Volume 14 — Louisiana Reports

Eastern Hist. IN ERROR FROM TIIE SUPREME COURT OF THE EASTERN DISTRICT OF LOUISIANA, TO THE SUPREME COURT OF THE UNITED STATES. This case was taken by writ of error to the Supreme Court of the United States, from the judgment pronounced by this court, at the March term, 1S37. See 11 Louisiana Reports, 1. 13 Peters’ Reports, 409.

Eastern Dist. APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action on a bill of exchange for one thousand two hundred and thirty-four dollars, drawn by C. D. M’Call & Co., of Montgomery in Alabama, to the order of the plaintiffs, on B. Boyken, of Mobile, and was protested for nonacceptance.

<p>Eastern Dist.</p> <p>APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITV OP NEW-ORLEANS.</p> <p>This is an action on three several promissory notes, executed by the defendants in New-York, the 11th October, 1836, payable in eight, ten and twelve months after date. The suit commenced by attaching property and effects in the hands of Messenger, Chittenden & Bailey, in New-Orleans, belonging to the defendants, the 28th November, 1837, and who were cited as garnishees.</p> <p>The defendants, by their attorney, appointed by the court to represent them, pleaded a general denial; and further, answering, set up an assignment made im New-York, according to the laws of that state, of all their goods and property, for the benefit of all their creditors, and which included the property attached in Louisiana. This assignment was made the 16th of November, 1837, but no notice, it seems, had been given to any of the garnishees, on the levying of the attachment.</p> <p>The trustees, Perkins and Putnam, also intervened, and claimed the property attached, for-the benefit of all the creditors. Both plaintiff and defendants reside in New-York.</p> <p>The parish judge gave judgment for the amount of the. notes sued on, but refused to allow some bills of exchange, also claimed in the suit, but reserved to the plaintiff the right to establish these hereafter. . The intervention of the trustees was dismissed, and they appealed.</p> <p>wai ved an amendment of the judgment, so as to include the bills, and prayed to have it affirmed for the amount of the notes sued on.</p> <p>insisted that the court was right in excluding the bills of exchange, for want of proper evidence of protest, etc. '</p> <p>2. The laws of New-York should govern, and according to them, the assignment is good and valid. Story’s Conflict of Laws, section 196-7-8 and 200. 11 Wendell’s Reports, 240. 7 Peters, 613. 3 Martin, Mitchell vs. M‘Millan.</p> <p>The lex loci contractus, is the law of this case.. The parti.es are all citizens of New-York, and the assignment was made there : the matter in dispute consists of personal property only, and the law of the state of New-York, must determine the effect of all contracts made there, touching personal property, • no matter where situated. 2 Martin, JV*. S., 97. Andrews vs. His Creditors, 11 Louisiana Reports, 464. Story’s Conflict of Laws, section 397. 4 Johnson’s Chancery Reports, 466. 20 Johnson’s Reports, 267. 16 Pickering’s Reports, 25. Angelí on Assignments, page 65. ' 5 Mason's Reports, 174.</p> <p>2. By the laws of the state of New-York, the assignment is valid, and vested the personal property, wherever situated. All choses in action were immediately transferred by it, and notice to the.debtor is not necessary to perfect the transfer, as against attaching creditors. 11 Wendell, 200, et seq., 247, 256. 4 Johnson’s Chancery Reports, 529, and cases there cited. Story’s Conflict of Laws, section 396. 3 Russell, 60. 8 Wheaton, 287-8.</p> <p>It is not necessary that the creditors should be parties, or consent to the assignment. There are two parties, the assignors and assignees, and the trust to pay the creditors, is a good consideration. 4 Mason, 206-214. 11 Wendell, 248-50. 2 Kent’s Commentaries, 532-3.</p> <p>4. If the judgment dismissing the intervention be sustained, and this court proceed to render judgment against the defendants, the case will still have to be remanded for further proceedings against the garnishees. No judgment has been given against them by the court below.</p>

■Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is a petitory action, in which the plaintiffs seek to recover two lots of ground in the possession of the defendant. The plaintiffs claim title to the contested premises under a sheriff’s deed, which recites, that he conveyed to the purchasers all the right, title and interest of Marie Therese Leduff to these two lots of ground, which she had in 1810.

