Volume 12 — Louisiana Reports

<p>A confirmation of a land claim by the government of the United States, amounts to no more than a relinquishment of all its rights to the land; it has no effect against third persons.</p> <p>According to the usages of the Spanish government of Louisiana, a double concession of land could be granted only in the rear of the front tract.</p> <p>Where parties claiming to be owners of a tract of land, prove an application by each to a Spanish Commandant for a grant of the premises, and a confirmation to each by the United States, but no complete title or grant to either from the Spanish government, and the first applicant is not shown to have ever been in possession, but the last is proved to have possessed and cultivated the premises for a number of years, the claim of the latter must prevail.</p> <p>Property in real estate is acquired by public, continuous possession, under the title of owner, for thirty years.</p>

<p>Eastern Dist.</p> <p>APPEAL PROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF "WEST BATON ROUGE, THE JUDGE THEREOF PRESIDING.</p> <p>So, a debtor is presumed to have greater interest in discharging a mortgage than a chirographery debt, when both are equally due and payable; and imputation of payment must be made accordingly.</p> <p>This is an action to recover two slaves, which the defendants had convej^ed to the plaintiffs by a vente U réméré.</p> <p>The plaintiffs show, that on the 11th of April, 1833, Blanchard and wife, by notarial act, conveyed to them two slaves, Bob and Lindor, for and in consideration of the sum of one thousand three hundred and twenty dollars, which they acknowledged they then owed to the plaintiffs, and three hundred dollars for money paid C. Allain, on their account; that by the terms and conditions of the sale, if Blanchard and wife should pay the said sum of one thousand three hundred and twenty dollars in all the month of February following, to the plaintiffs, then the slaves were to be retroceded ; otherwise the sale was to become absolute. The payment was never made, and in April, 1835, the plaintiffs, through a notary public, made a legal demand of payment on the defendants, which was not complied with on their part, and a protest thereof duty made. The petitioners pray that said slaves be decreed to belong to them and given up accordingly, and in the meantime that they be sequestered.</p> <p>The defendant, J. Blanchard, denied the plaintiff’s capacity to sue on the act of sale, and averred that said pretended sale was a nullity, because the individual partner who signed for the firm, had no legal authority to do so. He further avers, that in the month of February, 1834, during the time he had to pay in, he did pay a greater sum to the plaintiffs, viz : one thousand nine hundred dollars, which ought to have been imputed to this debt.</p> <p>The wife pleaded separately, denied the plaintiffs’ capacity to sue, and pleaded a general denial; she further states she never received any consideration for the slaves mentioned ; that she was not indebted to the plaintiffs, and if such debt was due to them it was her husband’s, and for which she received no benefit or advantage, and that she signed the act of sale only as surety of her husband, which is not legal and binding. She further states these slaves belong to her, and prays that the plaintiff’s suit be dismissed, the act of sale cancelled, and that she be quieted in the possession of the slaves.</p> <p>Upon these pleadings and issues the case was tried before the court.</p> <p>The plaintiffs produced the public act of sale, and other evidences of their claim. The defendants introduced evidence to show that the slaves were the separate property of the wife ; and further showed, that in the month of February, 1834, before the period of payment of the debt, for which the slaves were conditionally sold, was final, the defendants sent an agent to get a receipt from the plaintiffs for the proceeds of twenty-five hogsheads of sugar, amounting to one thousand nine hundred dollars, who was told that it did not extinguish a debt Blanchard then owed them on an account, being upwards of three thousand dollars.</p> <p>The district judge was of opinion, the plaintiffs could not recover and dismissed the suit, reserving to them whatever rights they may have on their accounts. From this judgment they appealed.</p> <p>contended, that the sale was bond, fide; a vente U réméré with the power to redeem, and it was clear the defendants never availed themselves of their right of redemption.</p> <p>2. It is not proved that the property sold was the separate property of the wife ; nor does it appear that the price was paid in a debt due by the husband.</p> <p>3. The plaintiffs having exhibited an authentic act of sale, it is incumbent on the defendant to make out a clear case to exonerate themselves from the liabilities of their contract.</p> <p>insisted, that the property in the slaves, belonged separately to the wife, and the debt,, to secure the payment of which, being due by the husband alone, the contract is not binding on her. The form of the contract does not change her liability. 4 Martin, N. S., 388. 2 Ibid., 39. 5 Ibid., 431. 7 Ibid., 252.</p> <p>2. The evidence shows payment to a sufficient amount to extinguish the debt, and it ought to be so imputed, as this-was the most onerous debt. 6 Martin, N. S., 28. 3 Ibid., 483. 4 Ibid., 79.</p> <p>3. The exceptions to the capacity of the plaintiffs to sue, should have been sustained. There is no evidence on record to prove the capacity in which they do sue, and a special' denial is pleaded.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE EJGHTII JUDICIAL DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING. This is an action for the balance ,of an account, for advances, commissions, acceptances, and furnishing supplies to the defendant by the plaintiff, as a commission merchant.

<p>Whero property has been seized under a fi■ fa., before the return day, the sheriff may retain the writ, and sell the property after the time fixed for its return.</p> <p>To prevent the sacrifice of debts seized under a fi. fa., the parties to the execution agreed that the sheriff should suspend the sale and retain the writ after the return day, authorizing an agent to proceed to collect the debts. Other creditors of defendants in execution, subsequently to this agreement, levied a jd.fa. on the same debts in the hands of the sheriff, and it was agreed between them and the plaintiff in the original execution, that the debts should be sold under the first writ, “ the proceeds of the sale to be held by the sheriff, subject to the orders of the proper court.” In an action to determine which of the seizing creditors was entitled to the proceeds; Held, that no bad faith being imputed to the parties, they had a right to suspend the sale ; that the debts never ceased to be under the control of the sheriff; that having permitted the sale to be made under the first execution, the creditors in the second execution cannot attach its legality; and that the creditor who first seized is entitled to a preference on the proceeds of the sale. C. P. 722.</p> <p>Notice to the debtors is not required where debts or credits have been seized under a fi. fa.; such notice is only necessary where a debt or credit has been transferred or assigned. The seizure of a debt does not transfer the property in it to the seizing creditor; it gives him only a right to be paid out of its proceeds when sold, until which time the defendant is not divested of his title.</p>

EASTERN DlS'JV 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 on a promissory note for five hundred dollars, signed by the defendant.

<p>Eastern Dist.</p> <p>APPEAL Prom Pete court of the third judicial DISTRICT PoA Tflfi PARISH OF EAST FELICIANA, TIIE JUDGE OF TIIE EIGHTH PRESIDING.</p> <p>This is a suit instituted by the holder of a promissory note, signed by the defendant, and endorsed in blank by the payee.</p> <p>The defendant pleaded a general denial, and expressly denied his signature to the note sued on.</p> <p>On. the trial, witnesses were called to prove the signature. The defendant’s counsel prayed the court to charge the jury, “ that as no proof of title or ownership was made to the note, the plaintiff could not recover and a bill of exceptions was taken to the refusal of the court to charge as requested. There was a verdict and judgment for the plaintiff, from which the defendant appealed.</p>

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR TIIE PARISH OF IBERVILLE. This suit was instituted in the Court of Probates, in the’ parish of Iberville, against the succession of Julia Maddox, to recover the amount of a promissory note, purporting to have been signed by her and her husband jointly, in their life times, and made payable to the plaintiff. The facts of the case are fully set out in the opinion of the court, which follows.

Eastern Dist. ATTEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This case commenced by attachment. The plaintiff claims .a debt of seven hundred and thirty dollars and seventy-ñve cents, as due, and owing to him by one Noah Mason, who, he alleges, has absconded. He prays for an attachment and judgment, and that William Mack be summoned as a garnishee, to answer interrogatories touching funds and effects of the defendant, in his hands.

<p>Appeal from the District Court of St. Landry, Boyce, J.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF POINT COUPEE.</p> <p>This is an action instituted by Jean B. Tournoir, the ejecutor and universal legatee of his brother, Joseph Tour-noir, deceased, against the defendants, who are collateral relations of the testator, to be quieted and confirmed in his possession and title to the estate of his brother, under his last will and testament.</p> <p>The testator made two wills. In the last one, under private signature, dated the 6th March, 1836, he constituted the plaintiff his executor, and made him his instituted heir and universal legatee. This will was duly admitted to probate and ordered to be executed the 26th of March following, and the plaintiff took possession of the entire estate under it.</p> <p>Another will was found, dated the' 17th June, 1831, made in the nuncupative form by notarial act, in which the testator bequeathed a legacy consisting of a tract of land, six slaves and four thousand dollars in money, to one Fanny Richer, f. w. c., and the balance of his.property he gave to his brothers, nephews and nieces, to be divided equally among them, according to law.</p> <p>The plaintiff alleges that the first will is revoked by the provisions and dispositions contained in the last one, and prays that it be declared null, and that he be quieted in the enjoyment and possession of all his deceased brother’s estate.</p> <p>M. Tournoir, one of the brothers disclaimed all right to ' any part of the estate,- and if he has any he relinquishes it to the plaintiff. The defendants, being the nephews and nieces of the deceased, averred that the last will was null and void, on several grounds ; the last of which is, that the legacy to Fanny Richér, is a substitution, etc.</p> <p>She intervened, and claimed the legacy from the executor, alleging, that it was not revoked by the second, or last will.</p> <p>The defendants interrogated the plaintiff concerning this legacy, who'replied, that he was charged by the testator to convey and deliver the legacy immediately after his death, .to Fanny Richér.</p> <p>The judge of probates was clearly of opinion, from all the evidence, that the testator was of sound mind when he made his last will, and was not operated upon by any undue influence. He was further of opinion there was no substitution contained in the will, and that both wills were valid and must be executed, tie ordered the legacy to be paid to Fanny Richér, and that the balance of the property be equally divided among the legitimate heirs, after paying the debts, and giving the share of M. Tournoir, who renounced, to the plaintiff. The latter appealed.</p> <p>The verbal directions of the testator to the plaintiff, in favor of Fanny Richér, to pay her the legacy, do not contain a prohibited substitution, and do not vitiate the will. The evidence of these directions was drawn from the plaintiff by interrogatories; and on the question, whether under such circumstances the instituted heir is bound to answer such interrogatories, the elaborate argument of Merlin is referred to. Merlin’s Questions du Droit, verbo substitution, fidei commissaire, section 14.</p> <p>2. This bequest is clearly not a substitution. The code prohibits substitutions and fidei commissa, and explains the leaning, by adding, that .every disposition by which the legatee is charged to preserve for and return to a third person a part of an estate is null. Louisiana Code, 1507.</p> <p>3. This legacy is not to be preserved for or returned, but paid over to the legatee by the instituted heir. This was no substitution, but a naked trust allowed by law. 5 Marlin, N. S., 303. Merlin’s Questions du Droit, verbo substitution, Jidei commissaire, section 14.</p> <p>4. A testamentary disposition will not be annulled, unless it clearly presents a substitution and cannot be sustained on any other ground. 7 Martin, N. S., 414. 4 Ibid., 46. 4 Louisiana Reports, 502. 6 Ibid., 246. 2 Delvincourt 103, and notes, page 399. 5 Toullier 19, 23, 32. Merlin, Ibid., section 13 and 14.</p> <p>5. Hence, it follows, in this case, that if the directions of the testator in favor of Fanny Richér, had been inserted in the testament, they would have been perfectly valid ; and they are not the less so because the testator chose to confide their execution to another person. Mere simulation is no ground to annul an act if it is legal in itself. Merlin’s Questions du Droit, Ibid. 9 Toullier, No. 160, 55.</p> <p>1. No judgment could be rendered in this case in favor of Fanny Richér; and there is error apparent, as no answer was filed to her petition and no default taken. Louisiana ■Code, 1468. 6 Martin, M. S., 450.</p> <p>2. The bequest to J. B. Tournoir was a disguised donation, which is reprobated by law. Louisiana Code, 1507. Code Mapolean, 896. 5 Toullier, page 19 to 24.</p> <p>3. The will of 1836, is null on many grounds, and because it was not dictated by the testator. It cannot stand with the first. It should be annulled and the case remanded to settle the questions growing out of the first will of 1831, in due course of law.</p>

<p>Where slaves have been seized under and the sheriff, with the consent of the plaintiff in execution, leaves them with the debtor until the day of sale, they will be considered as in the legal custody of the sheriff; and one proved to have aided tho debtor in removing them beyond the limits of the state, with a view to defraud his creditors, will be responsible to the latter to the extent of the injury they may sustain in consequence, and the full value of the slaves will be the measure of damages, if the debt amounts to so much. C. C. 2294, 2295, 2304. Testimony that will satisfy a jury of the guilt of the defendant is sufficient to maintain the action ; and every fact proved, calculated to produce this conviction, should be considered, in coming to a conclusion as to his knowledge of tho fraud.</p> <p>Every man is responsible for injury done to another, though occasioned by negligence or imprudence. C. C. 2295.</p> <p>An action may be maintained by a creditor against a third person for the injury done to him by the latter, in aiding his debtor to remove his property beyond the limits of the state, though a suit be pending, by the creditors against the debtor, in the country to which the property was removed, for the purpose of subjecting it to the payment of the debt. But the defendant, on proving that any thing has been made in the action against the debtor, will be entitled to have the amount deducted from the sum for which he would otherwise be liable.</p>

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF IBERVILLE. This is an action by the heirs at law of Jean Laurent Segur, deceased, against Achibé Segur, his universal legatee, to annul and set aside the will on various grounds, and to recover the succession property of the deceased.

<p>Appeal from the District Court of St. Landry, Boyce, J.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF IBERVILLE;</p> <p>This is an action instituted in the Court of Probates by the heirs of Charles Mayer, deceased, to recover the sum of two thousand fivé hundred dollars from the succession of Fran-qoís Neraut, deceased, being for the price of a tract of land, originally purchased from the ancestor of the plaintiffs.</p> <p>The administrator of Neraut’s succession, resisted payment on the ground of eviction by another purchaser. The material facts upon which the case turns, are stated in the opinion of this court, which follows.</p> <p>contended, that the sale of- the land in question, at the' probate sale of Mayer’s succession, was null. It was the property of another, viz: the government of the United States, and the sale of the property of another, is null. Civil Code of 1808, page 348, article 20. Louisiana Code, 2427.</p> <p>2. The obligation of Neraut grew out of this sale, he having bound himself as the surety of Blake, who purchased. The principal obligation is, therefore, null, and its accessories must fall with. it. The title to the land was never in Mayer, but in the government, from whom Orillion obtained it, and his vendee evicted the defendant.</p> <p>3. Neraut purchased the land at the sale of the syndics of Blake, and withheld the price, to protect himself against the payment, under the arrangement, to Mayer’s heirs, resulting from the probate sale. ' ^</p> <p>^ 4. Mayer’s heirs sold the land as the bond. fide property of their ancestor, having a good title. The evidence shows he had no title ; and none was acquired by the probate sale, or the sale by Blake’s syndics, at which the defendant purchased.</p> <p>5. The heirs of Mayer have acted in bad faith throughout. The sales being of property without title, it follows, that the obligation sued on, is without consideration, and void. The judgment should be reversed, and one entered for the defendant.</p>

<p>Where it is stipulated by the first clause of a marriage contract, that “ there shall be a community between the parties, which shall comprehend all their estate, real and personal, present and to come,” and by a subsequent one that, “ in case of the death of either the husband or wife, without having a child or children by the marriage, the amount of the property brought into the community by the one that shall die first, with the profits arising from the community, shall revert to the surviving husband, or wife, as the ease may be,” the words “property brought into the community,” used in the latter clause, will be construed with reference to the first, which establishes what property the community shall consist of; and in case of the death of the wife without issue of the marriage, the surviving husband will be entitled to all the estate “ real and personal, present and to come,” of which, by the first clause of the contract, it is declared that the community shall he composed.</p>

Eastern Dist. APPEAL PROM THE COURT OP THE POURTH JUDICIAL DISTRICT, POR THE PARISH OP IBERVILLE, THE JUDGE OP THE SECOND PRESIDING. This case comes up on an appeal from an order of court, raising a deposit of certain notes and moneys, and ordering them to be paid over to the plaintiffs. A copy of the order is annexed to the petition of appeal, certified by the clerk of the court. It was never signed by the judge.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This case comes up on a monition taken out of the Parish Court for the parish of New-Orleans, by John M‘Donough, to perfect a sale of a certain tract of land sold by the plaintiffs, under an order of seizure and sale against the defendant, at which he (M‘Donough) became the purchaser. See the case in 9 Louisiana Reports, 308.

Mary, Palfrey, J. The will should be maintained as a nuncupative testament by public act. The case of iSeghers v. Antheman. (1 Mart. N. S. 73,) is directly in point. That case was decided under the Code of 1808; but the law in relation to donations, mortis causa, was not altered, in this respect, by the Code of 1825. The language of the will shows that it was read to the testatrix in the presence of the witnesses.

<p>A judgment by default taken on the fifth day after service of citation on the defendant, and afterwards confirmed, is illegal and null. C. P. 180, 310.</p> <p>A succession cannot be accepted for minor heirs, but with the benefit of inventory ; and no portion of the estate can come into their possession, until it has been administered upon in due course of law, when, whatever may remain after the payment of the debts, will fall under the administration of their tutor. C. C. 1051.</p> <p>Tutors of minor heirs are not entitled, ex officio, to administer successions accruing to their wards. They may claim the administration, where there are no beneficiary heirs of age, in preference to any other person; but they must give security, and qualify as other administrators. C. C. 1034, 1037.</p> <p>Persons holding claims against a succession cannot sue the tutor of the minor heirs, and obtain a judgment against him for debts due by the deceased. Where no executor or administrator has qualified, they must provoke the appointment of an administrator, against whom, as the legal representative of the estate, they may institute suit. C.C. 1031 to 1060. C. P. 974 to 996.</p>

<p>Where a jury, in ascertaining the amount to which a defendant is entitled for improvements made by him which have enhanced the value of the land recovered by plaintiff, charge the latter with the buildings erected on the land, at a high estimate, as necessarily enhancing the value of the soil, without affording him an opportunity of availing himself of the choice given by art. 500 of the Civil Code, the verdict will be set aside.</p>

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

<p>Eastern Dist.</p> <p>ArrEAL FROM TIIE PARISH COURT EO’R THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This case was brought up by the defendant, as appellant from a judgment against him. The facts on which the appeal was dismissed, are fully stated in the opinion of the court, which follows.</p> <p>moved to dismiss the appeal, for want of the testimony on which the case was tried in the court below.</p> <p>2. The plaintiff’s counsel further urged, that it clearly appeared the appeal was taken for delay, and was frivolous, and that ten per cent, damages should be awarded,</p>

Appeals from the District Court of Rapides, King, J. contended that the Supreme Court was without jurisdiction, the statute of 21st December, 1814, having made the offence a criminal one, citing Markham v. Close, 2 La. 581. The offence is not an indictable one. 1 Russell on Crimes, p. 53. 1 Chitty’s Criminal Law, p. 163. 10 Petersdorff’s Abridgment, title Indictment, pp. 307, 308.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.

