act of 1817, sections 3, 18 and 30. Act of 1826, section 2. 3 Louisiana Reports, 462. 4 Ibid., 142.</p> <p>7. The creditors cannot avoid forced sales, such as that of Yarborough’s, when the right is not ceded and accepted; they can only attack fraudulent contracts of the insolvent. Louisiana Code, 1965.</p> <p>8. But in this case, the property sought to be recovered, belonged to Susan Bostwick, until sold by the sheriff in Yarborough’s suit, and the syndic has no right to sue for the property of third persons. If the sale or mortgage by Susan Bostwick was fraudulent, it should have been attacked, and not the right of purchasers. Louisiana Code, 1964-5-6. 3 Martin, N. S., 338. 5 Ibid., 633. 6 Ibid., 139. 4 Louisiana Reports, 316. 9 Ibid., 385.</p> <p>9. The sheriff’s deed and return upon the execution and judgment, furnish prima facia evidence of a valid alienation, and he who attacks it, must show that the forms of law have not been complied with. 8 Louisiana Reports, 321.</p> <p>10. But if this sale was informal, the creditors of John Bostwick cannot attack it and have it annulled. The creditors only of Susan Bostwick can question its validity. Louisiana Code, 1965. 2 Louisiana Reports, 70. Napoleon Code, article 225.</p> <p>11. The syndic cannot attack the mortgage to Yarborough, so far as J. Bostwick is a party to the act, because it does not appear that a portion of J. Bostwick’s creditors had judgments obtained more than a year from the date of the act, without, bringing an action to avoid it; and further, it does not appear that another portion were creditors at the time of surrender, and were not creditors at the date of the mortgage ; and finally, more than one year elapsed from the date of the mortgage to the appointment of the syndic, or the institution of this suit. Louisiana Code, 1988-9. 8 Martin, N. 674. 3 Louisiana Reports, 329.</p> <p>12. This is an action of rescission, not of nullity, and an injury must be shown; proof of fraud is not sufficient. Louisiana Code, 1864, 2572, 1973. 2 Martin, N. S., 75. 5 Louisiana Reports, 382.</p>

Eastern Dist. APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR THE PARISH OP EAST FELICIANA, THE JUDGE OF THE-EIGHTH PRESIDING. This case commenced by an injunction.

.EASTERN DrS-T. ATPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT FOR TIIE PARISH OF EAST FELICIANA, THE JUDGE OF THE EIGHTH PRESIDING. This case commenced by injunction. George Seeber, one of the defendants, being a mortgage creditor of John Bost-wick, obtained an order of seizure and sale, against the mortgaged property, in the hands of M. and E. Boatner, as third possessors.

EASTERN DlST* AEFEAL EROM THE COURT OF TIIE FOURTH JUDICIAL DISTRICT FOR THE PARISH OF IBERVILLE, TIIE JUDGE OF TIIE DISTRICT PRESIDING. This is an action on two promissory notes, one for five thousand dollars, and the other for four thousand dollars, drawn by the defendant, and dated the 27th of February, 1833, payable one year after date, to the order of Martin Duralde, and endorsed in blank.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF POINT COUPEE, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action to recover the sum of four thousand five ■hundred dollars, which the plaintiff had advanced to the defendant, William Taylor, on a contract of sale of a plantation and slaves, agreed upon, but never definitively executed. The defendant avers that this sum is forfeited to his use and benefit, in consequence of the plaintiff’s failing to comply with his part of the contract, according to the stipulations in the agreement.</p> <p>On the trial, the written agreement between the parties, in pursuance of which the contract of sale was to be completed, was produced in evidence and relied on by the defendant, as working the forfeiture of the sum claimed. The judge charged the jury at length on the nature and effect of the, agreement, which was excepted to by the plaintiff’s counsel.</p> <p>The charge of the judge, and agreement, and all the material facts of the case are fully set out in the opinion of the court which follows.</p> <p>There was a verdict and judgment for the defendant, from which the plaintiff'appealed.</p> <p>relied on the following points to reverse the judgment below :</p> <p>1. The plaintiff was not bound to make a tender of the price, because the mortgages existing on the property had not been erased.</p> <p>2. If it was impossible for the defendant to make a good and valid title to the property on the day fixed by the agreement, the plaintiff was discharged from the obligation of tendering the price ; and the record shows clearly that such impossibilities did exist. Woodruff vs. Wederstrandt. 4 Louisiana Reports, 311.</p> <p>3'. If the defendant intended to retain the money advanced by the plaintiff, on the price of the property, it was his duty to put the plaintiff in delay, by calling on him to complete the sale, and showing his ability to make a valid and unincumbered title to the property.</p> <p>4. The court below charged the jury erroneously, that a tender of the money and notes by the plaintiff, was, under any circumstances, a pre-requisite to establish a right to the money advanced.</p> <p>This is an action to recover back a sum of money forfeited .to the defendant, by the non-compliance of the plaintiff with his agreement to purchase certain lands and slaves. Whatever may be the question as to the completion of the contract, he who presents himself in a court of justice, must,first comply with his engagements, if he would be listened to and .expect relief. 1 Louisiana Code, article 1906-7. 2 Trophlong, .vente, 76, in notes.</p> <p>2. No tender or offer to pay the price was ever made by plaintiff. He neither appeared himself or by an agent, at the time agreed on to complete the contract; therefore he is in default. The defendant was not bound to deliver if the purchaser did not appear to pay the price ; for a delivery of a title is a delivery of the thing sold. Louisiana Code, articles 2455, 2463. 1 Trophlong, vente, page 471, 482-3, and notes.</p> <p>3. If the sum received by the defendant was earnest money, it was forfeited. The damages consequent upon a non-compliance, having been fixed by the parties in the written agreement, the court cannot alter them. Louisiana Code, 243S, 1928. 1 Trophlong, vente, 205, JYb. 135. 6 Toullier, 287, 288, Jfo. 275.</p> <p>4. All the mortgages and incumbrances on the property were well known to the plaintiff before he entered into the agreement. These the defendant were not bound to raise before the contract of > sale was completed, and the purchase money paid or tendered in payment.</p> <p>5. The finding of the jury is conclusive in favor of the defendant, in questions of this kind. But the equity of the case is also strongly in his favor; when the value of the property is diminished since the payment ought to have been made, the purchaser must make good the deficiency. Louisiana Code, article 2543.</p> <p>The defendant having failed to have the mortgages released, which were still existing on the property intended to be conveyed under the agreement, showed that he was unable to make a good title. The plaintiff was thereby exonerated from the obligation of payment, or even tendering the money in payment. 1 Peters’s Reports, 462, 464-5.</p> <p>2. The defendant, who is the seller, being unable to make a good and unincumbered title to the premises, the contract is at an end, by the fault of the defendant and he is not entitled to any forfeit,</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF THE SECOND PRESIDING. This is an action for a separation -of property between husband and wife.