<p>A judgment, on a petition for an order of seizure and' sale of the mortgaged premises, which has been opposed, without saying against whom, for the whole amount of the plaintiff's claim, is insufficient to authorize a seizure and sale, under a fieri facias issuing thereon.</p> <p>A sheriff’s sale, which recited that it was made in pursuance of a certain judgment, which in fact did not exist as set forth, was held to be defective, and conveyed no title to the purchaser.</p> <p>The sale by the sheriff is the last act under the judgment and execution, and fixes the condition of the purchaser under it.</p> <p>Where a sheriff’s sale purported to transfer all the right, title and interest, of a •particular defendant, in execution to the purchaser, and it appeared this defendant was not a party condemned in the judgment by name, and was not in fact the true owner of the property seized, the sale was held to be bad, and conveyed no title.</p> <p>Ajudgment on a petition for an order of seizure and sale of the mortgaged premises, which has heen opposed, •without saying against whom, for the whole amount of the plaintiff’s claim, is insufficient to authorize a seizure and sale under a fieri facias, issuing thereon.</p> <p>A sheriff’s sale which recited that it was made in pursuance of a certain judgment, which in fact did not exist as set forth, was held to be defective, and conveyed no title to the purchaser.</p> <p>The sale by lastsl'aotffunder the judgment and execution, and fixes the purchaser under it-</p> <p>„ , riff’s sale, pur-Fer £df the'right title and interest of a particular defendant in ex-purchaser,0 and it appears this not a party con-judgment by nothin fact ’the true owner of the property seized, the sale bad and'conveyed no title.</p>

Eastern Dist. APPEAL PROM THE COVRT OE PROBATES, POR THE PARISH AND CITY OP NEW-ORLEANS. This action is a contestation growing out of a partition ordered by a former judgment of the Court of Probates, from which this appeal comes. In that suit all the present persons were parties, and recognized as co-proprietors of the property to be divided, their rank as heirs fixed, and the case referred to a notary public.

Eastern Dist. APPEAL FOM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action by a part of the shareholders in an association called the Pontchartrain Lake Road Company, against the defendants, claiming damages of them, for an infringement of a contract made with the plaintiffs, through and by Louis Allard.

Eastern Dist. ArrEAL FROM THE COMMERCIAL COÜRT OF NEW-ORLEANS, JUDGE WATTS PRESIDING. This is an action to rescind a contract, and for the return of a payment, as having been made in error of law. was given for annulling the new contract, and for the return of the bank stock, reserving to the defendant his right against the plaintiff, for His proportion, in an action against the joint obligors. The defendant appealed.

<p>Eastern Dist.</p> <p>ATTEAL FROM THE COURT OP THE SECOND JUDICIAL DISTRICT, POR THE PARISH OP ASCENSION, THE JUDGE OP THE DISTRICT PRESIDING.</p> <p>This is an action instituted by B. Poydras, as heir, and acting for himself and the legatees of the late Julien Poydras, on two promissory notes executed by the defendant’s ancestor in 1820 and in 1824, for the sum of eighteen thousand six hundred and twelve dollars. It was stipulated that these two notes were to draw six per cent, interest per annum, payable on the 1st of March, in each year; and the debtor was allowed the privilege of delaying final' payment of the principal, until the 1st of April, 1840, by the punctual payment of the annual interest. J. Poydras died in 1824, and the plaintiff succeeded to his actions.</p> <p>The defendant succeeded to the obligations of his ancestor, at the death of the latter, in 1828. The next year the plaintiff sent a statement of the interest account between them, to the defendant, from 1824 to March, 1829, including compound interest, which was not objected to, and ultimately paid.</p> <p>The interest was also regularly paid from March, 1829, to 1832. After this, two sums of two thousand and one thousand dollars, were paid on account of interest, up to September, 1837, when arrears still existed, and suit was commenced for the principal and interest.</p> <p>The defendant pleaded that he could not be sued for the principal debt, until the expiration of the extended term, in April, 1840; and that compound interest was charged, and had been paid, which should be deducted; and such real balance as was due, he was ready to pay, but that no arnica-ble demand had been made for the principal, which he was not bound to pay until due.</p> <p>There was, however, judgment for the plaintiff, allowing him the principal and arrears of interest, and the defendant appealed.</p> <p>insisted on the affirmance of the judgment, with some corrections.</p> <p>contended that judgment could not go for the principal debt, until the expiration of the term, because no amicable demand had been made, and the defendant was not put in mora. Louisiana Code, 2042.</p> <p>2. There is compound interest charged; the true balance the defendant is, and has been ready to pay. Compound interest is illegal, and cannot be recovered. Louisiana Code, 1934.</p>