The sale from Gray to the plaintiffs was complete. C. C. 2414, 2453. The sale cannot be treated as a nullity, and the property seized as belonging to the vendor ; there must be a revocatory action. 9 Mart. 649. 3 Ib. N. S. 338. 5 Ib. N. S. 361, 634. 6 Ib. N. S. 140. 14 La. 189. There was no sale. The cotton was at Gray’s risk, never having been weighed, (Civ. Code, art. 2433,) and res perit domino. There was no price fixed. Ib. art. 2439.

<p>Appeal from the Court of Probates of Rapides, Waters, J.</p>

Eastern Dist. APPEAL PROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW-ORLEANS. This is an action instituted by the plaintiff, to recover a year’s salary from the defendants, as superintendent of the New-Orleans Cotton Press.

Eastern Dist. ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. In this case, Miriam Fowler, wife of G-. W. Boyd, residing ip the parish of Jefferson, applied to the District Court for the First Judicial District, to be authorized, contradictorily with her husband, (who had refused his authorization,) to sell certain lots of ground belonging to her as her separate property. ' The husband on being cited, appeared, and opposed her application in court.

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF NEW-C LEANS. This case comes before this court on an opposition made by the plaintiffs, as heirs of Frarxjois Robouam, deceased, to the account rendered by Jacques Lafort, his testamentary executor.

The’ plaintiff sues for the amount of a promissory note, made by the defendant payable on the 1-4 of March, 1840, to the order of Leonard B. Compton, for $5000, with interest at ten per cent a year, from maturity till paid, endorsed by Leonard B. Compton, and alleged to have been transferred and delivered to the plaintiff.

<p>Where a party sues to annul a conveyance of land which he alleges was fraudulently obtained, to his prejudice as a previous purchaser from the same vendors, to the knowledge of one of the defendants who acted as agent of the other, and prays to be declared the owner of the land, and for damages, the action will not be dismissed on an exception that it is brought in a parish which was neither the residence of the defendants, nor that in which the land was situated. Per Cu-riani: The action is rather a personal one, to obtain redress for a fraud, the effect of which was to deprive the plaintiff of a right previously acquired, than a real one to recover the land itself in the adverse possession of defendants ; and though the annulling of the contract would confirm, as against the defendants, plaintiff’s title to the land, the gist of the action is the cancelling of a contract.</p> <p>Where a plaintiff recovers judgment in an action to annul a conveyance of land alleged to have been fraudulently obtained by the defendants, to his prejudice, from his vendors, defendants cannot complain that the judgment did not decide, between such vendors, as their warrantors, and themselves. Per Curiam : If the conveyance was obtained by fraud, there was no valid assent, and no contract of sale, from which the obligations of warranty could result, ever existed; and the right of the defendants to recover back what was really paid under such a contract, may well be questioned. Ex turpi causa non oritur actio.</p> <p>An action may be maintained against an absentee, though not personally cited, and though no properly of his have been attached, where a curator, ad hoc, has been appointed to represent him.</p> <p>The trouble and expense to which a party is subjected in establishing his title to property of which the defendant attempted fraudulently to dispossess him, form a good ground for estimating the damages he is entitled to recover.</p>

<p>Appeal from the District Court of Rapides, King, J.</p> <p>The counsel for the defendants prayed for a re-hearing in this case.</p>

Eastern Dist. APPEAL FROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, FOR THE TARISH OF IBERVILLE, THE JUDGE OP THE DISTRICT PRESIDING. This suit commenced by an order of seizure and sale, sued out by the plaintiff as the transferee of three several promissory notes, of the following tenor and date, transferred by Martin Duralde, the payee and endorser in blank, by authentic act. “ $5000.

<p>Appeal from the Court of Probates of Concordia, Me Whor-ier, J.</p>

<p>Where a purchaser promises in a written memorandum signed by him, to pay the price “by acceptance and note,” the vendor must prove a demand of such acceptance and note, to entitle him to recover in an action on the memorandum for the price in money.</p>

Eastern Dist. APPEAL- EROJI THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF POINT COUrEE, THE JUDGE THEREOF PRESIDING. This case commenced by the executory proceeding on a note and mortgage made and executed by the defendants, D. and G. Devall, to the plaintiff, in part of the price of a plantation and slaves.

<p>Where au appellant urges as a ground for reversing a judgment, that the attorney by whom the ease was conducted on his behalf in the court below had no authority to represent him, the allegation must be supported by affidavit, or it will not be noticed.</p> <p>A declaration by the vendor in an act of sale sons seing privé, that the price had been paid, is not proof of payment against third persons.</p> <p>Where an act of sale is attacked by a creditor of the vendor as simulated, on the ground that no price was paid, proof of payment of the price is on the party interested to maintain the sale. The creditor cannot be required to prove a negative.</p> <p>Though a creditor cannot treat a conveyance of real estate by his debtor, alleged to be fraudulent, as null, and seize under a fi. fa, the property in the hands of his ¡J- vendee ; yet if the latter do not enjoin the proceedings, but permits the sheriff to seize and sell the property as still belonging to his vendor, and afterwards sues the purchaser at the sheriff’s sale to annul the sale and cause himself to be declared the owner of the property, the creditor, cited in warranty, may plead by way of exception, whatever he might have urged in a direct action to annul the first sale.</p>

Eastern Dist. APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, POR THE PARISH OF EAST EATON ROUGE, THE JUDGE THEREOF PRESIDING.

Eastern Dist. APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OP NEW-ORLEANS. The plaintiff alleges that he furnished supplies, consisting of various articles of iron-ware, cordage and ship chandlery, for the use of the schooner Liberty, in the months of May and June, 1836, then lying in the port of New-Orleans, at the special instance and request of her officers.

<p>Appeal from the District Court of Catahoula; Curry, J.</p>

<p>Where accounts have been referred to auditors, the court may, on a motion to ho> mologate the report, receive testimony and examine the auditors themselves, and correct any errors in the report, or order a new one, or a new examination of the accounts (C. P. 457); but it must proceed summarily. It cannot, without pronouncing on the report, submit the case to a Jury. C. P. 457.</p> <p>Where the names of some of the witnesses whose testimony has been taken under a commission were not mentioned in the commission, nor in the notice given to the other party to attend at the time and place fixed by the commissioner for taking the evidence, their testimony will not be admissible.</p> <p>A bill of lading is evidence of a shipment as between the carrier and shipper, but not of delivery to the consignee.</p>

Easters Dist. APPEAL FROM THE PARISH C0TJR.T FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiff shows, that in May, 1835, she obtained a judgment of separation of property against her husband, for the restitution of her dotal and paraphernal rights, amounting to six thousand four hundred and thirty-three dollars, with a legal mortgage; upon which she prayed and obtained an order of seizure and sale against certain slaves, in possession of the defendant as third possessor.

<p>Although on a prayer of oyer hy defendant, the object of which is to obtain information to aid him in shaping his defence, plaintiff file a mutilated or imperfect copy of a will, he will not be precluded from giving in evidence, on the trial, a true and authentic copy of the instrument on which he relies as his muniment of title.</p> <p>Where interogatories are propounded hy defendant to a plaintiff who resides in another state, and the order to answer them fixes no period within which the answers shall he made, and it is not proved that the attorney of the absentee was served with any notice of the order or a copy of the interrogatories, they cannot, on failure of plaintiff to answer, be taken for confessed. Act 10 February, 1843..</p>

<p>Courts of Probate are competent to decide on the title to real property, when the question arises, directly or collaterally, in a suit for partition. Act 97th March, 1843, ch. 71.</p> <p>The undivided share of an heir in a succession may be seized and sold under ' execution (C. P. 647) ; but a creditor of an heir cannot seize and sell the right of his debtor to a part of the property inherited by him. The seizure must be of the whole of his rights in the succession, subject, to the charges with which they may be burthened.</p>

Eastern Dist. APPEAL 3TR.OM THE COURT OE THE EIRST JUDICIAL DISTRICT. This is an action instituted by tbe wife of P. R. Colsson, to annul an act of renunciation, in which she renounced her right of mortgage, in favor of the Consolidated Association Bank, to secure a debt due by her husband.

Eastern Dist. ArPEAX. FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiff instituted this suit against, Samuel Jacobs, to rescind a sale of one-third undivided part or interest in thirteen squares or lots of ground, in the lower part of the city of New-Orleans.

<p>Appeal from the District Court* of Carroll, Willson, J.</p>

<p>Damages will not be allowed for a frivolous appeal, unless prayed for by the ap-pellee.</p>

<p>A wife, who has concealed or converted to her own use, without accounting therefor, or made away with any of the effects of the community of gains, cannot renounce the community. G. C. 2387. But for whatever cause she may have forfeited the right of renouncing, she can be made responsible only for one-half of the debts contracted during the marriage. C. C. 2378.</p> <p>A wife may render herself personally liable for one-half of the debts of the community, by her acts, though done without any fraudulent intent; as by taking an active concern in the affairs of the succession, or by failing to make an inventory, before making her renunciation, and within the legal delays, &e.</p> <p>Property of all kinds found in the possession of a person at the time of his death, is presumed to belong to his succession.</p>

Eastern Dist. APPEAL FROM THE COURT OF TROBATES, FOR' THE PARISH OF EAST BATON ROUGE. This is aa action instituted by the heirs and legal representatives of George Langley, deceased, to set aside his last will and testament, executed in the nuncupative form, by notarial act, in the parish of East Baton Rouge.

Eastern Dist. APPLICATION POR. A MANDAMUS. This case comes before the court on an application for a mandamus,/directed to the Hon. Thomas Gibbs Morgan, judge of the third judicial district, commanding him to take jurisdiction of, and try a certain cause, which he had sent to the Probate Court.

<p>Appeal from the District Court of Carroll, Curry, J.</p>

<p>Appeal from the District Court of Natchitoches, King, J.</p> <p>cited Chitty on Bills, ed. 1834, pp. 62, 63, 64, 66. Bailey on Bills, 262 to 265. 11 Mart. 452. 12 Ibid. 177.</p> <p>cited Hart v. Long et al., 1 Rob. 84 ; McKee v. Dubois, 5 Rob. 421.</p>

<p>Where a tableau of distribution is filed by the syndics, fixing the rank and right of the creditors and is homologated, it becomes res judicata, and no subsequent alterations or other claims can bo allowedin a second tableau filed by the syndics.</p> <p>Where a ta-button 0isd filed by the syndics, fixing the rank and rights of the homoiogatedf it becomes res fa subsequentaiter-claims can be at-lowed in a second tableau n-led by the syn-dlos‘</p>

<p>Appeal from a judgment of the District Court of Madison,</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT FOR THE PARISH OF POINT COUPEE, THE , JUDGE OF THE SECOND PRESIDING. The plaintiff alleges that he is the owner of a tract of land in the parish of Point Coupee, containing 2015 acres, which was originally granted by the Congress of the United States to General Lafayette, in 1824.

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE TARISII OF IBERVILLE, THE JUDGE OF THE DISTRICT PRESIDING. The plaintiff, as tutor, etc., caused a writ of fieri facias to issue against the defendant, and was levied on a sugar plantation which was advertised for sale.

<p>The seventh section of the statute of Mississippi, of 21 February, 1840, prohibiting the banks of that State from transferring, by endorsement or otherwise, any note, bill receivable, or other evidence of debt, and the second section of the statute of 22 February, 1840, requiring that they shall, at all times receive their own notes at par in payment of any debts, due them by bill or otherwise, are constitutional, and do not impair the obligation of any contract; and where a judgment obtained by a Mississippi bank has been seized by a creditor of the hank, the debtor is still entitled to discharge it in notes of the bank, at par.</p> <p>Where other sureties have been substituted, the original surety in an injunction bond may be examined as a witness for the plaintiff in injunction, though, by the statute of 25 March, 1831, § 3, it is declared that the surety on the bond shall be considered as a party to the suit, and be liable to be condemned, in solido, with the plaintiff, for damages and interest.</p>

<p>Appeal from a judgment of the District Court of Madison, Curry, J., in favor of the plaintiffs.</p> <p>The notice was sufficient. Bailey on Bills, (ed. 1826,) 173, 174. Chitty on Bills, 315, 316. 4 Mart. N. S. 226. 5 Mass. Rep. 167. 2 Johnson’s Cases, 1. McCulloch v. Commercial Bank, 16 La. 568. Barker v. Whitney, 18 La. 579. Bank of Louisiana v. Watson, 15 La. 38. Nott's Ex’r v. Beard, 16 La. 310. Mainer v. Spurlock et al. 9 Robinson, 161.</p>

Eastern Dist. .APPEAL PROM THE COURT OP PROBATES POR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiff recovered a judgment against the defendant, as testamentary executor of Antoine Carraby, in the sum of twenty-two thousand nine hundred and twenty dollars, and issued notice of judgment which was served by the sheriff.

Eastern Dist. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH AND CITY OF NEW-ORLEANS. On the 27th of August, 1834, Honoré Flotte died intestate, in the city and parish of New-Orleans, leaving a widow of the second marriage, pregnant, and five children by his first marriage, all minors. On the 13th of September, the widow was appointed administratrix of the estate of her deceased husband, and V. A. Michot, tutor to the minor children of the first marriage.

<p>Asale under ajli fa. made before the promulgation of the statute of 6 April, 1843, ch. 135, in a parish in which a newspaper was published al the time, and not advertised therein as directed by art. 669 of the Code of Practice, will be annulled, unless in cases embraced by the statute of 25 February, 1828, ch. 29, where the amount of the judgment under which the seizure was made, is less than three hundred dollars.</p> <p>Where the price bid at a sale under a fi.fa. does not exceed the amount of anterior special mortgages existing on the property, there can be no adjudication. C. P. 684.</p>

<p>Appeal from the District Court of Madison, Curry, J.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This .was an action to recover the sum of three thousand seven hundred and six dollars, according to an account annexed ,to the petition. To this account was appended, the affidavit of Samuel Abbott, one of the plaintiffs, made before a notary public, in the city of Philadelphia, that the account was justly due, owing and remaining unpaid.

<p>The underwriter ha3 an undoubted right to be informed of every circumstance tending to create or increase the risk against which insurance is sought, and which, if disclosed, might induce the insurer to decline or demand a higher premium.</p> <p>So, where the plaintiff was induced by the rumor of an attempt to set fire to an adjacent ropewalk, to insure his house against fire, and withheld this circumstance from the underwriters : Held, that he could not recover.</p> <p>The underwriter has an undoubted right of every cireum-stance, tending to create or increase the risk insurance sought, and sed, might fo^LuL^orde-mand a higher</p> <p>So, where the plaintiff was induced, by them-mor of an attempt to^set^fire ropewalk, to m-sure his house against fire, and circumsumcetlllS from the under■writers: Meta, that he could not recover.</p>

<p>Appeal from a judgment of the District Court of Madison, Curry-, J., dissolving an injunction obtained by plaintiffs, with damages.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.- This is an action to recover from the defendants the amount of hire, and the possession of a gang of negroes, which the plaintiff conveyed to them in February, 1833, under a conditional contract. On the 9th February, 1836, this suit was instituted on the ground, that the defendants had failed to comply with the terms of the agreement, and were largely in arrears for the hire of the slaves.

<p>Appeal from the District Court of Concordia, Willson, J.</p>

<p>Where the expressions in the title convey three arpents front with the depth of eighty, the purchaser cannot claim by diverging lines to the rear, under the pretext that he purchased the residue of a plantation, and thereby obtain more than a superficies of two hundred and forty i arpents in the form of a parallelogram.</p> <p>Where the expressions in the title convey three arpents front, with the depth of eighty, the purchaser cannot claim by diverging lines to the rear, under the pretext that he purchased the residue of a plantation, and thereby obtain more than a superficies of two hundred and forty arpents in the form of a parallelogram.</p>

<p>Appeal from the District Court of Carroll, Willson, J.</p>

Eastern Dist. .ArtíBfL gOURT 03? rROBATES FOR THE PARISH OF WEST BATON * 1 • | ROUGE. This is an action instituted in the Court of Probates, by the tutor of the minors Hacket, against the puchasers, to annul a sale of minors’ property, sold by the parish judge, as auctioneer ; and which the plaintiff alleges, was made without the formalities of law, and is null and void.

Eastern Dist. AMBAI. PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. The plaintiffs sue as holders of a promissory note, for three thousand five hundred and thirty-two dollars, with interest, and endorsed by the defendants, Smith, Goozey and others, all residing out of the state.

Eastern Dist. APPEAL FROM TIIE COURT OF TIIE FOURTH JUDICIAL DISTRICT FOR THE PARISH OF POINT COUPEE, TIIE JUDGE THEREOF PRESIDING. The plaintiff obtained an order of seizure and sale, against certain property, in possession of the defendant, to enforce payment of one of the instalments of the price. The defendant made opposition, and obtained an injunction to stop the sale, until an investigation be had on the merits.

<p>The prescription of one year established by art. 3499 of the Civil Code, does not apply to the claim of one who has paid for another bills due by him to an innkeeper. Such a claim is only prescribed by ten years. C. C. 3508.</p> <p>The prescription of three years established by art. 3503 of the Civil Code against actions for the recovery of money lent, does not apply to the claim of one who has paid the bills or obligations of another, at his request, either in money or by drafts on a third person. Such an action is only prescribed by ten years. C. C. 3508.</p> <p>A promissory note, not transferable by endorsement or delivery, is not prescribed by five years. C. C. 3505.</p> <p>Where one pays the debt of another at his request, the action to recover the money advanced is not prescribed by the prescription applicable to the debt itself. The action to recover the amount is a personal one, Which is only prescribed by ten years. C. C. 3508.</p>

Eastern Dist. APPEAL PROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, POR THE TARISH OP EAST BATON ROUGE, THE JUDGE THEREOF PRESIDING. This is an action of partition.

The endorser was discharged, by the illegality of the notice of protest. To authorize a recovery against her husband under the alleged promise, it should have been proved that he knew of the endorser’s discharge at the time of his promise. The only consideration for his promise, was his belief that his wife was bound as endorser.