Eastern Dist. APPEAL PROM THE COURT OP THE POURTH JUDICIAL DISTRICT, POR THI? PARISH OP IBERVILLE, THE JUDGE THEREOF PRESIDING. This is a personal action, instituted the 4th of May, 1885,. by attachment, on the following instrument of writing. The suit is against Nancy Scales, as the sole heir and the mother of Nathaniel Scales, jr., deceased, residing in North Carolina, Service of process was acknowledged by her attorney, who-was garnisheed the 23d of June, 1835.

Easteiw Dist. APPEAL EROH TIIE COURT OE THE FOURTH JUDICIAL DISTRICT, EOK THE PARISH OE IBERVILLE, THE JUDGE OE THE SECOND PRESIDING. This is an action against the endorsers on two promissory notes, drawn and dated at Plaquemine, (La.) the 18th May, 1833, and payable at the Bank of Louisiana, in New-Orleans,, the 4th May, 1834. They were protested for non-payment,, and notice put in the post office in New-Orleans, and directed to the defendants at Plaquemine.

Eastern Dist. APPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT, POR THE PARISH OP WEST FELICIANA, THE JUDGE OP THE EIGHTH PRESIDING, This is an appeal from a judgment placing Messrs. Reynolds, Byrne & Co. as privileged and mortgaged creditors of the insolvent, on an amended tableau of distribution, filed by the syndic.

Easter» Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR TÍIE .’ PARISH OF EAST FELICIANA, THE JUDGE THEREOF PRESIDING. untiff sues, This is an action in which the plaintiff sues, as adminis-tratrix of her deceased husband, .to recover certain property,consisting of lands, slaves, and stock, which she alleges the defendant holds under a simulated sale from her late husband.

Eastetís' Dist. APPEAL FROM TIIE COURT OF THE FIRST JUDICIAL DISTRICT, This is an action to recover the sum of one thousand six hundred and twenty-three dollars, with interest and costs, which the plaintiffs allege they paid in error, as acceptors of a bill of exchange, to the defendant.

Eastern: Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.- ' This is an attachment suit, by the widow of a deceased partner, residing in New-Orleans, against certain property -here, alleged to-belong to the other partner, who resides at Vicksburg, Mississippi, where the partnership was carried on, .-to secure the payment of a large sum, stated to be due as the plaintiff’s share of the partnership.

Eastern Dist.' APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR THE PARISH OF EAST FELICIANA, THE LATE JUDGE OF THE DISTRICT PRESIDING. This suit is in the'nature of a petitory action, in which the plaintiff claims title to six hundred and fourteen acres of land, which, he alleges, the defendant has entered upon, taken possession of, and is cultivating and raising crops thereon.

Eastern Dist. APPEAL FROM TIIE COURT OP THE POURTH JUDICIAL DISTRICT, POR THE PARISH OF IBERVILLE, THE JUDGE THEREOF PRESIDING.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of revendieation, in the petitory form, in which the plaintiffs claim title to a house and lot, in the possession of tb.e defendant, as the nearest relations, and as heirs of one Pierre Augustin Meuillon, who died in Louisians about the year 1810. [This case is now reported out of its regular order.] See the same case on the merits, in 10 Louisiana Reports, 60.

“ Supreme Court of the State of Louisiana. An Ephraim Avery gospelizer indeed, who wished to render permanent, by synod-ratification, an evangelical call, which, through new-born zeal in the service of Calvin’s sect, in dereliction of Westley’s fold, had been provisionally conferred upon him, in the synod’s recess, for probation, by a nominator for synod-confirmation of candidates for holy orders and holy offices; such a gospelizer, indeed, might well enough have made that…