Eastern Dist. APPEAL FROM THE COURT OR THE EIGHTH JUDICIAL DISTRICT, POR THE TARISH OR ST. HELENA, THE JUDGE THEREOF PRESIDING. This is a petitory action to recover a tract of land in the parish of St. Helena, in the possession and claimed by the defendant, Gorman.

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action by a plasterer against the owner of a building, on her acceptance of an order, drawn by the undertaker, Charles Clark, authorizing her to retain certain sums out of the second and third instalments of the price of building her house, according to contract between them.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action by the endorsee and holder of a promissory note, subscribed by the defendants, and payable to the order of Theodore Nicolet & Co., sixty days after date. It was endorsed by the payees in blank.

This is an action to recover from the defendant three thousand eight hundred and seventy dollars in damages, for slandering and setting up title by suit to certain town lots.

Eastern Dist. APPEAL FROM THE COURT OP PROBATES, POR THE PARISH OF ST. CHARLES. This case comes up on an appeal from a judgment dismissing the opposition of the plaintiff, widow Champagne, to the tableau of distribution filed by the syndic of the creditors of her husband, the late Francois Champagne. She claimed a considerable sum for the price of a tract of land, her separate property, which was sold by her husband, and the proceeds not accounted for.

Eastern Dist. APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action on a promissory note executed by the defendant.

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action to recover from the defendants, who are seizing creditors, and the city marshal, the value of a quantity of champagne' wine, which was seized in the hands of Eastman & Brothers, as their property, on an execution against them, in favor of Lavillebeuvre & Walton.

<p>Where the legality of issuing an order of seizure and sale had been passed upon, in an opposition made by the defendant, the court will take no further action on the matter, when brought up on a rule to show cause why the alias order of seizure and sale should not be set aside.</p>

Eastern Dist. ArPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is a redhibitory action, for the rescission of the sale of a slave, and the return of the price. The plaintiff had paid six hundred dollars in cash for the slave, and gave his note for six hundred dollars. The slave fell sick the next day of some incurable disease, of which he lingered for a time and died.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE WATTS PRESIDING. In this case the sheriff having executed an order of sequestration, at the instance of the plaintiff, sequestered and took into his possession fifty-four head of cattle and horses, and kept them from the 29th of November, 1834, to the 25th of December following.

EASTERN DIST. ArrEAL FROM THE PARISH COURT, FOR TIIE PARISH AND CITY OF NEW-ORLEANS.' This is an action by a partner in an apothecary establishment against his co-partner, for a dissolution of the partnership, and the final liquidation of its affairs.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.</p> <p>This is an action against the defendant for the price of a slave. The plaintiff propounded interrogatories to the defen-ant, touching the contract, price and conditions, upon which the slave was sold and delivered to the defendant. The petition was filed the 3d of April, 1838, and an answer containing a general denial, was put in on the 1.7th of the same month. On the 20th April, the defendant having neglected to answer the interrogatories propounded to him, and annexed to the petition, the plaintiff proceeded to take judgment ex parte, on the interrogatories being taken as confessed.</p> <p>The defendant appealed.</p>

Eastern Dist. TOLIOE JURY ÜF POINT COUPEE VS. smith’s sxkdics APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action by the police jury of Pointe Coupée, to recover from the syndics of the creditors of Wm.