Eastern Dist. APPEAL FROM THE COURT OP THE THIRD JUDICIAL DISTRICT, POR THE PARISH OP WEST FELICIANA, THE JUDGE OF THE EIGHTH PRESIDING. The plaintiff instituted suit against the defendant, Smith', and held him to bail. The latter gave bail and bond, conditioned to appear at the next term of the court, to answer such judgment as should be obtained against him.

<p>Appeal from the Court of Probates of Madison, Downes, J.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT FOR THE PARISH OF EAST BATON ROUGE, THE JUDGE OF THE EIGHTH PRESIDING. This is ail action on a prison limits bond for three hundred dollars, against the surety therein.

Eastern Dist. APPEAR PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. This is an action to recover the fifth instalment of interest, on the price of a sugar plantation and slaves, sold by the plaintiff’s ancestor to the vendor of the defendant, for one hundred thousand dollars, payable in twenty years, with six per cent, interest, annually.

<p>A judgment of nonsuit will not support a plea of res judicata.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW-ORLEANS. This is a petitory action ; the plaintiff as curator of the estate of the late John Gravier, instituted suit to ■ recover two lots of ground in a square, bounded by St. John, St. Peter, Common and Gravier streets, in New Orleans, in possession of the defendant.

<p>Appeal from the District Court of Natchitoches, King, J.</p>

<p>Appeal from the District Court of Avoyelles, Boyce, J.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF EAST BATON ROUGE, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action of boundary. The plaintiff alleges that he is the owner of a tract of land on the Mississippi river, containing seven and one-half arpents front by the depth of forty, the lines opening about eleven degrees, so as to give four hundred and fifty superficial arpents, and also of another tract situated in its rear, both bordering on, and adjoining the defendant below, who disputes with him about the true dividing line, and claims to have it so run as deprives him of a considerable portion of his two tracts above described. He prays for an order of court, requiring the parish surveyor to go on the land, after notifying the defendant, and run off the true dividing line between them. •</p> <p>The defendant pleaded a general denial, and averred he was not in possession of other and more land than was sold and delivered to him by the syndics of the creditors of Clague & Oldham, whom he calls in warranty; and he further averred, that the boundaries had been fixed and established for more than ten years, between their respective plantations.</p> <p>On these pleadings and issues the parish surveyor, in pursuance of an order of court, went on the land with two witnesses, and run the front and side lines, and made a diagram.</p> <p>The defendant protested against the whole proceeding. On the plaintiff’s offering the certificate and diagram of the survey in evidence, the defendant’s counsel objected on the ground, that the surveyor persisted in making the survey, after the defendant made his opposition and protest against it. The court overruled the objection, and a bill of exceptions was taken. The plaintiff then produced. the original title papers of the land which he claims. The defendant offered no evidence. On examining the case the district judge rendered judgment of non-suit, from which the plaintiff appealed.</p>

Eastern Dist. APPEAL PROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OP EAST EATON ROUSE, THE JUDGE THEREOF PRESIDING. The plaintiff for himself and as tutor of his minor child, instituted this suit to recover one hundred and sixty acres of land, which he alleges, the defendants, John Shackleford and Joseph Cooper, without color of title, have taken into their possession, and refuse to deliver up.

<p>Where the evidence is contradictory, and its effect depends in a great degree upon the credibility of the witnesses, a jury are the best judges of the weight to which it is entitled ; and their verdict will not be disturbed, unless manifestly wrong.</p>

<p>No tutorship exists during the marriage over the children born of it. C. C. 234. While the marriage exists, the father is the administrator of the estate of his minor children, and he is accountable for the property and revenues of the estate, the use of which he is not entitled to by law, and for the property only of such as the law gives him the usufruct of: his administration ceasing at the majority or emancipation of the children. C. C. 267, 239, 240. But the child has no legal mortgage or privilege on the property of the father as a security for his faithful administration during the marriage, C. C. 552, 553, 555, 3280 to 3288.</p>

<p>Where the mother as natural tutrix, exchanges certain slaves of the community, for a tract of land, the son as heir of his father may sue to recover this land from a third possessor, to whom his mother illegally conveyed it. The institution of suit amounts to a ratification of the exchange and purchase of the land for his benefit.</p> <p>the mother, while tutrix of her son, purchases land with the funds or property of his deceased father’s succession, and he assents to the contract, his title to it will prevail over a naked possessor.</p> <p>Where tlie mother, as natural tutrix, exchanges certain slaves of the community, for a tract of land, the son,' as heir of his father, may sue to recover this land from a third possessor, to •whom his mother illegally conveyed it. The institution of suit amounts to a ratification of the exchange and purchase of the land for his henefit.</p> <p>If the mother, ■while tutrix of her son, purchases lands with the funds or property of his deceased father’s succession, and he assents to the contract, his title to it will prevail over a naked possessor.</p>

<p>Appeal from the District Court of Avoyelles, Campbell, J.</p>

<p>Appeal from the District Court of Avoyelles, Boyce, J.</p>

<p>Damages will not be allowed for the delay occasioned by an appeal, unless prayed for by the appellee.</p>

<p>In an action by the holder against the maker of a promissory note, where it is shown by an authentic act, that the note sued on, was delivered to the plaintiff already endorsed in blank by the payees, as part of the price of real estate, sold by him to the defendant, he will recover without proof of any of the subsequent endorsements in blank.</p> <p>Such a note not being acquired in the ordinary course of business from the endorsers, they will be considered in the light of.sureties of the maker. The original holder of a note endorsed in blank, being in possession, he may sue the maker and recover without proving the endorsements, except the payee, as the note passes by delivery.</p> <p>The plaintiff may have his judgment altered, contradictorily with the defendants, from a judgment with mortgage and liberty to seize certain property, to a general judgment without mortgage.</p> <p>In. an action by the holder against the maker of a promissory note, where it is shown by an authentic act, that the note sued on was delivered by the plaintiff, already endorsed in blank by the payees, as part of the price of real estate sold by him to the defendant, he will recover without proof of any of the subsequent endorsements in blank.</p> <p>Such a note not being acquired in the ordinary “course of business from the endorsers, they will be considered In the light of sureties of the maker.</p> <p>The original holder of a note endorsed in blank, being in possession, he may sue the maker, and recover without proving the endorsements, except the payee, as the note passes by delivery.</p> <p>The plaintiff may have his judgment altered, contradictorily with the defendant, from a ■judgment with mortgage and liberty to seize certainproperty, í°, a general judgment imlh-mortgage.</p>

<p>A stipulation in a note given for the price of property sold on a credit, that, if not paid at maturity, the amount for which the note was given shall bear the highest conventional interest from the date of the note till paid, is usurious.</p> <p>The amount claimed, and not that allowed by the judgment of the court of the first instance, determines the right to appeal.</p>

<p>Where the plaintiff in a petitory action, appeals from a judgment rendered in favor of the defendant, third persons ealled in warranty, must be cited as appellees, or the appeal will be dismissed. Per Curiam: One who asks relief at our hands, must bring before us all the parties interested in maintaining the judgment which he seeks to have amended or reversed.</p>

<p>Appeal by defendant, from a judgment rendered against him by the District Court of Concordia, Willson, J.</p>

<p>The certificates of the clerk and judge, that “the refiord contains all the evidence adduced on the trial,” will he disregarded, and the appeal dismissed, if the cause is not in a situation to enable the.court to examine the testimony and the whole case, on its merits.</p> <p>The certificates of the clerk, and judge, that “the record contains ail the evidence adduced on the trial,” ■will he disregarded, and the appeal dismissed, if the cause is not in a situa-ation to enable the court to examine the testimony and the whole case, on its merits.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action to recover from the defendant, Britling-ham, as master and part owner, and of B. Issa.v.erdcn, three-fourths owner of the brig Ophir, all residing in New-York, indemnity, amounting to seven thousand three hundred and three dollars, for advances made, and a,penal bond executed by the plaintiff, in Campeachy, to release said brig from seizure, about the 1st of May, 1835.

<p>Appeal from the District Court of Rapides, Campbell, J.</p>

<p>Where the judge, in granting an appeal, whether suspensive or devolutive, omits to state at the foot of the petition praying for it, the amount of the security to be given by the appellant, the appeal must be dismissed. C. P. 574, 575, 578.</p>

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

Eastern Dist. APPEAL FROM THE COUP.T OF TIIE FIRST JUDICIAL DISTRICT. This is an action to annul and set aside an account and a notarial act, as having been ratified and signed by the plaintiff, through error, &c., and that the defendant be required to render a new account of his administration as tutor, and pay over a large sum which is alleged will be due on a full settlement.

<p>Where a creditor accepts from the assignees of the bank a certificate, recognizing him as a creditor for the amount of the certificate, and declaring him or his assigns entitled to the benefit of the assignment, and to a pro rata proportion of any dividends which may be declared, his transferree cannot dispute the validity of the assignment. Per Curiam,: By surrendering to the assignees the original evidence of his claim, and accepting the certificate, the creditor acceded to the conditions of the assignment itself.</p>

<p>Appeal from the District Court of Avoyelles, Boyce, J.</p>

Eastern Dist. APPEAL PllOM THE COURT 01? THE THIRD JUDICIAL DISTRICT POR THE PARISH OP EAST BATON ROUGE, TIIE JUDGE OP THE EIGHTH PRESIDING. This is an action by the widow and heirs of Manuel Lopez, a judgment creditor of Gregorio Bergel, against Mary Bergel, f. w. c., to annul and set aside a sale to her by their debtor, of a lot of ground in the town of Baton Rouge, as fraudulent and simulated.

<p>Appeal from the Court of Probates of Madison, Downes, J.</p>

<p>The statute of Mississippi of 21 February, 1840, which prohibits (s. 7) the baúles Of that State from transferring, by endorsement or otherwise, any note, bill receivable, or other evidence of debt, renders any general assignment by a bank, so far as such ckoses in action are concerned, illegal. Pei- Curiam : The remedy would not have been eo-extensive with the evil, if, while the assignment of a particular chose in action was forbidden, a bank could make a general assignment of all such property possessed by it.</p> <p>Plaintiff having sued defendants, a banking company, on notes issued by them, certain persons intervened, alleging that defendants had assigned to them their whole property for the benefit of their creditors ; and plaintiff, in answer to the petition of intervention, averred that the assignment was illegal. The interve-nors having pleaded the prescription of one year' against revocatory actions: Held, that the assignees, by seeking to avail themselves of the assignment by way of intervention, became thereby plaintiffs or actors, and that the illegallity being set up by way of exception, prescription cannot be pleaded, under the rule Quee iemporalia, See.</p> <p>Though a direct action to annul a contract be prescribed, its nullity may be pleaded by the party against whom it is sought to be enforced, at any time, by way of exception.</p> <p>The. illegallity of an assignment made by a bank in the State of Mississippi, in violation of the seventh section of the statute of 31 February, 1840, prohibiting the transfer of any note, bill, or other evidence of debt, may be set up by a creditor of the bank who has attached its property, where the assignment is pleaded as a means of defeating the attachment. The provision of that section, that any action on a bill, note, or other evidence of debt, so transferred, shall abate on the plea of the defendant, does not restrict to a debtor of the bank the right to plead the illegality of such a transfer.</p>

Eastern Dist. APPLICATION FOR A MANDAMUS. This is an application for a mandamus.

<p>Appeal from the District Court of Avoyelles, Baillio, J.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This case comes up on a rule taken by the present plaintiff in the nature of an injunction to prevent , the defendant from enforcing a judgment and execution against Early and Amelung, which he purchased at sheriff’s sale. The facts of the case show, that one Samuel Chapman obtained a verdict and judgment against Early and Ame-lung, the 17th of May, 1837, for the sum of seven thousand one hundred dollars.

<p>Appeal from the Court of Probates of Madison, Downes, J.</p>

<p>The right of reversion, on condition that the donor survives the donee and his descendants, does not accrue so long as any of the descendants of the donee survive.</p> <p>So, where it was stipulated by the father, who gave his daughter certain re.al and personal property and.slaves, on her marriage, that in case he survived her and her descendants, the donation should return to him; and the donee died leaving four children, one of whom also died ; Held, that no part of the donation reverted, so long as any descendants of the donee were living.</p> <p>The right of condition that the donor and Ms descend-accrue so long as seenthmte'of the donee survive,</p> <p>wa1°’ sTipuiated by the father, who cave his daughter certain nal property an°d slaves on her marriage, that in case he survi-descetidcma? the donation should return to lum, and the donee four’ children^ one of whom that no part of vertedTso^ng as any descend-were living.</p>

<p>Where an act of sale of real property was signed by the parties in the presence of a parish judge, acting as a notary, no other proof of execution is necessary to authorize its being recorded, and to give it the effect against third persons which the law allows to acts sous seing privé duly registered. C. C. 2242, 2250.</p> <p>An act of sale, not authentic, owing to the want of the signature of one of the witnesses, or through any other defect of form, is good as a private writing, if signed by the parties. C. C. 2232.</p> <p>Where a vendor sells the property in a slave, reserving the usufruct during his life, his possession being based upon the reservation of usufruct, cannot support a plea of prescription. One cannot prescribe against his own title, nor change, by his own act, the nature and origin of his possession. C. C. 3480.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of redhibition. The plaintiffs allege that they purchased a negro man named Kit, from the defendant for one -thousand dollars, and gave their promissory note therefor.

Eastern Dist. ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of nullity, to set aside a former judgment of the District Court, for want of jurisdiction. The judgment sought to be annulled, was rendered in November, 1836, in an action of partition, between the brothers and sister of a deceased sister, all of full age, to have the property of her succession divided, or partitioned by lici-tation.

<p>Appeal, by the administrator of the succession of Silas F. Thomas, deceased, from a judgment of the Court of Probates of Avoyelles, JBaillio, J.</p>

Eastern Dist. 'APPEAL FROM. THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an application to the court by the plaintiff, who .was a retail dealer in the city of New-Orleans, for the benefit of the insolvent law, of March 25th, 1808, relating to debtors in actual custody.

contended that the attachment should be maintained, citing Civ. Code, art. 2961. 7 Mart. N. S. 145. 11 La. 288. 9 Ibid. 78. Story on Agency, 49, 51, 55, 59, 239, 246. urged, that the defendant, Harvey, having appeared by attorney, the action should not be dismissed, though the attachment were dissolved; citing, 1 Mart. 266. 6 Ibid. 574. 8 Mart. N, S. 352. 13 La. 11, 109.

Eastern Dist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. This is an action to recover a balance of one thousand five hundred dollars, due on a quantity of lumber and timber, consigned to the defendant for sale. An account was annexed to the petition. Some letters from the defendant to the plaintiff, admitted sales of part of the consignment, and authorized the latter to draw for six hundred dollars, which he did, and the draft was protested for non-payment.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This case commenced by attachment. The plaintiff alleges that the defendant, M'Kinstry, who resides at Manchester, in Mississippi, is indebted to him in the sum of five hundred and forty dollars and sixty-eight cents, according to an account annexed to the petition, for goods and merchandize sold and delivered to him. He prays for an attachment against property of the defendant in Louisiana, and for judgment, etc. And that Messrs. Irwin, Hall & Walton, be summoned as garnishees to answer, concerning property of the defendant in their hands.</p> <p>A defensor was appointed who put in a general denial for the defendant.</p> <p>Peter Wager, of Philadelphia, now intervened and claimed the property attached, as belonging to him, having consigned it to the defendant, M'Kinstry, as a mere agent The petition alleges, that the attachment of the plaintiff has issued, and been levied on property of the intervenor in the hands of a mercantile house of J. Hall, Walker and Walton. He prays for leave to intervene and oppose the sale of the property, and that it be ordered to be delivered to him, or its proceeds.</p> <p>On these pleadings and issues the case was tried by the court.</p> <p>In the course of the trial, the intervenor offered to prove ownership of the property attached, which was objected to, on theground, that he alleged his property to be in the hands of a different firm from that attached. The objection was overruled, and a bill of exceptions taken.</p> <p>There was judgment for the intervenor, and dismissing the attachment. The plaintiff appealed.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action instituted against J. W. Behan and John Freeland, to recover the value of certain stolen property, taken by two of their slaves.

This was an action on certificates of deposit, of the Commercial and Railroad Bank of Vicksburg, payable after date at a period fixed., and bearing interest, at five per cent a year till due. The plain.tiff claimed interest at the rate of 12| per cent a year, from the date of the demand made on the defendants, according to the laws of the state of Mississippi, where the deposit was made and the Rank situated.

Eastern Dist. APPEALi FROM THE COURT OF THE FIRST JUDICIAL DISTRICT* This is an action for damages. The plaintiff alleges he purchased four hundred and twenty boxes bacon, for the sum of seventeen thousand one hundred and forty-nine dollars, from Early & Amelung, which he sent to Charleston, S. C., and on opening it, there was a large part of it damaged, so that he sustained an actual loss of seven thousand one hundred dollars in consequence thereof.

<p>Notice to the drawer of the protest of a bill for non-payment, directed to him at a post-office not the nearest to his residence, without any proof that he was in the habit of receiving his letters and papers there, is insufficient.</p> <p>A promise by the drawer to pay a bill, from which he has been released by illegalities in the notice of protest, will not be binding, unless it be proved that he was aware of his discharge at the time of the promise.</p> <p>The draweris not entitled to notice of non-payment by the acceptor, where the bill was accepted merely for the accommodation of the former.</p>

Eastern Dist. ArPEAL PROM THE COURT OF THE FIRST JUP1CIAL DISTRICT. This is an action on a policy of insurance. Held: not to apply to contracts, when the law would imply an obligation. 5 Wheaton, 326. 4. The acts of an officer done in the ordinary course of the business confided to him, are prima facie evidence, that they were in the scope of his duty. 8 Wheaton, 338. 5. The bailiffs receive rent, the law implies a title.

<p>Rule on defendant to show cause why an execution should not be issued against her individually for a debt due by the succession of which she was curatrix. Defendant failed to appear. The rule was made absolute, and she appealed. The citation to answer the rule was served on a person stated in the return to be the attorney in fact of the curatrix. There was no allegation in the rule that the defendant was absent from the State ; and the power only authorized the attorney to represent her in her capacity of curatrix. Held, that the rule must be discharged, for, assuming that defendant was absent at the time of serving the citation, the power only authorized the attorney to represent her as curatrix, and the object of the rule was to render her personally liable.</p>

<p>The certificate of the notary by whom a note was protested that demand of pay. ment was made at the proper place, is prima facie evidence against the endorser, and sufficient, per se, until rebutted by direct proof.</p>

<p>The authentic evidence required to authorize the issuing of an order of seizure and sale must be complete so far as relates to the debt. Thus where a mortgage by authentic act was executed under power of attorney, or where a note secured by such a mortgage has been assigned, the power and the assignment must be proved by authentic acts. As relates to the capacity of persons suing en auter droit, prima facie evidence of their right is sufficient. In such a case, copies of the bond and oath of a curator, certified under the hand and seal of the probate judge to be true copies from the originals on file in his office, will be sufficient evidence of the capacity of the plaintiff, though the letters of cura-torship would be, perhaps, better evidence.</p> <p>The certificate of a notary that he presented a note, which was payable at the office of a parish judge, at the said office, to a person in the office, and demanded payment thereof, and was informed that there were no funds to pay it, is sufficient evidence of demand against the drawer of the note.</p>

<p>Appeal from the Court of Probates of New Orleans, Baillio, J.</p>

Eastern Dist. APPEAL PROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ÓRLEANS. This is a redhibitory action to recover back the price of a slave. The plaintiff alleges he purchased a slave named Major, from the defendant, as evidenced by public act, dated the 11th March, 1834, for the sum of seven hundred dollars, payable in twelve months, with ten per cent, interest, from the date of his note until paid.

<p>The partners in a particular partnership are not bound, in solido, for’the debts of the firm, but each for his share only, Calculated in proportion to the number of the partners (C. C. 2844) ; nor can one partner bind the rest, unless empowered to do so specially, or by the afíleles of partnership. C. C. 2843.</p> <p>The wordsyoijif debtor in art. 3517 of the Civil Code, were inserted in the English text of that article, through an error of the translator or transcriber. The article must be interpreted as applying to debtors in solido.</p> <p>The acknowledgment of a.debt by one joint debtor, or a suit brought by or against one of several joint debtors, does not interrupt prescription as to the rest.</p> <p>To interruptor renounce prescription, the acknowledgment must be of a particular, specific debt. Proof that the party acknowledged in conversations with the wit. nesses, that he was largely indebted to the plaintiff, is insufficient.</p> <p>The renunciation, like the acceptance, of a succession, has effect from the opening of the succession.</p> <p>The rights of creditors having privileges or mortgages are fixed at the time of the debtor’s death.</p> <p>A partnership is dissolved by the death of one of the partners, unless there be a stipulation to the Contrary (C; C. 285), but Where the succession of a partner in a particular partnership is insolvent, and administered with the benefit of inventory, the partnership cannot be continued without the assent of ail the creditors, though the articles of partnership have provided for its continuance.</p> <p>After the dissolution of a partnership none of the members can bind the rest, nor the partnership, for the payment of a debt which has been prescribed. A possessor in bad faith cannot claim any thing for improvements made by him Oil the premises, where their value does not exceed that of the fruits and revenues received by him. Such a possessor has no claim to the fruits and revenues. C. C. 3416.</p>

<p>Eastern Dist.</p> <p>Arl’EAX, FROM TI1E COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This suit was instituted the 14th of May, 1835, against the defendant, as the first drawer of á promissory note, for one thousand and forty-four dollars and forty-five cents, pay-, able four months after date, to the order of John M'Laughlin, dated the 8th January, 1836, and endorsed by the payee in blank.</p> <p>The defendant was held to bail, and gave bond with a surety, not to depart from the state without leave of the court, etc.</p> <p>The plaintiff styles himself a resident of Vincennes, in the state of Indiana, but at the time of bringing suit was present in New-Orleans. He prays judgment, etc.</p> <p>The defendant pleaded a general denial, and averred that the note sued on was given for the purchase of a steamboat, with regard to which the drawers entered into a particular partnership, and that he can only be liable in any event, for one-fourth part thereof; but that he is not liable, because1 the boat proved to be worth nothing.</p> <p>On the 5th April, 1837, the defendant’s counsel took a rule on the counsel for the plaintiff, to' show cause why the surety in the bail bond should not be discharged, and the bond cancelled, the defendant having been admitted by a judgment of the court, to the benefit of the insolvent laws, for the relief of insolvent debtors in actual custody.</p> <p>Nothing was granted on this rule.</p> <p>The defendant then pleaded a peremptory exception, and set up, as a bar to this action, the proceedings and judgment of a suit, in .which the defendant had made a voluntary surrender to his creditors, which had been accepted.</p> <p>On these pleadings and issues the case was tried.</p> <p>The plaintiff’s claim was placed on the bilan, and an attorney to the absent creditors appointed. 1</p> <p>The district judge decided as follows :</p> <p>“ The insolvent proceedings are pleaded as a bar to any further proceedings in this suit.</p> <p>“ The question raised by the counsel of Olney, is, that inasmuch as the suit of Olney vs. Walker, was pending when the insolvent proceedings were commenced, notice of the meeting of the creditors ought to have been served on Olney’s attorney in that suit.</p> <p>“ The object of prosecuting the suit against Walker, is obviously to pursue the bail; Walker being a non-resident.</p> <p>“ The old code, page 434, article 14, continues to regulate this matter tender the 8th section of the act of 1817, and prescribes, that process must be issued to creditors to attend, if they live in the parish where said meeting shall take place.</p> <p>“ The power of an attorney at law is limited to the prosecution of the suit. He could not compromise, grant time, accept a surrender, vote or do any act at the meeting of creditors. Even if a service of notice or citation on an attorney in fact was good, an attorney at law for the prosecution of the debt, is not such an attorney in fact, on whom service of such notice would be valid, if, for instance, the creditor lived out of the parish, but in the state ; there was an attorney of absent creditors who represented Olney.</p> <p>“ It is, therefore, considered, that there be no further proceedings in this suit, by reason of the insolvent proceedings of the defendant, Charles Walker, and that plaintiffs pay any costs caused by the prosecution of this suit, after the 31st October, 1835.”</p> <p>From this judgment the plaintiff appealed.</p> <p>contended, (hat the judgment should be reversed, because the insolvent proceedings form no bar to this suit; and that they are in fraud of • the plaintiff’s rights, and can have no effect against him, as neither he or his attorney were notified thereof.</p>

Eastern Dist. APPEAL FROM THE COURT OR THE FOURTH JUDICIAL DISTRICT, TOR THE PARISH OR IBERVILLE, THE JUDGE OR THE DISTRICT PRESIDING. This is a petitory action.

<p>Appeal from the District Court of Concordia, Curry, J.</p>

Eastern Dist. APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is an action on a promissory note. The plaintiffs style themselves in th'eir petition, George M. Lee and P. A. 'Hardy, and allege the defendants are indebted to them in the sum of five thousand dollars, on an endorsed promissory note, for which sum they pray judgment. The defendants pleaded a general denial, and require strict proof of the demand, and of the plaintiffs’ title to the note.

Eastern Dist. APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT FOR THE PARISH OF ASCENSION, THE JUDGE THEREOF PRESIDING. This is an action by the payee and holder of a draft, against the acceptor. The facts of this case are so fully stated in the opinion of the court, which follows, that it would be useless to recapitulate them.

Appeal by the plaintiffs from a judgment of the District Court of Rapides, King, J. It is admitted that the succession of plaintiffs’ mother was a vacant one according to the Code of 1808. Book 3, tit. 1, art. 118. The character of the succession was determined by that Code; (6 La. 441;) and no posterior legislation could destroy or impair rights already acquired by third persons.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action to compel the defendant to comply with a sale and purchase by him, of four lots of ground, in the city of New-Orleans, situated on Delord-street.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action by the plaintiff, as holder of the following promissory note, made and signed by the defendant. “ Mew-Orleans, 11 th March, 1835. “ $610. Twenty-four months after date, I promise to pay to the order of John Hertzog, six hundred and ten dollars and no cents, for value received. “ AUGUSTE WETZEL.

<p>The late Julien Poydras, provided in his will, that his slaves should be sold with and as attached to his plantations; that the purchaser should bo formally bound to set free all the slaves of both sexes, twenty-five years after the day of sale ; and to keep on the plantations, without their being bound to work, all the slaves of both sexes, who shall have arrived at the age of sixty years, and pay annually to each of them twenty-five dollars, for their support : Held, that none of said slaves have the right to be emancipated until twenty-five years after the sale, even if they have attained their sixtieth year,; and that no slave, having arrived at this age, can claim his stipend of twenty-five dollars per annum, and exemption from labor, until he is emancipated.</p> <p>The late Ju-lien., ,p?ydp}s provided m his ■will, that his soweSiviüifdand to his planta*1 tions; that the puiehasei should ai0iThet0siSavesrof both sexes, twen-ter th/day V on e’thed plantations, without bound to woricf both^sexes^vho shall have am-ved at the age of sixty years, and each^of^them twenty-five doi-their support: rf^said^silves have the right to be emancipated, until twenty-five saieTevenif they tE sixtieth year; and that arrived.6*at^hi? hfs6’ Stipend'S twenty-five doi- and ^exemption ted.</p>

Eastern Dist. APPEAL PROM -THE COURT OP THE PIRST JUDICIAL DISTRICT. This was an appeal froto a judgment, on a rule requiring the defendant to pay over to the plaintiffs a sum of money. There were many plaintiffs and appellees, some of whom were not regularly cited. One of them, J. G-.

Eastern Dist. APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OF NEW-ORLEANS. This is a case of arrest.

contended that the contract of Coxe was not usurious. Citing 9 Peters, 399-403. 1 Metcalf, 158. 3 Peters, 42. 4 Howard’s Miss. Rep. 622-4. The contract was usurious. Where a loan is made, under the disguise of a sale of stock, and the stock is taken at a higher rate than its cash value, he contract is usurious. 1 Espinasse, 11, 40. Douglass, 73J. 1 Ambler, 371. . 1 Bro. 149. 2 lb. 175. 1 Eden, 273. 3 B. 6 C. 257. 5 D. & L. 138. 7 Mart.

<p>The estimated value of slaves settled as dowry, does not transfer the property in them to the husband, unless there be an express declaration to that effect in the marriage contract.</p> <p>So, the future husband, does not come under any expresé obligation to pay the price of slaves, estimated in fixing tho amount of dowry, any more than he does of lands that are dotal, which cannot, even by express agreement, become his property.</p> <p>There must be a definite price fixed, for slaves which are constituted dot, r and which the husband is bound to pay, or there is no sale and transfer of the property in the slaves, to him.</p> <p>The estimated value of slaves settled as dowry, 10 tl>e hus* hand, unless there be an ex-effect* in t,ie marriage contract,</p> <p>So tl>e f *“1'0 husband does not come under any ex-to'pay°theS/>«°e of ,d?v®s> osti_ mated m fixing the amount of aSnlm d^S°of ‘h.at, are dotal, which cannot, even by ex-hecoSI hiTpro-perty-</p> <p>be a*6 definite {j™gS wíuch are constituted • dot, husband isbound . no^saie^and transfer of the slaves1 to ifim! C</p>

The release of the mortgage did not extinguish the vendor’s privilege. The latter arises from the very nature of the debt. 17 Dalloz, 116, 121, 122. Persil, dues. Hyp. p. 64. Until the price is paid, the vendor’s title is defeasible, and the sale may be rescinded. ■ Civ. Code, arts. 3516, 2527, 2539, 2041. Martee v. Roach, 8 La. 82. A special mortgage arises from convention. The privilege and special mortgage may exist together. Accinelli v. Menard, 2 Mart. N. S. 222.

<p>Money placed in the hands of a cashier of a bank to be transmitted to a branch, having been lost through his negligence, to protect himself from suspicion he gave his notes for the amount, endorsed by a third person, the surety on the bond given by the cashier for the faithful discharge of his official duties. The notes having been paid by the endorser, in an action by the latter to recover the amount paid on the ground of error and illegality or want of consideration: Held, That the consideration for which the notes were given was not illegal; and that the obligation of the cashier to make good any loss occasioned by his neglect, if not a legal obligation, was, at least, a natural one, and sufficient to prevent the endorser from recovering back the amount paid by him. C. C. 2281, 2285.</p> <p>A promise to pay pre-supposes a consideration. It is for the party seeking .to avoid the promise to show that there was none.</p> <p>The burden of proof is on the party affirming.</p> <p>Fraud will not be presumed ; like other allegations it must be proved ; but it may be proved by circumstantial as well as by direct evidence ; by simple as well as by legal presumptions. C. C. 1842.</p> <p>The verdict of a jury must be set aside when evidently wrong.</p>

Eastern Dist. APPEAL PROM THE COURT OE THE THIRD JUDICIAL DISTRICT, POR THE PARISH OP EAST PELICIANA, THE LATE JUDGE THEREOF PRESIDING.

<p>Eastern Dist.</p> <p>OK A AEHEAKSNQ.</p> <p>applied for a rehearing in this case, on the. fpllowing grounds:</p> <p>The document H., and the answer of Lambeth, the only one of the partners that Icnew any thing of the transaction, both show, that the transfer of Bostwick’s accounts to the account of D. S. Beauchamp & Co., was made on sufficient, authority and without condition. The only parts of the evidence that tends in the least to invalidate this, is the testimony. of Bostwick, and to this it is objected :</p> <p>1. That he was an incompetent witness, being a partner in the firm of D. S. Beauchamp and Co., who were co-obli-gors in the note sued on, and directly interested in the event of the suit, because B. Dunn and T. Dunn would have had, in case judgment had been rendered against them on this note, an action against him. A bill of exceptions having been taken to his testimony, and insisted on in this court, his testimony should have been rejected.</p> <p>2. That the testimony of one witness could not invalidate the answers of a party interrogated on oath.</p> <p>A rehearing having been allowed, the case was held under advisement until the present term.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW' ORLEANS. This is an action against the defendant, as captain of the ship Mobile, for damage and injury occasioned to certain goods and packages of merchandize, shipped at Liverpool to the plaintiffs in New-Orleans.

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH ANI> CITY OF NEW-ORLEANS. This case has been before this court in another and former appeal. See 8 Louisiana Reports, 234. On the return of the case to the Parish Court, Charles Harrod and Stephen Henderson, by their counsel, with leave of the court, filed their amended or supplemental answers on oath, to the call in warranty made on them.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. ¡This is án executory action, by the wife of Dimitry, separated in',property, but assisted by her husband, against ^ George Póñock, for the seizure and sale of a lot of ground hi Gondé'street, New-Orleans, in virtue of her legal mort- ' gage, .for jthe restitution pf her dowry.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This case comes up on the petition of the Second Municipality, of the city of New-Orleans, to the District Court, to have Roffignac-street opened, and praying for the appointment of commissioners under the act of 1832, which provides for opening and' widening streets, and which authorizes the district judge to appoint said commissioners, who are required to go upon the premises, to assess and apportion the damages and costs among the different persons owning property in the vicinity ; and whose report, when confirmed by the District Court., is to be final and conclusive upon all the parties concerned.</p> <p>Lawrence and several other persons made opposition to the report of the commissioners in this case, which were overruled by the district judge; and Hoffman and Strawbridge, Clark Woodrooff and Marie Joseph, f. w. c., severally prayed an appeal to the Supreme Court, which was allowed.</p> <p>While these proceedings were going on, proceedings of a similar nature were pending in the District Court, in the matter of Municipality No. 2, in opening and extending Notre Dame-street. An appeal having been prayed from the judgment homologating and confirming the commissioners’ report in that case, and the district judge being of opinion it was not an appealable matter, refused to grant the appeal.</p> <p>A mandamus was asked for, and the judge required to show cause why he refused to grant the appeal as prayed fol*.</p> <p>The judge showed cause and grounded his defence to the ruj0j on ^he i7iird section of the act of 1832, in which it is expressly said, “ that when a commissioner’s report is made it shall be confirmed by the District Court, and such report shall be final and conclusive, as well upon the mayor and city council, as upon allpersons and parties interested, etc.” The meaning of these expressions, the judge understood, to exclude the right of appeal; for if there be right of appeal, the confirmation of the report is not final and conclusive, as the law requires.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. On the 6th day of December, 1837, the plaintiff filed his petition and bilan, praying for the benefit of the insolvent laws of this state, for the relief of debtors in actual custody.

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

Eastern Dist. APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is a redhibitory action to rescind the sale of a slave and recover back the price. The'plaintiffs allege that on the 8th of December, 1336, they purchased a negro woman, named Betsey, at auction, sold as the property of the defendant and by his directions, for the sum of seven hundred and forty-five dollars.

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS. This case comes up on the opposition .of the heirs of the late Joseph Cheyron, whose succession was opened in the city of New-Orleans, to the account filed by the curators of his vacant estate. The opponents allege that they are the legal heirs of the deceased, and that there are three items charged by the curators against the estate, which they oppose : 1.

<p>An appeal may be claimed as a. matter of right, from a judgment homologating a final and notarial act of partition of property, formerly held in community between the applicant and his deceased wife, where the amount is sufficient to give jurisdiction to the Supreme Court. It is no ground for refusing the appeal to allege, that the act of partition has been made in conformity to previous decrees of the Supreme Court, between the same parties, having the force of res judicata, and that it is but the carrying into execution of such previous decrees. C. P. 565. Per Curiam; whether anything has been done by the notary, or by the judge in homologating the report, in violation of the legal rights of the parties as settled by previous decrees, are questions which can only be examined on the appeal of the party who thinks that he has been aggrieved.</p>

Eastern Dist. APPEAL FROM, THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR ^THE PARISH OF EAST BATON ROUGE, THE JTJDGE THEREOF PRESIDING. This is an action to recover from the defendants, the sum of three thousand dollars, as a fee for professional services rendered them in an action of partition in which they were joined, instituted by one Mrs. C. Whitten against E. Selser, and others, for the partition of John Selser’s estate.

Rule by L. Millaudon on the Judge of the District Court of the First District, to show cause why a mandamus should not be issued, directing him to allow an appeal from a judgment in the matter of Paul Pandelly v. His Creditors. showed for cause, that the interest of Millaudon alone was insufficient to entitle him to an appeal; and that, since the appeal was refused to Millaudon individually, a petition for an appeal from the same judgment had been presented by Millaudon and…

<p>He who sacrifices the property of another to save his own, is hound to pay for the property so sacrificed.</p> <p>Where a steamer has a keel boat alongside, and to avoid a snag, changes her course, by which the keel is snagged, the steam-boat is bound to pay for the loss.</p> <p>But if the accident was inevitable to the keel boat, by keeping their course, and by a chango the steam-boat would have been injured, her owners are not liable for the loss of the keel boat.</p> <p>He who sacrifices the property of another to save his own, is hound to pay for the property so sacrificed.</p> <p>Where a steamer has a keel-boat alongside, and to avoid a snag changes her course, by which the keel is snagged, th<| steamboat is bound to pay for the loss.</p> <p>But if the accident was inevitable lo the keel-boat by keeping their course, and by a change, the steamboat would have been injured, her owners are not liable for the loss of the keel-boat.</p>

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>The appeal should be dismissed for want of proper parties. 3 La. 304. Cox v. Rees, 16 La. 109. Lincha. Brewer, Ib. 247. Kohn v. Wagner, 1 Rob. 275. Drew v. Atchison, 3 Rob. 140. Garcia et al. v. Their Creditors, 3 Rob. 436. Duggan y. Lizardi, 5 Rob. 225. Dumas v. Lefebvre, 10 Rob. 399.</p>

Eastern Dist. APTEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is a petitory action in which the plaintiff claims a square of ground, making part of two lots in the plan of a town called Milneburg, situated on the margin of lake Pontchartrain, at the lake end of the rail road.