Eastern Dist. APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITP OP NEW- . ORLEANS.

Eastern Dist. APTEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. These suits are instituted on two bills of exchange, drawn by the defendant on a mercantile firm at Paris, in France, and sold to the plaintiff's; one for three thousand dollars, and the other for five thousand dollars, which were presented to the drawees, who refused to accept; and both bills were noted and protested for non-acceptance, and notice thereof given to the defendant.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCIIANAN PRESIDING.</p> <p>This is an action to recover two thousand four hundred dollars, which the plaintiff alleges'he advanced to captain George R. Wright, of the steam-boat Invincible, on a bill of lading for seventy-five bales of cotton, and which was delivered to the defendants, Lee & Hardy. He prays judgment for this sum against the defendants and captain Wright., with a privilege on the boat, for the non-delivery of the cotton.</p> <p>The defendants pleaded a general denial. The evidence shows that captain Wright purchased seventy-five bales of cotton, on the river, below Vicksburg, of a Mr. Watson, and had a bill of lading filled up on board the boat, signed by the clerk, in which he consigned this cotton to the plaintiff.</p> <p>On arriving at New-Orleans the cotton was rolled out,' and taken into possession by the defendants, Lee & Hardy, by the order of captain Wright, and by them sold on his account, to'meet certain acceptances, or drafts, they were under, and bound to pay for him. On the next day captain Wright went to the office of the plaintiff, and presented the bill of lading for the seventy-five bales, and received the sum of two thousand four hundred dollars thereon.</p> <p>The district judge was of opinion that the defendants had the best right to the cotton; they not having any connection with the transaction between the plaintiff and captain Wright. Judgment was given for the defendants, and the plaintiff appealed.</p> <p>insisted that the bill of lading gave a preference and privilege over others, which was superior to every other title, and transferred the property. A bill of lading is an essential accompaniment and title to property, which gives him who makes advances on the same property, a preference over him who is without it. 1 Peters, 445. 2 Kent’s Commentaries, 548. Louisiana Code, 3214.</p> <p>2. The defendants made no advance on this specific property; had no bill of lading; but sold the cotton on captain Wright’s account, and carried the proceeds to his credit in account. 1 Louisiana Reports, 360. 3 ibid, 302.</p> <p>contended, that it was shown by. the evidence that they had accepted two drafts of Wright for three thousand dollars, upon his promise to ship cotton to meet them ; and he came to defendant’s store on the 24th November, and informed them the cotton was on the levee, and they received it. The plaintiff received his bill of lading and made his advances the 25th November, one day after actual delivery to the defendants of the property in contest.</p>

Eastern Dist. APPEAL EltOM THE COURT OT? THE JTRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action for rent. The plaintiff leased to the defendants one half of a ware-house, for a year, at twenty-five dollars per month, payable quarterly, dated 15th January, 1838.

Eastern Dist. ArrEAL FROM TIIE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action to recover seven hundred and fifty-seven dollars, the amount of an account for granite, which the plaintiff alleges she furnished to the defendant, at his request, for the use of a brick building he was'erecting or repairing in Magazine-street, in New-Orleans, according to an account annexed to the petition.

Eastern Dist. APTEAL ¡FROM TIIE COURT OP THE JTRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action on a promissory note, commenced by attachment. The defendant came forward, and bonded the property attached. A few days afterwards he took a rule on the plaintiff to show cause why the attachment should not be dissolved, on the ground that the facts set forth in the affidavit were untrue.

<p>In proceeding by a writ of seizure and sale against mortgaged property, which has passed into the hands of a third possessor, three days notice must, in all such cases, be given to the defendant, after seizure, before the property is advertised for sale.</p> <p>In proceeding’ by a unit of seizure and sale against mortgaged property, which has pass-edinto thehands of a third possessor, three days «otócemust in all such cases, be £*iven to the defendant a/iter seizure, before the property is advertised for sale.</p>

Eastern Dist. APTEAL PROM THE PARISH COURT, EOR THE PARISH AND CITY OE NEW-ORLEANS. This is an action on a promissory note, given in part payment of the price of certain property sold at probate sale. The defendant resisted payment, on the ground that certain mortgages which existed on the property before the sale, were not erased and cancelled, as was understood and agreed on at the time of sale.