Eastern Dist. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action on a policy of insurance. On the 29 th October, 1835, the plaintiff took out a fire policy of insurance from the office of the defendants, at a premium of two and a half per cent., on sundry articles, consisting of flour, bread, wood, furniture, carpenters’ tools, and a bakery with its machinery, etc., situated on the corner of Girod and Si.

The case of Nicholson v. Thompson, (5 Rob. 367,) only determined the right of the Governor to make an appointment of a port warden. That case did not settle the matter in dispute here. Civ. Code, 2265. Thompson never was legally qualified as a port warden — he had not taken the oath of office ; consequently he had no right to demand the fees of office. Bullard <fc Curry’s Dig. 610.

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

<p>Appeal from the Court of Probates of New Orleans, Bermudez, j.</p>

The law imposing the tax on brokers is unconstitutional. First: Because Congress has the exclusive power to regulate commerce. The power to regulate, implies the power to preserve. The State cannot have power to destroy or impair what Congress has the power to preserve and regulate ; therefore, the State cannot tax the instruments whereby Congress exercises its constitutional powers. 4 Wheat. 428, 432. An unlimited power to tax, is a power to destroy. Ib. 428, 432.

<p>Freighters or shippers of goods have a privilege on the vessel for the amount of damages occasioned by the failure in delivering the goods, through the fault of the captain.</p> <p>Where the master and owner of a vessel lands goods at an intermediate port and ships them to the place of destination on board another vessel, without the consent of the shipper, and they are lost, he is liable for the loss.</p> <p>Freighters or shippers of goods have a privilege on the vessel, for the amount of damages occasioned by the failure in delivering the goods, through the fault of the captain.</p> <p>master and own-knd°f goods^at an intermediate port, and ships them to the place board "''another theSeeonserd °of the shipper, and is liable for’tiie loss' .</p>

Samuel Paekwood, and his late wife, Alice, were married in the state of Connecticut, about 1796 or 1797. In 1804, they removed to this State, where they acquired considerable property in plantations, slaves, lots and houses in the city of New Orleans, &c. In 1836, they removed to the city of New York, where they resided until the death of the wife, in 1840. The husband still resides there.

Eastern Dist. APPEAL PROM THE PARISH COURT, FOR THE PARISH AND CITY OF .NEW-ORLEANS. This is an action on a policy of insurance.

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

<p>Easters Dist.</p> <p>APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.</p> <p>' This is an action on a policy of insurance. The plaintiffs made insurance the 18th December, 1835, at the office of the defendants, for whom it might concern, at and from any port in the Gulf of Mexico, to New-Orleans, in an- open policy, to the amount of fifty thousand dollars,- on specie or bullion, shipped to their address.</p> <p>The plaintiffs show, that in January, 1836, Lelong, brothers, shipped for their own account at Tuspan, a port in the Gulf of Mexico, on board of the good schooner Atalanta, bound to New-Orleans, and consigned to the petitioners a quantity of silver bullion, valued at fourteen thousand nine hundred and ninety-two dollars. That soon after signing bills of lading, the schooner sailed from Tuspan for New-Orleans ; but, in consequence of injury sustained in crossing the bar and subsequent stress of weather, she was soon after compelled to put into the port of Tampico, where she was wrecked and totally lost.</p> <p>They further show, that the bullion was lost by the peril covered in the policy of insurance, and that they have made the proper preliminary proof of their loss, and after refusal of the company, to pay, did make'an abandonment to the defendants, of all right, title or claim, t,0 the said bullion, and have since repeatedly and amicably demanded payment, which has been refused. ' They pray judgment for the sum , . , - . , , 1 ; ■ . , ot nine thousand four hundred and ninety-six dollars, with interest.</p> <p>The defendants pleaded a general denial, and aver, that the loss, if any has occurred, has been the result of illicit and contraband trading.</p> <p>Upon .these pleadings and issues the cause was tried before the court and a jury.</p> <p>There was a mass of testimony taken and offered, to prove' that the exportation of bullion from Mexico, was prohibited by the general laws of that country, and that, consequently, the trade in it was illicit, and that it was thrown overboard to ayoid seizure.</p> <p>It appeared from the evidence that the bullion was put on board the schooner several days before she sailed, and was ultimately lost (or part of it,) when the vessel was wrecked at Tampico. -</p> <p>The counsel for the plaintiffs prayed the district judge to charge the jury “ that if they believed that the schooner Atalanta sailed from Tuspan in good order, and in consequence of injuries afterwards sustained by the perils of the sea, she was obliged to put into Tampico, and was wrecked ; and that although the bullion insured, may have been thrown overboard with the intention of saving it from seizure, by the authorities of Tampico, the perils of the seas must be considered as the cause of the loss and not the illicit shipment of bullion, supposing it to be, to have been illicitly-shipped.” The court refused so to instruct the jury, but left it to tbe jury to say under the supposition aforesaid, which •would, under the circumstances, have been the cause of the loss.</p> <p>The court, on motion of the plaintiffs’ counsel, further instructed the jury, “ that in order to make.out the defence, there should not only have been illicit and contraband trading, but there must have been also ‘ a seizure and deten-lion,’ the loss occasioned by such seizure being insufficient.” To this charge the defendant’s counsel took a bill of exceptions.</p> <p>The jury returned a verdict for the plaintiffs, for four thousand seven hundred and eighty-four dollars, and from judgment rendered thereon, after an unsuccessful attempt to obtain a new trial, the defendants appealed.</p> <p>1. There is no evidence whatever of illicit trading; the uncontradicted testimony of three respectable witnesses, show that the bullion was shipped openly in the usual course of trade, accompanied by a permit, which was handed to the custom-house officer on board of the schooner Atalanta, at Tuspan.</p> <p>2. The immediate and proximate cause of (he loss, was the perils of the seas, the striking on the bar at Tuspan, the gale encountered afterwards, and the subsequent stranding and total loss of the vessel at Tampico. Even if a seizure and condemnation had taken place subsequently, the underwriters would have been liable, as the stranding of the vessel was the proximate cause of the loss. 2 Bingham, 205. Hughes on Insurance, chap. 9, p. p. 103, 214.</p> <p>3. If the shipment of bullion was illegal, the underwriters are still liable, if they have not protected themselves by special clauses, inasmuch as they are presumed to be cognizant of foreign revenue laws. Philips on Insurance, p. 157, ■cap. 10, p.p. 276, 288, cap. 13. Hughes on insurance, p. 61.</p> <p>4. The defendants being liable under t.he general principles of law regulating marine insurance, the exception in the policy derogating from the common law of indemnity, must be construed strictly; they are only absolved by the terms of their policy, from loss or damage which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade. No seizure or detention occurred. Phillips on Insurance, 294, 297, 298. Marshall, 346. 3 ■Sergeant and Rawlc, 82.</p>

Eastern Dist. ON AN APPLICATION POIt A MANDAMUS. This is an applicationf or a mandamus,'to the judge of probates for the parish and city of New-Orleans, requiring him to take cognizance of a monition, taken out to confirm a sale, made by authority of the Probate Court, in 1833, previous to the passage of the monition law.

Eastern Dist. APPEAL FROM THE COURT OF PROBATES FOR THE TARISH AND CITY OF NEW-ORLEANS. This case arose io the Court of Probates, on the opposition of the under tutor of the minor Mathews, to the reception and homologation of the inventory of the deceased ancestor’s estate.

<p>Eastern Dist.</p> <p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action to recover arrearages of rent from the defendants, and to cancel and annul a lease made to them by the plaintiffs, for the non-payment of the rent.</p> <p>The plaintiffs, W. F. Hyde, E. B. Hyde and E. D. Hyde, trading under the commercial firm of. W. F. & E. B. Hyde & Co., represented byW. F. & E. B. Hyde, allege, that they leased to the defendants a certain store and brick tenement in Chartres-street, New-Orleans,'for four years,, and renewable, (at the pleasure of the lessees,) at one thousand eight hundred dollars per annum, commencing on the first of November, 1831; the rent payable monthly, amounting to one hundred and fifty dollars per month.</p> <p>They further show, that the defendants have failed to pay the rent punctually as required by the terms of the lease, and that they are in arrears for the months of March, April, May and June, 1836, although demand of payment has been repeatedly made. They pray that the lease be cancelled and annulled, and that they have judgment for the rent due and unpaid them.</p> <p>The defendants admit the lease, but deny they had violated its provisions ; that they had repeatedly, with the consent of the plaintiffs, paid them two months’ rent at a time, ancl fhat fhey legally tendered them the sum due before the institution of this suit, and they deny all the other allegations in the petition.</p> <p>Upon these pleading's and issues, the cause was tried.</p> <p>It was in evidence, that the defendants neglected to pay the rent for the months of March and April, 1836, according to the terms of the lease. On the 3d of May, the plaintiffs styling them W. F. & E. B. Hyde, addressed a written notice to the fendants, to quit the premises in fifteen days, in consequence of the non-payment of the rent and forfeiture of the lease.</p> <p>The parish judge decreed the forfeiture of the lease, and gave judgment for the rent due and to become due until the re-delivery of the premises.</p> <p>The defendants appealed.</p> <p>This suit is instituted to annul a lease made by the plaintiffs to the defendant, upon the ground that the defendants failed to pay the rent as it became due. The law is clear. See Louisiana Code, articles 2680 and 2682. 10 Louisiana Reports, 19.</p> <p>The only question then, is one of fact: Was the rent paid as agreed upon by the parties 1 The court below after hearing both parties, decided that the defendant had failed to pay the rent according to the lease, and therefore, decreed it to be null, and the plaintiffs now pray a confirmation of the judgment of the lower court.</p> <p>contended, that there was not sufficient cause in this case to authorize the annulment of the lease. If the lessee fails to fulfil his engagements, the court may dissolve the lease ; but it is merely discretionary, and there ought to be good grounds; for leases are to be dissolved “ in the manner expressed concerning contracts in general,” except no delay is to be given. Louisiana Code, articles 2700, 2698, 2699.</p> <p>2. In this case, there can be no more than a passive or negative breach of the contract of lease. The debtor must be. put in default, and in each case a default is necessary. Here there was no putting in default, for the notice to the defendants was to quit the premises, on the ground that the lease was broken and forfeited. Louisiana Code, 1905, 1925. 3 Louisiana Reports, 331</p> <p>3. There was no legal demand. The rent is payable on the premises, when not otherwise stipulated, and demand of payment should be made there when the rent becomes due, according to the terms stipulated in the lease. Louisiana Code, article 2152.</p> <p>4. The lease was made with W. F. & E. D. Hyde & Co. The receipt offered, as well as the notice to quit, were signed by W. F. & E. D. Hyde solely. The plaintiffs state in their petition, that W. F. & E. D. Hyde, were authorized to conduct the business, and they admit the discrepancy, but have offered nothing to remove it or prove their allegation.</p> <p>5. The evidence shows, that the parties were neighbors and had mutual dealings. The defendants were not in the habit of paying regularly, and no complaints were made of it; and at times they were mutually indebted to each other.</p> <p>This all shows that there is no good ground or cause for dissolving the lease.</p>

<p>A vessel which proceeds on her voyage, and is prevented from entering her port of destination by a blockading squadron, which requires her ta put back to the port of departure, sustains a loss by a peril insured against, under the clause in the policy, insuring against “ the arrests, restraints and detainments of kings, etc.” for which the insurers are liable.</p> <p>Where the vis major, or blockading force, applies so directly and effectually as to break up the voyage, it is a restraint within the terms of the policy, although not attended by any actual seizure or arrest.</p> <p>So, where insurance was upon merchandize, in a schooner bound from , New-Orleans to Tampico, against the usual sea risks, and against “ arrests, restraints and detainments of all kings, princes or people, of whatever nation, etc.and on her arrival off the bar of Tampico, she was boarded and ordered away by the officers of the French blockading^ squadron, and compelled to return : Held, that the insurers were liable, and that the* insured had the right to abandon and recover, as for a ’ technical, total loss.</p> <p>A vessel which proceeds on heT voyage, and is prevented from enleringherport of destination by a blockading squadron, which requires her to put back to the port of departure, sustains a loss by a peril insured against, undei1 the clause in the policy, insuring against “the arrests, restraints and de-tainments of kings,” etc., for which the insurers are liable.</p> <p>Where the ins major i or blockading force applies so direetly and effectually as to break up the voyage, it is a restraint within the terms of the policy, although not attended by any actual seizure or arrest.</p> <p>So, where insurance was upon merchandize in a schooner, hound from New-O'rleaus to Tampico, against the usual *sea risks, and against “arrests, restraints and detainments of all kings, princes or people of whatever nation,” etc., and on her arrival off the bar of Tampico, she was boarded and ordered away by the officers of the French blockading squadron, and compelled to return : Heldy that the insurers were liable, and that the insured had a right to abandon and re-* cover, as for a technical, total loss.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT FOR THE PARISH OF IBERVILLE. This case comes up on a second appeal. The first one was dismissed without a decision on the merits, at the February term of this court, in 1837. The present appeal was granted, and the petition filed with the clerk of the court a qua, the 11th April, 1837, and made returnable to this court the third Monday of May following.

moved to dismiss this appeal, for the want of proper parties, the natural tutor by whom the suit was commenced having died, and no other tutor having been since appointed. Civ. Code, arts. 288, 290.

Eastern Dist. APPEAL FROM THE PARISH COURT, POR THE PARISH AND CITY OF NEW-ORLEANS. This suit commenced by attachment. The plaintiffs sue as the acceptors of a'bill of exchange for four thousand one hundred dollars, drawn by the defendant, who resides in the state of Mississippi.

<p>In a petitory action the plaintiff must make out a valid title in himself, or judgment will he given for the defendant.</p> <p>Parol evidence is admissible to show that the land in dispute is not included in the conveyance under which plaintiff claims. Per Curiam,: The fact might have been more properly shown by a survey of the premises, or by a plan annexed to the act of sale ; but, in their absence, parol evidence is admissible.</p>

Eastern Dist. APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT, This case commenced by attachment. The plaintiff, J. J. Wilson, alleges, that the defendant is indebted to him in the sum of one thousand and fifty-seven dolíais and forty-five cents, according to account and notes annexed, for which he prays judgment, and that a writ of attachment issue. The plaintiff, Wilson, and the defendant, both reside in Mississippi.

<p>The amount of a judgment rendered by a court of the first instance, cannot he pleaded in compensation in another action, where an appeal taken from the judgment is yet undetermined.</p>

<p>The act of 1 April, 1835. incorporating the New Orleans Gas Light and Banking Company, having conceded to the company the exclusive privilege of vending gas in the cities of New Orleans and Lafayette (§ 36,) during a certain period, the company is bound to supply gas to all persons who may call for it, on their paying or offering to pay therefor. The company have no right to require the owner of a building to pay an amount due by a former owner for gas, as the condition of supplying him.</p> <p>A promise by the owner of a building to pay an amount .due by a former owner for gas, made in order to obtain gas for his own use, and in consequence of a threat, by the company having the exclusive privilege of vending gas, that unless the amount were paid, no gas should be supplied, is void. C. C. 1853.</p> <p>A debt due by a third person is a sufficient consideration for a promise to pay ; but the promise must be unequivocally and freely made, and made to the creditor. C. C. 3004, 3008.</p>

<p>Defendants sued by the transferree of a note made by them, but not negotiable, pleaded their discharge under the insolvent laws. The schedule of the insolvents showed that the payee of the note was placed on it as a creditor for a sum exceeding the amount of the note. It was not proved that the note had been transferred to plaintiff, nor that defendants were notified of the transfer previously to filing their bilan. Held, that it was for the plaintiff to show that the amount for which the payee was placed on the bilan as a creditor did not include the note sued on ; and there being no allegation that defendants have acquired any property since their discharge, that there must be a judgment of nonsuit.</p> <p>A creditor, whose claim has not been placed on the schedule of an insolvent, is not affected by the proceedings.</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 a pet.itory action, instituted by the widow and heirs of James Sides, deceased, to recover from the defendant a negro woman, named Diana, which they allege, belonged to the community existing between the late James Sides and Dolly Keys, one of the plaintiffs, at his death, and which is in the possession and claimed by the defendant.

<p>The license of an attorney at law cannot be withdrawn or annulled, unless on con» viction in the manner prescribed by the act of 27 March, 1823. The proceedings must be by information before the district court of the domicil of the accused ; and there must be a trial by jury. Acts 31 March, 1808,s. 6. 27 March, 1823, s. 3. 22 March, 182G, s. 1.</p>

<p>The surety in an injunction bond, is competent to be surety in the appeal bond in the same suit, unless he has been condemned by the judgment appealed from, as a party under the act of 1831.</p> <p>The surety in an injunction bond, is competent to be surety in the appeal bond in the same suit, unless he has been condemned by the judgment appealed from, as a party, under the act of 1831.</p>

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

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

Eastern Dist. APPEAL PilOM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is an action on a bill of exchange.

<p>The verdict of the jury rendered on doubtful evidence, and the effect of presumptions arising- from circumstances in a case, will not he disturbed.</p> <p>The verdict of the jury rendered on doubtful evidence, and the effect of presumptions arising' from circumstances in a case, will not be disturbed.</p>

<p>An action merely to annul a judgment, must be brought in the court which pronounced it.</p> <p>But where a creditor sues to annul not merely a judgment of partition, but the partition itself, on the ground of fraud and collusion, in order to reach the property, the cognizance of such an action belongs to the ordinary jurisdiction, and -not to the Court of Probates.</p> <p>An action, merely to annul a judgment, must be brought in the court ■which pronounced it. „</p> <p>But where a creditor sues to annul, not merely a judgment of partition, butthe partition itself, on the ground of fraud and collusion, in order to reach the property, the cognizance of such an action belongs to the ordinary jurisdiction, and not to the Court of Probates,</p>

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

Eastern Dist, APPEAL PROM TUB COURT 01' THE FIRST JUDICIAL DISTRICT. This is an action instituted for the balance of an account, amounting to one thousand and forty-eight dollars and fifty cents, according to a statement of the account between the parties annexed to the petition. The defendant pleaded the general issue, payment, and want of an amicable demand; and then sets up a demand in reconvention. The cause was tried on the pleadings alone.

<p>A., for the accommodation of B., drew a hill on the latter, in favor of C., which was accepted, but protested for non-payment by the payee. After the protest, B., to secure A. from any loss in consequence of his failure to pay the bill, gave the latter a mortgage on a plantation and slaves. C., having afterwards recovered, judgment against A. and B. for the amount of the bill, assigned the judgment to £>., who was subsequently, in consideration of releasing A., subrogated by the . latter to his mortgage on the plantation and slaves. It was not proved that A. paid anything as drawer on the bill: Held, that the mortgage in favor of A., being intended only to indemnify him against any loss in consequence of the non. payment of the bill, and not to secure the payment of the bill itself, the contract was personal to A.; that the event, -with a view to which it was executed not having occurred, the mortgage never took effect; and that consequently D. acquired nothing by the transfer of the rights of A.</p> <p>When the holder of a protested hill becomes the purchaser of property belonging to the acceptor, sold at the suit of a third person, subject to certain mortgages, for a price exceeding the amount of the previous mortgages, the debts will extinguish each other by operation of law, to the amount of the smallest, by compensation, C. C. 2204. The amount due by the purchaser, after satisfying the previous mortgages, is sufficiently certain. Id certum est quod cerium reddi potest.</p> <p>The purchaser of property sold under execution subject to special mortgages, is entitled to retain out of the price the amount required to pay such mortgages, C. P. 679, 683. But this privilege being allowed merely to protect him from the danger of paying twice, where the debts secured by mortgage have been extinguished by prescription or otherwise, the purchaser can no longer retain the amount. The extinction by prescription, after the purchase, of a debt evidenced by a note and secured by mortgage, and which formed a part of the price, enures to the benefit of the mortgagor, not of the purchaser. Per Curiam : The debt due by note is prescribed by five years from its date, while the obligation of the purchaser to pay the price is only prescribed by ten years.</p> <p>Where the purchaser of property sold under execution, subject to a special mortgage given to secure the payment of a note, retains the amount of the mortgage as a part of the price, and subsequently makes a partial payment to the mortgagee, the payment will interrupt prescription both as to the original debtor and the purchaser, being made in discharge of the former, and with his implied assent.</p> <p>The holder of a protested bill purchased property of his debtor, sold at the suit of a third person subject to a mortgage, the payment of which was assumed by the purchaser as a part of the price. The. latter subsequently transferred the bill to a fourth, and after the transfer, the debt secured by mortgage was extinguished by prescription ; Held, that the amount of the debt so extinguished not being due to the mortgagor until the note was prescribed,' and the purchaser having previously transferred the note, no compensation could take place between the debt evidenced by the note, and that for the amount of the mortgage assumed by the purchaser. C. C. 2205.</p> <p>The holder of a note given by the purchaser for the price of property, secured by mortgage on other property, cannot recover interest from maturity, where the note was not protested. The mortgagee of property producing fruits is not entitled to legal interest, without a demand or an agreement to' that effect, as an equivalent for the fruits received from the property. Aliter, as to the vendee of such property. C. C. 2531.</p> <p>Interest in favor of creditors holding mortgages upon property surrendered by an insolvent, ceases to run from the date of the sale of the property.</p>

Eastern Dist. APPEAL PROM THE COURT OP THE EIGHTH JUDICIAL DISTRICT, POR THE PARISH OP ST. HELENA, THE JUDGE THERE OP PRESIDING. This is an action based on an agreement between the plaintiffs and defendant, by which the former sells to the latter a tract of land, estimated at upwards of four thousand five hundred dollars, and the latter, in consideration thereof, agreed to pay all the debts due by the plaintiffs’ firm, be they more or less.

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action on a bill of exchange, which the plaintiff alleges was given in payment of a bill of supplies and materials furnished the steam-boat Privateer, owned and commanded by the defendant.

Eastern Dist. AFPISAL FROM TIIE COURT OF FROBATES, FOR THE rARISII OF EAST FELICIANA. This is an action of nullity, to annul and set aside a judgment of the Probate Court, homologating the' account rendered by the curator of Sherwood B. Bonner, deceased.

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

Eastern Dist. AN APPLICATION TOR A MANDAMUS. This is an application 'for a mandamus. The widow of Jean Baptiste Labranche, residing in the parish of St. Charles, and within the first judicial district,. presented her petition to the district judge of said district, alleging that her husband died in said parish of St. Charles, leaving seven children, two of whom are minors.

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

Eastern Dist. . APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. In this case, the defendant, a resident of Havana, was sued and arrested in New-Orleans, in an action of debt, and fraud was alleged. The defendant’s counsel took a rule on the plaintiffs, .to show cause why the order of arrest should riot be set aside, and he discharged from custody, on the ground that he was a minor.

<p>Appeal from the Court of Probates of New Orleans, Ber-mudez;, J.</p> <p>contended that the amount allowed to the attorney of the absent heirs, was exorbitant, and should be reduced ; citing 3 Mart. 363. 6 lb. 416. 9 lb. 284.</p>

Western Dist. APPEAL FROM THE COURT OF THE SIXTH 'JUDICIAL DISTRICT, FOR THE PARISH OF NATCHITOCHES, THE JUDGE OF THE SEVENTH PRESIDING.

Rule on the Judge of the Court of Probates of New Orleans, to show cause why a mandamus should not be issued directing him to allow a suspensive appeal from a judgment rendered in the matter of the succession of George Asbridge, deceased. cited 11 La. 462 ; 3 Robinson, 6. showed for cause against the rule, that the amount of the claims of the different creditors, being each less than three hundred dollars, they could not appeal from the judgment rendered ; (Const, art. 4, s.…

<p>In ail action by an executor against the sureties of a former executor to recover money received by the latter belonging to the succession, defendants cannot plead in compensation a debt due by the deceased to their principal. The debt must be settled in the ordinary course of law, contradictorily with all the parties interested.</p>

<p>Western Dist.</p> <p>APPEAL PROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OP RAPIDES, TIIE JUDGE THEREOF PRESIDING.</p> <p>This is an action to recover the sum of one thousand one hundred and eighteen dollars,' for the lease of a plantation by the plaintiff to the defendant, for the term of one year, commencing the 1st of January, 1834. When the lease expired, the price remaining unpaid, the plaintiff instituted suit, and sequestered the crop. The defendant excepted to the sequestration, and prayed that it be dissolved and that the suit be dismissed, as having been prematurely brought. He then plead a general denial, and set up a claim against the plaintiff of five hundred dollars, &c.</p> <p>There is no evidence in the record, but judgment was rendered against the defendant, and after an unsuccessful</p> <p>attempt to obtain a new trial, on the ground of surprise, he appealed.</p> <p>prayed that the judgment of the inferior court be affirmed, with ten per cent, damages and costs.</p>

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

Rule on the Judge of the Commercial Court of New Orleans, to show cause why a mandamus should not be issued, commanding him to allow a fi. fa. to be taken out by the plaintiff, Garland, on a judgment recovered against the defendant, Holmes. showed cause against the rule.

Western Dist. APREAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT FOR THE PARISH OF RAPIDES, TIIE JUDGE THEREOF PRESIDING. The plaintiff alleges, he is the curator of one James West, deceased, who, in his life time, with one Sharpe, his partner, (now an absentee) built a gin house, etc., for the defendants, worth one thousand dollars, which they refuse to pay, although amicably requested to do so. He prays judgment for said sum. The defendants pleaded a general denial.

<p>Appeal from the Commercial Court of New Orleans, Watts, J."</p> <p>cited 7 Mart. N. S. 238, 616 ; Fagot v. Porche, 7 La. 562; BlancKard v. Cole, 8 La. 158; JonaU.Y. Ferrand, 3 Rob. 365 ; Low v. Thomas, 4 Rob. 183.</p> <p>The plea in reeonvention should ' be maintained. Code of Pract. art. 375; 10 La. 186; 18 La. 553 ; 6 Mart. N. S. 671 ; 7 Mart. N. S. 290, 291. The right to plead in reeonvention was not affected by the insolvency of Gil-dermeester. 1 Mart. N. S. 483.</p>

Western Dist. APPEAL FROM THE COURT OF TIIE SIXTH JUDICIAL DISTRICT FOR THE PARISH OF RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING, This is an action against the maker and endorser of a promissory note for eight hundred and sixty-four dollars, drawn by William H. Gill, and endorsed by the other two defendants in blank. The plaintiff is the holder, and prays judgment for the amount of the note in solido, against all the defendants.

Western Dist. APPEAL FROM THE COURT OF TIIE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF NATCHITOCHES, TIZE JUDGE OF TIIE DISTRICT PRESIDING.

The plaintiffs allege, that the defendants, Nicholson and Gar-diner, are indebted to them in the sum of $802 50, with legal interest from the 1st of January, 1842, for this : That plaintiffs being the proprietors of an infirmary in the city of New Orleans, known as the “ Circus Street Infirmary,” erected for the reception and treatment of the sick, entered into a contract, on the 28th of August, 1841, with Nicholson &.

<p>Tho Supreme Court held, in the case of Licquei’s Heirs vs. Peirce, ,5 Louisiana Reports, 361, that the supplemental petition of the heirs and legal representatives of a deceased plaintiff, (even after issue joined,) is in the nature of a revival of the action, rather than an amendment ;• and before the defendant can be ruled to trial, he must be notified by service of the new petition and citation.</p> <p>Where one of the eo-plaintiffs in a joint action, died after issue joined, the suit did not abate as to the others ; and an order to revive it in the name of the heirs and legal representatives of the deceased plaintiff being made contradictorily with the defendant: Held, that no service of the amended petition, and a citation or notice, on the adverse party, is necessary; nor even judgment by default is required, in order to proceed to final judgment.</p> <p>The Supreme theTcase of’xíc" guet’s Heirs vs. fma°e> Reports’, 36i, that the supplemental petition of the heirs sentatn-eVof1'^ d^eased^piain-issue joined,) is a" re\dvaf o’fthe Uianan a^endment; and be-■ant cau he ruled betifiedmby ■■service of the new petition and •citation.</p> <p>the^co-piaintíffs in a joint action, died atter issue joined, the suit totheodiers^and an order to rename of the representatives1 píaintifi'le°being made contradictorily -with tlie ■defendant: Held, that no service petition, and a on^the °adverse party is necessary ; nor even judgment by default is required, in order to proceed to final j udgmcnt.</p>

Western Dist. APPEAL FROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, POR THE PARISH OP RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action by the plaintiffs* suing as a commercial firm, and after issue joined, one of them died. An order was made and the case remanded from this court, with directions to the court below not to proceed to trial, until the representatives of the deceased plaintiff, (Babcock,) should be made parties to the suit. See 10 Louisiana Reports, 397.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING. This is a petitory action, in which the plaintiff claims title to lot No. 2, in square No. 12, in the town of Alexandria, and alleges that the defendants, Crain and Hunter, have taken possession and set up title thereto.

Western Dist. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF CONCORD'IA.

Western Dist. APPEAL EROÍH THE COURT OJ? PROBATES POR THE TAKISH OE ’CARROLL. In this case an appeal was granted, returnable to the October terra, 1837, of this court.

Western Dist. APPEAL PROM THE COURT OP PROBATES, POR THE PARISH OF RAPIDES. This is an action of partition, provoked by J. S. Stafford, one of the heirs of Le Roy Stafford, deceased, by a former marriage, against the widow and heirs of the last marriage, in which a partition by licitation of the estate of the deceased is prayed for, contradictorily with the executor under the will, and the said widow and heirs.

Western Dist. APPEAL FROM TIIE COURT OE THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CARROLL, THE JUDGE THEREOF PRESIDING. This is an action against the defendant, as the maker of a promissory note. The defendant admitted his signature, and pleaded a general denial; and by way of exception alleged, that the bank was not authorized to sue in the style and manner it had done.

contended that plaintiff, by failing to cause a day to be appointed on which the interrogatories should be answered, waived his right to have them taken pro confessis, on the failure to answer. Steioart v. Gaslin, 2 La. 72. Attain v. Truxillo, 14 La. 299.

<p>The residence of .an appellee may be shown, aliunde, by affidavit offered in the Supremo Court, to be in another state, and service of the process of appeal on his attorney will be good, notwithstanding he states in his original petition that “ he is a resident” of the state.</p> <p>In making service of petition and citation of appeal on the attorney of the appellee, the sheriff need not state the name, age and condition of the person he left them with at the attorney’s domicil. It is only necessary to return, that he left them at his domicil.</p> <p>The sheriff’s return is not required to state, that copies of citation and petition of appeal were left at the usual domicil of the appellee, when it is not shown he had several domicils.</p> <p>A curator ad hoc must be appointed to minors, or other persons intended to be sued, and who are without a curator ad lilis, or who are absent and not represented in the state.</p> <p>A reasonable time will be allowed for the return of a commission sent to a distant parish to take evidence; in a court of prohates, sitting monthly, a continuance should be granted with more facility than in a district court which only sits somi-annually.</p> <p>The residence of au appellee may be shown, alhmde, by afli-duvit offered in the Supreme Court, to be in another stale, and service of the process of appeal on his attorney will he good, notwithstanding* i he states in his original petition that “he is-a resident” of the state.</p> <p>In making service of petition and citation of appeal on the attorney of the ap-pellee, the sheriff need not slate the name', age, and condition of the person he left them with at the attorney’s domicil. It is only necessary to return that he left them at his domicil.</p> <p>The sheriff’s return is nut required to- state that copies of citation and petition of appeal' were left at the usual domicil of the appellee* when it is not shown he had severaldomicils-</p> <p>A curator ad hoc must he appointed to minor* or other persons intended to be sued, and who are without a tiv-Btós01orUwhoare ■ absent and not reuresented in the state.</p> <p>time wiTi^bc'ai-lowed for the return of a commission sent to to take evidence! in a court of Probates, sitting . monthly, a con-be'grantedtvith more facility than m a district court which only ally. semi-annu'</p>

This is not an action of trespass; nor does plaintiff sue for damages ; yet the court reasoning upon it as such, has affirmed the judgment below, which declared that there has been an implied sale of the property. That there was no such sale; see Hullin v. The Second Municipality, (11 Rob. 97.) The only question here is, as in that case, whether the acts of the Municipality authorized plaintiff to claim under an implied sale.

Western Dist. APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, POR THE PARISH OP NATCHITOCHES, THE JUDGE OP THE DISTRICT PRESIDING. ’ This is a petitory action to recover seventy-three acres of land, purchased from the government of the United States, by one S. Bordelon, as evidenced by the receiver’s certificate, dated 9th July, 1836, and by him conveyed to the plaintiff. He alleges, the defendant is in possession of a part of this land, and refuses to give it up.

The plaintiff alleges, that the defendants are indebted to him in the sum of $4100, with legal interest from 1st of December, 1836, for this, that said defendants did in or about that day take possession of a lot of ground belonging to him without any right so to do, converting it to their own and the public use, by making it part of a paved street called Roffignac street; “ so that said lot of ground is no longer the property of petitioner, who has a right to be paid the…

Western Dist. APPEAR FROM THE COURT OF THE NINTH JUDICIAI DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE THEREOF PRESIDING. This is an action by the holder or payee of a promissory note, signed by the defendant, and made payable at the office of discount and deposit, of the Planters’ Bank of Mississippi, at Port Gibson. The defendant pleaded a general denial.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF NATCHITOCHES, .THE JUDGE OF THE DISTRICT PRESIDING. This is an action on a promissory note, executed and signed by the defendant, the 16th August, 1822, for four hundred and one dollars, payable in all the month of March» 1823. The note was protested for non-payment, the 4th April, 1823. Suit was brought and citation served the 8th May, 1838.

, Watts, J. This suit was commenced by attachment against an absent defendant. Held: that the formalities prescribed by article 254, of the Code of Practice, stand in place of citation, and that they form the basis on Which all the subsequent proceedings in the cause must rest: the omission of them must therefore be fatal. Code of Pract. art. 206. 10 Mart. 472. 7 Mar. N. S. 160. 8 Ib.

Western Dist. APPEAL FROM THE COURT OP THE POURTH JUDICIAL DISTRICT (NOW 9tlp)f FO'R THE. PARISH OF CONCORDIA, THE JUDGE OP THE SECOND ¿RESIDING. This- is an action on a quantum meruit, in which the plaintiff sues as the assignee of John Evans, to recover the sum of two thousand three hundred and eighty-four dollars, for work and labor done, and materials furnished, in building for the defendant, a cotton gin and mill house, of large dimensions,, and of good workmanship.

<p>Western Dist.</p> <p>APPEAL FROM TIIE COURT OF THE SEVENTH JUDICIAL DISTRICT, FOR THE PARISH OF OUACHITA, THE JUDGE OF THE FIFTH PRESIDING.</p> <p>This is an action against the maker of a promissory note, for eleven hundred dollars, payable to the order of one Levi Guice, and by him endorsed in blank. The note was given for part of the price of a tract of land, for which a mortgage was retained to secure payment.</p> <p>The petitioner alleges, that Guice endorsed said note in blank and transferred it and the mortgage to E. K. Wilson, by a notarial act, who endorsed it in blank and assigned it and the mortgage by notarial act to Joseph Friend, who in like manner assigned and transferred the note.and mortgage to George' Row, and was by him transferred to the petitioner, without any endorsement or written assignment. He further alleges that he is the true owner of said note, but that G. W. Copley, his attorney, through error partially erased said endorsements: That the defendant afterwards mortgaged the land already mortgaged to secure the payment of this note, to one C. S. Abercrombie, of Mississippi, to secure a certain sum of money therein named, and that an order of seizure and sale had been obtained, and the land advertised to be sold under said last mentioned mortgage. He prays for judgment, and that the mortgaged premises be sold to satisfy the same, and that the ° “ r , , . r- xl . 11 proceedings under the order of seizure, taken out on Aber-crombie’s mortgage, be stayed and it declared null, as being made in fraud.</p> <p>The defendant pleaded a general denial, and res judicata. That judgment had already been obtained against him on said note by S. Guice the original payee; and that the mortgage in favor of Abercrombie is bond jide. He avers he has sustained damages to the amount of two thousand dollars by this vexatious proceeding of the plaintiff, for which he prays judgment in reconvention.</p> <p>On these pleadings and issues the case was tried. Upon the evidence adduced there was judgment for the plaintiff for the amount of the note, with mortgage, and the mortgaged premises to be sold, &c. The defendant appealed.</p>

Western Dist. APPEAL FROM THE COURT OF rR.OJBA.TES FOR THE PARISH OF OUACHITA'* This was an action on a merchant’s account, against the administrator ofWm. O. Knox’s estate, to recover the sum of three hundred and seventy-eight dollars apd seventy-six cents, according to an account annexed.