Eastern Dist. appeal from the parish court, for the parish and city of NEW-ORLEANS. This suit commenced by the executory process. The plaintiff obtained an order of seizure and sale against several slaves, hypothecated to him by the defendant, to secure'tbe payment of a sum of money. Louis Ferraud, fils, intervened, for the protection of some rights which he set up to the property or slaves seized, and prayed for an injunction to restrain the sale.

Eastern Dist. APPEAL J?ROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action against the makers and endorser of a promissory note. There was judgment against the makers; but the endorser resisted, on the ground that he had never been notified of the protest of the note. Several witnesses were called for plaintiffs and defendant, whose testimony is noticed in the opinion of this court.

<p>The article two hundred and seventy-six of the Code of Practice, presupposes that the affidavit in a case of sequestration, is to he made by the plaintiff; and when he is present, and no proper cause assigned to prevent him, the affidavit of the agent will not be sufficient.</p> <p>The article 276 of the Code of Practice, •presupposes that the affidavit in a case of sequestration is to be made by the plaintiff; and when he is present, and no proper cause assigned to prevent him, the affidavit of the agent will not be sufficient.</p>

Eastern Dist. APPEAL FROM TI1E PARISH COURT, FOR THE PARISH AND CITV OF NEW-ORLEANS.

Eastern Dist. APrEAL FROM THE COURT OF THE FIRST - JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action on a promissory note executed by the defendant. Suit was first instituted in the parish court for the parish of Jefferson.

<p>Where judgment by default is confirmed, after answer filed to the merits, and prayer for a jury, it vitiates the proceedings, and the case will be remanded.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The plaintiff keeps a boarding-house in the city of New-Orleans, at which the defendant and his family lived as boarders.

Eastern Dist. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTHICT, JUDGE BUCIIANAN PRESIDING. This is an action to recover the amount of two promissory notes, executed by the defendants, A. Hodge, Jr. and William L. Hodge, as drawer and endorser. They were given for part of the price of certain lots sold in 1836, at the probate sale of Jean Gravier’s estate, and purchased by the defendants.

Eastern Dist. APPEAL EEOM THE COVET OE THE EXEST JUDICIAL DISTEICT, JUDGE WATTS PEESIDING. This suit commenced by attachment. The plaintiffs allege that they are holders of three several promissory notes, drawn and subscribed by the defendant, Bebout, on which notes a balance remains due and unpaid of one thousand nine hundred and nineteen dollars and twenty-five cents, together >vith interest thereon, at the rate of ten per cent, per annum.

Western Dist. appeal from the court of the sixth judicial district, for the PARISII OF RAPIDES, THE JUDGE THEREOF PRESIDING. This is an action by the plaintiff, .acting as the executrix of her deceased husband’s succession, to recover the sum of six hundred and five dollars, being the difference in loss between t[ie grst an[j seconc[ adjudications of a negro woman and her child, sold a! probate sale, and adjudicated to George Gorton, as the highest and last bidder.

<p>Executors as well as curators, tutors and other mandatories, are prohibited from purchasing part of the succession administered by them on pain of nullity, at a sale of property to pay the debts of the succession.</p> <p>The nullity resulting from a prohibited sale to executors of property of the succession administered by them, is absolute. No subsequent ratification can give it effect agaipst third persons, interested, who arc not paities to the ratification. The ratification of an absolute nullity, can have no retroactive effect, but is a new title; and cannot prejudice the rights of third parties previously acquired, whilst a relative nullity relates to the original act. j</p> <p>Executors ns well as curators, tutors and. other mandatories, are prohibited from purchasing part of the succession administered by them on pain of nullity, at a sale of property to pay the debts of the succession.</p> <p>j. he nullity re* suiting. from a to°exeou?orsSaof ProPert/ of llie ministered by No^subWqnent ratification ?im againstthirdper-who’arenot pai-I tie?t0 llie ratlfi'</p> <p>The ratifi ca- {¡,™ nuiilty'^cañ is anew title, and tiiiT^nghts^of ^óusíy'ltacqHh'I ed,-whiistareia-lates tefthe ori-S'lnaIact-</p>