<p>Western Dist.</p> <p>APPEAL FROM THE COURT OF THE FOURTH J UDICIAL DISTRICT FOR TIIB PARISH OF CONCORDIA, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This suit is instituted on the following promissory note, against the endorsers, Edward R. J. Allnutt and John Briscoe.</p> <p>“ $,'2102 67. New-Carthage, La., 16th March, 183'5.</p> <p>“ On the first day of February next, I promise to pay John Briscoe, or order, two thousand one hundred and two dollars nnc* sixty-seven cents, for value received, negotiable and payable at the Agricultural Bank at Natchez, Mississippi.</p> <p>HENRY D. ALLNUTT.”</p> <p>Endorsed, “ JohN Briscoe,” and “ Edward R. J. Allnutt.”</p> <p>The plaintiff alleges, that said note was deposited in bank, where it was made payable for collection,, before maturity, and payment was amicably demanded and refused: wherefore, it was protested for non-payment and due notice thereof given to the endorsers, who have become liable. , He prays judgment against them for the amount of his demand.</p> <p>The defendants admitted their endorsement, but denied any liability to pay the note.</p> <p>The evidence showed that this note was protested on the 4th February, 1836, andón the next day notices of protest were put in the post office at Natchez, directed to John Bris-coe, Port Gibson, Edward R. J. Allnutt, New-Carthage.</p> <p>The original record of the book of protests in which the protest was recorded, was offered in evidence, received by the court, and excepted to by the defendants’ counsel.</p> <p>It was admitted in the statement of facts that Port Gibson was not Briscoe’s nearest post office. But letters addressed to defendant, Allnutt, at New-Carthage, had been received and answered by him.</p> <p>When Briscoe was called on to pay this note as endorser, a witness states that he said he would see the other endorser and arrange it. , They went together to see Allnutt, who said he would give other notes for the amount, but which was never done. 1</p> <p>Upon this evidence, judgment was given for the plaintiff, from which the defendants appealed.</p>

Western Dist. APPEAL PROM TIIE COURT OF TIIE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE THEREOF PRESIDING. This is an action against the maker of the following promissory note. The plaintiffs, B.riggs, Lacoste & Co., are a commercial firm, and residing in Natchez, Mississippi. “ $1333 1-2.

<p>Defendants being authorized by their charter to construct a road on each side of a bayou, and to charge certain tolls thereon, contracted with plaintiffs for the construction of a road on one side, in consideration of conceding to them the tolls thereon for a certain number of years. Plaintiffs were to be at all the expense of the construction and repairs of the road, and, at the expiration of the time fixed on, it was to become the property of defendants. The contract was silent as to the right to make a road on the other side of the bayou. Defendants having constructed a road on the other side of the bayou, before the expiration of the time during which plaintiffs were to receive the tolls on the road constructed by them, an action was commenced by the latter for damages: Heidi that to entitle plaintiffs to recover they must clearly establish a renunciation by the defendants of their right to construct a second road ; and that it is not enough to make it public, that the right was intended to be renounced.</p>

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

Western Dist. APPEAL FROM THE COURT OP THE NINTH JUDICIAL DISTRICT, POR THK PARISH OP CONCORDIA, THE JUDGE THEREOF PRESIDING. This is all action on the following promissory note : “$6,666. ' Rodney, Miss., January 1, 1835. “ Two years after date, I promise to pay J. B. Warren, or order, six thousand six hundred and sixty-six dollars, without defalcation, for value received, negotiable and payable at the Planters’ Bank of Mississippi, at Natchez.

<p>The letters ol a party acknowledging that, in consideration of a certain sum, a third person had become jointly and equally interested with him in the purchase of real estate held in his name, and agreeing, for a fixed price, to convey to the same person one-half of his interest in a purchase of other, lands, is evidence of a sale as between the parties, and the lands may be mortgaged by the purchaser, or subjected to legal mortgages as his property. Per Curiam: a sale, as between the parties, is complete as soon as there exists an agreement as to the object and the price, though the object be not delivered, nor the price paid, (C. C. 2413, 2431); the only formality required by law, as between the parties, is that the sale, when of immoveables, shall be in writing. C. C. 2415.</p> <p>A promise to sell amounts to a sale, where there exists a reciprocal consent of both parties as to the thing and the price thereof. C. C. 2437.</p> <p>An authority to sell real property and to apply the proceeds in a particular way, unexecuted at the time of a cessio bonoruvi by the principal, is revoked thereby</p>

<p>All the parties in a suit, who have an interest to maintain the judgment, must be made parties and cited in the appeal, or it Will be dismissed ; so warrantors must be cited, even when there is judgment for the defendant.</p> <p>Where a decision on a point of practice is known and made public, no delay will be allowed the party to avail himself of it, at the trial of the appeal.</p> <p>All the parties in a suit, who have an interest to maintain the judgment, mupt be made' parties, and cited in the appeal, or it will he dismissed: so, warrantors must be cited, even when there is judgment for. the defendant.</p> <p>"When a decision on a point of practice is known and made public, no delay will be allowed the party to avail himself of it, at trial of the appeal.</p>

Western Dist. APPEAL FROM Till? COURT OR THE SIXTH JUDICIAL DISTRICT FOR THE PARISH OF AVOYELLES, THE JUDGE OR TIIE SEVENTH PRESIDING. This case comes up on an. injunction obtained by the plaintiff, to stay an order of seizure and sale, taken out by the executor of George Gorton, deceased, on certain notes secured by mortgage.

Western Dist. APPEAL FROM THE COURT OF THE SEVENTH JUDICIAL DISTRICT, FO-R. THE PARISH OF OUACHITA, THE JUDGE OF THE SIXTH PRESIDING. Tliis is a petitory action to recover a tract of land in the possession of the defendant. On trial, after the pleadings and issues were made up, and evidence adduced, the defendant had judgment, from which the plaintiff appealed.

Western Dist. APPEAL FROM THE COURT OF THE SEVENTH JUDICIAL DISTRICT, FOR THE: PARISH OF OUACHITA, THE JUDGE OF THE SIXTH PRESIDING.

<p>Western Dist.</p> <p>AMEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.</p> <p>This is an action instituted by the legal heirs of Mrs. Ellen Innis, deceased, against her executors, to annul and set aside her last will and testament.</p> <p>The plaintiffs allege that the will is null, for want of the essential formalities required by law, because it is not stated that it was dictated by the testatrix ; of its having been read to her in the presence of the notary and witnesses, by whom it was written, and that it does not state all the formalities were gone through without interruption, and turning aside to other business ; that the testatrix knew not how to write, yet no mention is made of her declarations to that effect, or the reasons for not signing her name; and, in fact, none of the formalities of law. have been complied with, either, in the making the will or admitting it to probate. The plaintiffs further state, that the will contains a substitution andjMei commissum, which is reprobated by law.</p> <p>The plaintiffs further allege, that they are the brothers and sisters, and other heirs at law of the testatrix, and as such entitled to inherit her estate ; that the executors have gone on to administer and take into their possession, all the property of said estate, and have rendered no account, and that ,no partition has been made thereof.</p> <p>Wherefore, they pray that the executors and all those who claim under the will be cited ; and that the said will and the probate thereof, be annulled and set aside as illegal, and informal; that they be recognized as heirs, and the executors required to render an account of their administration, and the property of the estate ; and that a final partition 'be made between all the legal heirs and- representatives of the deceased, Mrs. Ellen Innis. Finally, that the executors be ■condemned to pay five thousand dollars damages, and thirty thousand dollars for the use, enjoyment, interest and profits of the said estate.</p> <p>The defendants pleaded a general denial, and further averred, that, the will attacked in the petition is good and valid in law; and that they have a good and valid title under the will to all the property of the deceased, and which is claimed by the plaintiffs. They pray that the said will be confirmed and established.</p> <p>Upon these pleadings and issues the cause was tried before the judge of probates.</p> <p>The Will. — “ I, Ellen Innis, do make and ordain this my last will and testament: first., to my beloved husband, Alexander Innis, I give and bequeath all my property, both real and personal, during his natural life ; and at his death I give and bequeath the whole of my property, both real and persona], to my brothers, John L. Baillio and Auguste Baillio, to be equally divided between them, except two thousand dollars, which I give to John Westley, an orphan boy, whom I have raised, and who is at this time with me ; the money to be put out at interest by my executors hereafter named, and be given to him when he arrives at the age of twenty-one years.</p> <p>“ Lastly, I nominate and appoint my beloved husband, Alexander Innis, and my brother, John L. Baillio, executors of this my last will and testament, hereby revoking all others, etc.</p> <p>“ In testimony whereof, I hereto subscribe my name, in presence of the undersigned notary public, and the three subscribing witnesses, who were called at my request, at Alexandria, this 5th May, 1837.</p> <p>Hex</p> <p>« ELLEN M INNIS.”</p> <p>Mark.</p> <p>“ Mrs. Innis not being able to write her name, I have done it at her request. ' “ J. B. SCOTT.</p> <p>“ Done before me, - - J. B. SCOTT, Notary Public.</p> <p> Witnesses. </p> <p>“ James Bowie,</p> <p>“ S. E. CUNY,</p> <p>"J. B. IIenno.</p> <p>“ JVe varietur.” “ J. íi. J. Parish Judge.”,</p> <p>On the 17th November, 18S4, the judge of probates for the parish of Rapides, states in his procés verbal, that Alexander Innis, one of the executors of Mrs. Innis’s will, came into court, and requested that the last will and testament of Mrs. Ellen Innis, heretofore deposited in" the office of the parish judge, etc., be opened, proved, and admitted to record ; and the death of Mrs. Innis being proved, and the will opened, came Stephen E. Cuny, one of the subscribing witnesses to the will, who being duly sworn and examined in presence of J. B. Scott, notary public, deposes and says, he recognizes the testament presented to him, as being the same executed in his presence, by Mrs. Ellen Innis, by making her ordinary mark thereto; that he recognizes his signature as one of the witnesses to said will, as well as the signature of James Bowie, and J. B. Henno, the other subscribing witnesses, the former of whom resides out of the United States, and the latter is dead ; and that the will was signed in tlreiv presence. The will was then read in a loud voice, and paraphed by the notary. -</p> <p>S. E. Cuny, one of the witnesses to the will, was called and sworn on the trial, and testified to the execution of the will, and to the signatures of the other witnesses, Bowie and Henno, who were dead ; that the will was written and signed by the testatrix, on board of a steam-boat then lying at the town of Alexandria ; that the steam-boat left a very short time after signing the will; that the will was read to the testatrix in the presence of the witnesses, and that she was unable to write at the time. Witness supposes the population of Alexandria in 1827, was between five and seven hundred, one half blacks ; that there were from fifty to a hundred white men residing in Alexandria.</p> <p>J. B. Scott, a witness, and who signed the will as a notary, says, Mr. and Mrs. Innis desired him to make their wills ; that she wished to give her property to her husband during his life, and - Mr. Innis wanted to givé his to his wife during her life, with the exception of some donations ; that Mr. and Mrs. Innis were on board a steam-boat in Red River, at the landing at Alexandria, on their way to the North ; that Mrs. Innis was unwell, and they both wanted their wills written immediately as the steam-boat was about starting1. He wrote the will and read it to Mrs.’Innis, in presence of the witnesses, who declared it to be her last will and testament. She, not being able-to "write,, made her mark. Thinks they had some difficulty in gétting the witnesses' they did get. All the parole testimony was objected and excepted to by plaintiff’s counsel, as inadmissible, against a written instrument, etc.</p> <p>A plan cff the town of Alexandria, was in evidence, to show the steam-boat lay out of the town limits, and that the will was made in the country.</p> <p>1 Upon the whole evidence, the judge of probates was of opinion' the will was good and valid as a nuncupative will, under private signature. Judgment was rendered, confirming and establishing the will, from which the plaintiffs appealed.</p>

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

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

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

<p>No appeal will lie from a judgment dissolving an injunction obtained to restrain the levying of a tax, where the opposite party is required, as the condition of its dissolution, to give security for the reimbursement of any sum which may be paid by plaintiffs, in case there should be a judgment in their favor. The judgment is interlocutory, and does not work irreparable injury.</p>

The petitioners represent that they are the heirs of Claude Joseph Dubreuil Yiliars and his wife, the latter of whom died in the year 1750, and the former in tbe year 1757; that at the… Held: that art. 43 of the Code of Practice did not apply, because the lessor lived out of the State. Do the United States reside out of the State 1 That “ a sovereign, as such, has no immunity from suit as to lands within the territory of another, and a foreign sovereign,” is not disputed.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action to enforce a verbal lease, or an innominate contract.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR TIIE PARISH OF NATCHITOCHES, TIIE JUDGE OF THE FIFTH PRESIDING. This is an action to recover half the prize of ten thousand dollars, drawn to a lottery ticket, No. 13, 10, 23, in a lottery drawn on account of the defendants, in New-Orleans, the 28th July, 1832.

Western Dist. •APPEAL FROM THE COURT 017 THE SIXTH JUDICIAL DISTRICT, FOR THE 1'AlllSH OF RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action for damages occasioned by the defendant’s stopping up the drains of his plantation, and to have the same kept open.

Western Dist. AITEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action to recover the price of a house and lot, which the plaintiff alleges he sold to the defendant, for the sum of four hundred - and seventy dollars, with ten per cent, interest, from the 18th October, 1831.

Troplong, Prescrip. No. 807. Merlin,Repert. verbo, Prescription. Ib.Questionsde Droit, Succession Vacante, § 2. Civ. Code, art. 3492. Durnford v. Clarke, 3 La. 201. Sainare v. McDonough’s Ex’r. 6 La. 357. And this, whether solvent or not, 3 La. 201. All the provisions of the Code relative to the administration of estates by curators, syndics, administrators, &c. contemplate necessarily .a suspension of prescrip-on. Civ.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING. Held: or to the sheriff of the parish where the party or parties may reside ; Provided, the party or parties have a residence in the state, but if the party or parties have no known place of residence in the state, then the service shall be made on the attorney ad hoc, which the court shall appoint to represent the absentees;, and after…

<p>Appeal from the District Court of Lafourche -Interior, Deb-lieux, J.</p>

<p>A talc collector cannot be required to receive in payment of taxes, coupons, or warrants for the semi-annual interest due on certain bonds of the State, executed in favor of a bank, though the State be bound to pay the interest on the bonds, where the party taxed does not show himself to be the owner of the bonds, and the coupons or warrants purport to have been issued, and to be payable by the bank, and the laws authorizing the issuing of the bonds in favor of the bank, give it no power to issue such coupons or warrants in the name of the State.</p>

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

<p>Where the value of property seized under a filfa, from a Parish Court, exceeds the sum to which the jurisdiction of the court is limited, an injunction may he obtained, by one claiming to be the owner of the property, from a District Court. The circumstances of the case make it a necessary exception to the provisions of arts. 397, 617, 629 of the Code of Practice.</p>

<p>To enable a party to recover the amount of a promissory note alleged to have been deposited with defendant as collateral security, the proceeds of which, exceeding five hundred dollars, were received by the defendant, with whom it is alleged that the note was deposited as collateral security, the deposit must be proved by the testimony of at least one witness, supported by corroborating circumstances.</p> <p>lu an action to recover the proceeds of a note deposited as collateral security, plaintiff will be entitled to interest on the amount of the note from maturity, where the note was protested at maturity, and defendant acknowledged the receipt of the amount due on it*</p>

<p>Appeal from the District Court of Pointe Coupée, Deblieux, J.</p> <p>cited B. & C.’s Digest, p. 157, § 33. 16 La. 257.</p>

<p>Appeal from the Court of Probates of West Baton Rouge, Favrot, J.</p>

<p>Appeal by the plaintiff from a judgment of the District Court of Iberville, in favor of the defendants, Deblieux, J.</p>

<p>Appeal from the District Court of Terrebonne, Dehlieux, J.</p>

Western Dist. APPEAL PROM THE COURT 01? THE FOURTH JUDICIAL DISTRICT FOR Til31 PARISH OF CARROLL, TIIE JUDGE OF TIIE SECOND PRESIDING.

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

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

<p>If the term to which the appeal is made returnable, entirely fails, it will be in time to file the record within the first three judicial days of the succeeding term.</p> <p>Where there was no entire failure of the term,, to which an appeal was returnable, and the court was opened on three several days, although it transacted no business, yet the record should have been filed within that time, and not having been done, the appeal was dismissed.</p> <p>If the teem to which the appeal is made returnable entirely fails, it will he in time to file the record within the first three judicial days of the succeeding term.</p> <p>Where there was no entire failure of the term, to which an appeal was returnable, and the court was opened on three several days, although it transacted no business, yet the record should have been filed within that time; and not having been done, the appeal was dismissed.</p>

<p>District Courts have jurisdiction of actions against the curator of an interdicted person to recover a claim against the person interdicted.</p>

Western Dist. APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, POR THE PARISH OP NATCHITOCHES, THE JUDGE OP THE SEVENTH PRESIDING. In this case, judgment was rendered against the defendant, at the spring term of the Natchitoches district court, 1838, and he appealed to the succeeding term of the Supreme Court, to be holden at Alexandria.

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

<p>A testator leaving three or more children, or the descendants of three or more children, cannot dispose by donation mortis causa of more than one-third of his property. C. C. 1480.</p> <p>Grandchildren, forced heirs of the testator by representation of their mother, are bound to collate any legacy made to them by the testator, unless expressly made as an advantage over .their co-heirs and besides their legitimate portion. C. C. 1306, 1307.</p>

Western Dist. SlPEiL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE OF THE DISTRICT PRESIDING. This is a petitory action, in which the plaintiff sues to recover a piece of land in the possession of the defendant, who insists in running his line in a diagonal direction, so as to take a hundred and eighty-five acres off the rear of the plaintiff’s tract, which adjoins him immediately above, on the Mississippi river.

<p>Appeal from the District Court of Pointe Coupee, Deblieux, J.</p>

<p>Appeal from the District Court of Pointe Coupeé, Deblieux, J.</p>

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

Western Dist. _APPEAL PROM THE COURT OF TUB FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, TIIE JUDGE OF THE SECOND PRESIDING. This is an action to render the sureties in a bail bond liable, given for the appearance of M. Johnson, charged with the murder of Thomas Ash. Johnson was admitted to bail the 5th April, 1836, for his appearance at the June term following, of the Concordia court.

<p>Appeal by the plaintiffs from a judgment of the District Court of the First District, Buchanan, J.</p>

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

Western Dist. APPEAL PROM THE COURT OP TIIE SIXTH JUDICIAL DISTRICT, POR THE PARISH OP RAPIDES, THE JUDGE OP THE SEVENTH PRESIDING. ’ This case comes up on a motion to dismiss the appeal. On the 22d day of October, 1829, the plaintiffs instituted their petitory action, against Jesse Hudson, for the recovery of sixteen hundred arpents of land.

Western Dist. 4ITEAL FROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, POR. THE PARISH OP RAPIDES, TIIE JUDGE OF THE SEVENTH PRESIDING. The heirs of Frances Pannell, deceased by their tutrix, bring suit and oppose the homologation of a sale of a tract of land, containing five hundred arpents on bayou Wacksha, in the parish of St. Landry, and which she alleges was confirmed to Mrs. Frances Pannell, on the 29th day of April, 1816.

The appellants, Hawthorn and Woods, the sureties on the attachment bond, are not liable, because the attachment issued in a suit, the subject matter of which was not a contract, but damages for a… Held: that the remedies of arrest and attachment, being onerous, must be strictly construed. Iu 1 Martin, 65, is the case of a writ of arrest issued in a suit claiming da nages for slander.

<p>Where the purchaser of a tract of land sells during the pendency of a suit to evict him, without recourse in warranty, and divests himself of all title before final judgment of eviction, he is without interest, and cannot claim of his vendor, a diminution of the price which he contracted to pay.</p> <p>When the surety in an injunction is before the court on appeal, no judgment for interest or damages can be pronounced against him on dissolving the injunction.</p> <p>The act of 1831, relative to injunctions, does not say from what date the interest is to run, when they are dissolved, but in this case it is computed from the time the judgment was rendered in the court below.</p> <p>purchaser of a pendency of a suit to evict him, vithoutrecourse ^sts^lm^elf of'aii title before final judgment of eviction, heis ImfcúnnotS h.is yenclor % diminution ot the price which he contracted to 1)ay,</p> <p>When the surety in an injunction is before the court ,on appeal, no judgment for interest or damages can be pronounced against him on dissolving the injunction,</p> <p>The act of 1831 relative to injunction, does not say from what date the interest is to run, when they are dissolved, but in this case it is computed from the time the judgment was rendered in the court below.</p>

Western Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF OUACHITA. This suit commenced in an opposition made by the heirs of Ward to a monition taken out by R. H. Bowmar to per-feet the sale of a tract of land, sold at the probate sale of John Ward’s estate. After hearing the evidence and the parties, the probate judge gave judgment overruling the opposition, sustained the intervention of G-uice, and homologated and confirmed the sale.

This is an action to recover the value of a slave belonging to the plaintiff, and killed by the defendant. The plaintiff alleges, that the defendant killed his slave Henry, a good and peaceable servant, without any just or legal cause whatever, and refuses to pay the value thereof. He alleges his value to be seventeen hundred dollars, for which he prays judgment.

Western Dist. APPEAL PROM THE COURT OP PROBATES FOR THE PARISH OP OUACHITA. This suit was instituted by the appointment of R. F. M'G-uire, curator ad hoc, by the judge of probates for the Parish of Ouachita, with directions to prosecute the removal from office, of Mrs. Elizabeth Ross, tutrix of her minor grand children, for malfeasance in office, and to require her to render an account of her administration.

Western Dist. APPEAL PROM THE COURT OF TI-IE SIXTH JUDICIAL DISTRICT FOR THE PARISH OF RAPIDES, THE JUDGE OF TIIE FIFTH PRESIDING. This is an action of waste, to recover damages of the defendant for cutting and taking timber from a back concession of land, which the plaintiff alleges lies immediately behind his front tract, and to which he is entitled by preference, and has made all the necessary preparations to enter and purchase it from the government of the United States.

<p>Appeal from the District Court of the First District, Buchanan, J.</p> <p>It is contended that the defendant is a married woman, and that, as there is no evidence that the “ contract was converted to her benefit,” she is not bound by it.</p> <p>This argument is founded on some decisions heretofore rendered by this court. Upon reference to those cases, it will be found, that they all refer to the case of Durnford v. Gross and Wife, 7 Mart. 465. That case was decided under the Spanish law, and is based exclusively on the 61st Law of Toro, of which it quotes the very words ; but that law was repealed in 1828, and our present laws contain no restriction on the power of married women to contract, such as was contained in it, to wit: “that the contract must be proven to be beneficial• to them." On the contrary, under our present system, the law on this subject is, that married women may contract in all cases with the consent of their husbands. Civ. Code, arts. 1775, 1779. She may purchase for the community. Civ. Code, art. 2371. Our whole legislation on the subject of the relations of married persons clearly recognizes the full capacity of the wife to contract, when authorized by her husband, and if separated from him in bed and board, without his authority. Civ. Code, art. 125. Nay, so far from imposing upon her the restrictions contended for by defendant’s counsel, the law even goes the length of enabling a married woman, if she be a public merchant, to contract, without being empowered by her husband. Civ. Code, art. 128. Speaking of the community, our Code says, that it consists of property acquired during the marriage, “ even although the purchase be only in the name of one of the two.” Art. 2371. All these articles demonstrate the policy of our present laws to be, to enable the wife to contract in all cases with the authority of the husband ; and nowhere in the Code can the restriction of the Spanish law be found, that the contract must be shown to have enured .to her separate bene■fit. On the other hand, it is equally clear, that any debts thus contracted by her are community debts. Civ. Code, art. 2372. Code Nap. 1409, 1426. Consequently she may escape responsibility ultra vires of the community, by obtaining a separation of property during the marriage; (Civ. Code, arts. 2399, 2404;) or by renouncing the community after the dissolution. Art. 2379.</p> <p>Art. 2412 is explained by art. 1784. They are both intended to prohibit married women ftom becoming sureties.for the debts of their husbands. It is not pretended that such was the case in the present instance. On the contrary, the defendant’s answer and the evidence show, that the note was given for a debt of her own. If the wife could make the contract at all, certainly her husband’s joining her in it did not affect its validity. If she could give a stranger as her security or endorser, certainly she could give her husband.</p> <p>The question as to the ultimate liability of the wife beyond the assets of the community, can in no degree affect the legal character of the contract. Is the contract such a one as the wife, under our present system of laws, could, with the authority of her husband, enter into ? This is one question. How can the wife exonerate herself from the obligation incurred by the contract 1 That is another and a very different question. The fact of the wife being able hereafter to shield herself from personal responsibility by obtaining a separation of property, or by renouncing the community, is not at all inconsistent with the proposition that the contract, per se, is legal, and one which she is perfectly competent to make. Non constat, that the community is not amply sufficient to meet the obligation. And non constat, that the wife, even if the community should prove insufficient, will renounce. The future action of the defendant has nothing to do with her capacity to make this contract; and whether she can hereafter devise means to escape any responsibility, beyond the assets of the community, is a question which may arise at the proper time. “ Sufficient for the day is the evil thereof.”</p>

Western Dist. APFEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action of boundary and jactitation of title, in which damages are claimed.

contended that the act of SO March, 1842, § 4, is unconstitutional. Const. N. S. art. 1, h 8, 9, 10. 1 Kent’s Comm. 425 td 428. 2 Story on Const. 1030 to 1035. Brown v. State of Maryland, 12 Wheat. 419. on the same side, contended that the legacy to the appellant was void, as Mager could not, by the laws of France, have inherited from her.

<p>Where the petition alleged “ that at the proper time, due and legal demand was made of payment of the note, at the proper place, and payment refused,” — the note being annexed as part of the petition, it was deemed a sufficient allegation of a demand to let in proof of it.</p> <p>tition 1 alleged perüme^due^and leSa! demand was made ot payment of the note place,6amTpay-™ent reused, the note being annexed as part °twafdeemeda th^dfademlnd to let in proof of</p>

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OE RAPIDES, TIIE JUDGE OF THE SEVENTH PRESIDING. This is an action against the maker of a promissory note, payable at the counting house of Thomas Barrett & Co., in New-Orleans. The plaintiff alleges, that by the note and protest annexed, and making part of the petition, “due and lawful demand of payment hath been made without effect.” He prays for judgment.

Western Dist. APPEAL PROM THE COURT OF PROBATES, POR THE PARISH OP OUACHITA. This is an action of partition. The petitioner alleges that he is one of the legal heirs of William Mason, who died in the Parish of Ouachita in 1836, but formerly resided in Alabama. That the decedent left a widow by his second marriage, a minor son and a grand-daughter, residing with her father and guardian in Georgia.

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

<p>Appeal by the defendant from a judgment of the District Court of West Baton Rouge, Dehlieux, J.</p>

<p>Appeal from the Parish Court of West Baton Rouge, Fav* í ot, J.</p> <p>cited act of 8 Februarjq 1831, § 4, Bul. & Curry’s Digest, 764. Newcomb v. Police Jury of Easl Baton Rouge, 4 Rob. 233.</p>

<p>A party to the record is inadmissible as a witness.</p> <p>An overseer being entitled to one-fourth of the crop for his services, a creditor of the owner of the plantation seized under a fi, fa. three-fourths of the growing crop, and became the purchaser thereof at the sheriff’s sale. In an action by the overseer against the purchaser : Held, that the seizure did not operate as a partition bettofeen the overseer and his employer, nor restrict the right of the former to the fourth not seized ; and thht the ptirfchaser, acquiring no greater right than his debtor had, is liable to the overseer for one-foúrth of the price for which the three-fourths of the crop were sold.</p>

, J contended, that to say there was no privilege allowed to the city of Lafayette for taxes on property within its limits, would frequently deprive the corporation of the power of collecting any taxes whatever on mortgaged property. 9 Bing. Rep. 128. I-Ioke v. Henderson, 8 D. M. C. Rep. 17. 3 Blackstone, 435. Civ. Code, art. 3245,

<p>Western Dist.</p> <p>APPEAL FROM TIIE COURT OF PROBATES FOR THE PARISH OF CONCORDIA.</p> <p>This is an action instituted in the Court of Probates, by a portion of the heirs of Aaron Brooks, deceased, against another portion of the said heirs for a settlement and partition, and to recover the portion of his succession that may be due to them.</p> <p>The defendants pleaded a general denial, and aver that all the property claimed is owned exclusively by them; and that they have owned and possessed it for many years, by a just and legal title, and that said plaintiff’s have no legal right or title whatever.</p> <p>They further plead that the Court of Probates has no jurisdiction of the case, and possesses no power to judge of the.rights between the parties, wherefore they pray that the suit be dismissed.</p> <p>Upon this issue the judge of probates sustained the plea to his jurisdiction, and rendered judgment dismissing the suit.</p> <p>The plaintiffs appealed.</p> <p>The citation of appeal was issued and signed by William L. Poindexter, as clerk of the Probate Court. It appears there is no law authorizing the probate judge of this parish to appoint a clerk of his court.</p> <p>On the back of the citation, the attorneys for the appel-lees endorsed, “We hereby accept service of the written citation, and petition of appeal annexed.” — “ Vidalia, 25th August, 1837.”</p> <p>moved to dismiss the appeal, on the ground of the insufficiency of the citation.</p>

Western Dist. APPEAL FROM THE COURT OP PROBATES POR THE PARISH OP OUACHITA. This is an action to recover damages from the estate of the late J. M. Faulk, deceased, for neglecting to perform his duty as attorney for absent heirs, in the matter of J. Brown’s estate which was opened, and a curator appointed to administer on it in the parish of Ouachita.

Code of 1808, p. 346, art. 4. Civ. Code, 2431. French Code, 1583. We attack the sale to the defendants, because it was the sale of the property of another, and therefore null. Code of 1808, 348, art. 20. Civ. Code, 2427. French Code, 1599. These articles are literally the same in the three Codes. The defendants assert, that the property never was delivered to us, an assertion which we shall experience no difficulty in refuting.

Western Dist. APPEAL FROM THE COURT OF THE SEVENTH JUDICIAL DISTRICT, FOR THE PARISH OF OUACHITA, TIIE JUDGE THEREOF PRESIDING. This is an action on a bail bond. The defendant became the surety or bail for one F. Fo}7, for the payment of the sum of three hundred and forty-one dollars, and the costs of suit, or such judgment as might be rendered.

<p>Western Dist</p> <p>APPEAL FROM TIIE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, TIIE JUDGE OF THE DISTRICT PRESIDING.</p> <p>This is a redhibitory action. The plaintiff alleges, that in April 1835, at New Orleans, he purchased from one William H. Fitzgerald, of Pittsylvania county, Virginia, a number of slaves, amongst them Daniel, for eight hundred and fifty dollars, Winney for six hundred and fifty dollars, and Billy for eight hundred and seventy-five dollars, making in all two thousand three'hundred and seventy-five dollars, which said slaves were warranted and guaranteed against all redhibitory vices and defects by the defendant. That Daniel was afflicted with diarrhoea or an incurable disease, of which he died; Winney had the same disease of which she died ; and that Bill was afflicted with a scrofulous and other incurable diseases, which has occasioned him to linger and become wholly useless; and that he would not have purchased said slaves, had he known or been informed of their diseases, all of which the defendant knew and concealed from him.</p> <p>He further shows that he has suffered damage in consequence of said fraud, amounting to fifteen hundred dollars, and sustained a loss of fifteen hundred dollars, in the cost of maintaining and supporting said slaves, and furnishing them medical aid, which, added to their price, amounts to five thousand three hundred and seventy-five dollars. That the said Fitzgerald lives out of the state, and absented himself immediately after the said sale, and has no known agent or attorney in fact within this state, upon whom demand could be made or. process served. He prays that a curator ad hoc be appointed to represent the defendant, and that he have judgment rescinding the sale of said slaves, and for the return of their price and the damage he has sustained.</p> <p>The curator ad hoc appointed to defend, put in an exception denying the jurisdiction of the court in such a case as this, and praying that the suit be dismissed.</p> <p>Upon this exception to the jurisdiction, the cause was dismissed.</p> <p>The plaintiff appealed.</p> <p>relied on the Louisiana Code, article 57, Code of Practice, article 116, and the case of Za-charie vs. Blandin, 4 Louisiana. Reports 154, in support of this case.</p> <p>insisted that the court had no jurisdiction of a person residing in another state, who never resided or had a domicil or agent here, and who was without any interest or property in the state, and has never been here at or since the inception of this suit. — 3 Martin, N. S. 321.</p> <p>2. The article 57, of the Louisiana Code, gives no jurisdiction in a case like this; it must be taken in connexion with all the other articles preceding and succeeding it, and they all point to property or a domicil left by the absentee. Article 414 explains article 57.</p> <p>3. This court has decided that defendants (absentees like Fitzgerald) could not plead prescription, because by their absence the plaintiff could not bring suit. Contra non Valen-tem agere non currit prescripts. Now,if, as is pretended here, the plaintiff could have brought suit by the appointment of a curator ad hoc, then the court should have decided the plea of prescription to be good. See cases of Morgan vs. Robinson, 12 Martin, 76. Guillet vs. Emin, 7 Louisiana Reports, 580.</p>

Western Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF OUACIIITA. The plaintiffs, who are the widow and her second husband, as co-tutor of the minor child, and sole heir of the deceased, John S. Scriber, made opposition on various grounds, to the administrator’s account. The defendant filed his final tableau and account of the administration of the decedent’s estate, and prayed that it be homologated, his bond cancelled and he discharged.

Western Dist. AITEAL FROM THE COURT OF PROBATES FOR THE PARISH OF OUACHITA. This case comes up on an opposition to the application of A. Bodin, Esq., to be appointed dative testamentary executor to the estate of Michel G-. Pomier, deceased. He alleges he is the attorney of the absent heirs of Franqois Gallez, who was one of the instituted heirs, and named by the executor in the will.

Western Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF OUACHITA. This is an appeal from the judgment of the Court of Probates, homologating and confirming a judicial sale.

Western Dist. APPEAL FROM THE COURT OF THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE THEREOF PRESIDING. This suit commenced by order of seizure aird sale, granted on the following promissory note, secured by mortgage : “ $4089. Concordia, 1st July, 1837.

Western Dist. APPEAL PROM THE COURT OP PROBATES POR THE PARISH OP RAPIDES. This i'á an action, in which the plaintiff alleges he is the natural tutor of his minor child, and calling on the defendant, who is the administrator of his deceased wife, to render an account of his administration, to deliver over certain notes* and a slave; and pay up any balance of moneys, both principal and interest remaining in his hands belonging to said minor.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT FOR THE PARISH OF RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING. This is an action against the endorsers of a promissory note. At the trial the plaintiff obtained leave of the court to strike out some special endorsements, following the signatures of the defendants. It was objected to by the defendant’s counsel, and permitted by the court. There was judgment for the plaintiff, and the defendants appealed.

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

contended, that the plaintiff was not authorized to act as tutor, not having been sworn as required by law. Civ. Code, art. 328. Code of Pract. art. 949.

<p>An inspector of elections who has illegally and maliciously prevented one from voting, will be responsible to the latter in damages.</p>

Appeal by the plaintiffs from a judgment of the Court of Probates of West Baton Rouge, Favrot, J. This was an action by the plaintiffs, to annul the will of Mary McCalop, deceased. The judgment below sustained the will.

<p>Appeal from a judgment of the District Court of Iberville, Deblieux, J.</p>

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

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

Helena, Jones, J. The defendant Carruth, appealed from a judgment rendered in favor of the plaintiffs, declaring them entitled to certain slaves sued for, and allowing them $1296, as damages against him individually. The judgment was in favor of the other defendant. The rule in Shelley’s case, does not apply to wills. Fonblanque on Equity, 62, and notes. 4 Vesey, 227. Croke Jas. 590. Noyes v. Richardson, 2 Mass. 63.

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

contended, that the judgment should be reversed on the ground that the damages were excessive, as the whole amount of injury sustained, admitting the defendants to have acted illegally, could not exceed two or three hundred dollars. urged, that the judgment should be maintained. The damages were properly allowed. In an action against a wrong-doer for aggravated injuries, the amount allowed as damages should not be restricted to the aetual loss.