<p>An attaching creditor may at the same time proceed by personal citation against his debtor.</p> <p>creditor mayinJi the same time, sonaf6^ cítauon against his</p>

Western Dist. . ON A REHEARING. A rehearing in this cause having been granted, it now came up for a second trial.

<p>Western Dist.</p> <p>APPEAL FROM THE COURT OF THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE THEREOF PRESIDING.</p> <p>This is a proceeding by the executory process, against mortgaged property in the hands of a third possessor. The act of mortgage was taken on certain, property, to secure the payment of a note of four thousand and eighty-nine dollars and sixty-eight cents, drawn by W. Byrnes, the 1st July, 1837, payable at the Union Bank of New-Orleans, the 15th March, 1838. The act contained the “pact de non alienando.</p> <p>The note is paraphed by the notary the 1st July, 1837, and a duly certified copy of the act of mortgage annexed to the petition. It alleges that payment of the note had been in vain demanded of W. Byrnes, the maker, more than thirty days; and that notice of ten days-had been given to the defendant, Collier, to whom the property had been sold and transferred, before instituting these proceedings. The petitioner prays for an order of seizure and sale.</p> <p>There was also an affidavit by the plaintiff’s attorney, taken before the clerk of the court, annexed to the petition, setting forth the demands made on the debtor, and notice to the defendant. The certificate of the parish judge of Con-cordia, is dated the 17th June, 1839, and states that the mortgage taken to secure the payment of this note “ has been duly recorded in his office.”</p> <p>. An order of seizure issued, and the defendant appealed therefrom, directly, to this court.</p> <p>assigned for error that the affidavit was insufficient, being sworn to before the clerk, and, consequently, there is no evidence of the thirty days previous demand on the debtor, and ten days notice to the third possessor, as is required by law.</p> <p>2. The proceedings in this case commenced in the via ordinaria, as citation was issued; and could not be changed to the via exeeutiva.</p> <p>contended, that there was no evidence showing that the plaintiff’s mortgage was recorded before the sale and transfer from Byrnes to Collier, the defendant. The mortgage is dated in July, 1837, and the certificate of the parish judge, stating that it was duly recorded in his office, is dated the 27th June, 1839. Before this date the property was transferred, and it must be presumed the transfer was before the recording, as no other date but that of the certificate is given.</p> <p>2. It is objected, that this was not assigned for error. This was not necessary, where the record enables the court to act on the merits of the case. The court’s attention may be drawn by either party to an error of the inferior judge; without any being specially assigned. See 5 Martin, Jf. S., 340. 2 Louisiana Reports, 347; and, also, 9 Martin, 275, where the court say; “ Want of evidence to support a judgment, cannot be assigned as error apparent on the record.”</p> <p>3. In relation to the pact de non alienando, if the act of mortgage itself had no legal existence against Collier, the third possessor, prior to the 17th June, 1839, how can any clause contained therein affect him.</p>

<p>vascocu’s WID0W^HMKS pavie.</p> <p>Where the defendant in eviction, calls his vendor in( warranty, demanding the return of the price, and the value of the improvements, with a prayer for general relief; and has judgment accordingly, on this issue, it forms res judicata, in a subsequent action for the increased value- and price of the land and improvements.</p> <p>Where the tie-fendant in evic-tioncaiishisven-demanding™^ return of the pnce, and the value of the im-ap°raj™rforJen-eral relief, and hasjudgmentao-cordingiy on this lrmjudi'cata°'inl subsequent ac-turn for the m-creased value ki'ndP1'and° nrovements.</p>

Western Dist, APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF NATCHITOCHES# This case comes up on an appeal by the defendant, as syndic of the insolvent succession of Theodore Deterville, deceased, against the judgment of the Probate Court, allowing the opposition of D. R. Hopkins, J. B. Amant, S. Jones, and Menard, creditors of said succession, to the tableau of distribution filed by the syndic.

In this case a rehearing was prayed for and granted, so far as it relates to the merits, but refused on the other branch of the case. insisted that there was material error in the judgment appealed from, and that it should be reversed, and the case remanded for a new trial, 2. The syndic appealed not alone for himself, but on behalf, .and as the agent of all the creditors.

Western Dist. APPEAL PROM THE COURT OP THE NINTH JUDICIAL DISTRICT, POR THE PARISH OF CARROLL, THE JUDGE THEREOF PRESIDING. •This action was instituted by the Lutor of two of the heirs of W. Graham, deceased, and by the under tutor of the other heir, to annul and set aside the probate sale of the property of the estate of their ancestor, which they allege was sold contrary to law.

<p>Where a part of the calls and boundaries expressed in a deed are inconsistent with the stipulations in the contract of sale, and impossible to be complied with, they will be disregarded.</p> <p>Where a part of the calls and boundaries expressed in a deed are inconsistent with the stipulations in the con-tractof sale, and impossible to be complied with, they will be disregarded.</p>

Western Dist. APPEAL FROM THE COURT OF TROEATES FOR THE PARISH OF CARROLL. , This was a suit in which the plaintiff claimed the sum of one thousand dollars from the defendant, as administratrix of her deceased husband’s estate.

Western Dist. ATPEAL FROM THE COURT OF THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, JUDGE COOLEY, THEN OF THE FOURTH JUDICIAL DISTRICT, PRESIDING. In this case, the plaintiff obtained from the district judge presiding an order of seizure and sale, on a record and judgment in favor of the plaintiff against the defendants in the state of Mississippi, for the sum of three thousand three hundred and twenty-eight dollars and twenty cents.

Western Dist. APTEAL IROM THE COURT OF THE NINTH JUDICIAL DISTRICT, FOR THE PARISH OF MADISON, THE JUDGE THEREOF PRESIDING. This is in the nature of an action of slander of title, in which the plaintiff claims to be the owner of a tract of seventy-seven acres of land, but the title to which, he alleges, is slandered by the defendants, who, he alleges, claim title thereto.

<p>Western Dist,</p> <p>APPEAL FROM THE COURT OF THE'NINTH JUDICIAL DISTRICT, FOR THE PARISH OF CONCORDIA, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action (o recover damages from the defendant for injuries done to the plaintiff’s plantation and land, by draining his own land on to that of the latter.</p> <p>The plaintiff alleges that the defendant owns a plantation situated above, and adjoining to his, on the Mississippi river, in the parish of Concordia; that in the spring of the year 1833, the latter cut ditches, and drained his land on to that of petitioner, without following the natural drains, and by means of said ditches conducted nearly all the water off his plantation into a small pond lying between, and by that means overflowed his plantation, so that it prevented him from making any cotton crop that year, to his great damage, ten thousand dollars, for which he prays judgment.</p> <p>The defendant pleaded a general denial; and claims two thousand dollars in reconvention for damages occasioned by the illegal conduct of the plaintiff inexcavating and cutting away a road or levee he made on his own land, between him and the plaintiff, and also in throwing up a large levee .in said road, damming up the water, and stopping up a bayou or natural drain which runs through both their plantations, and has always been an important drain to their plantations, but which the defendant, has so far obstructed as to cause it to flow back on his plantation above, &c. He prays judgment for his damages in reconvention, &c.</p> <p>The surveyor made a diagram, representing the location and situation of the two tracts of land, which, together with the evidence, was submitted to a jury. They were of opinion the defendant was in fault, and that his draining on to the plaintiff’s land caused the loss of crops and other damage to him, which they assessed at seven thousand dollars. Two of the jurors made affidavit that their verdict was intended to include loss of crops for the year 1833, and up to the time of finding their verdict in December, 1837.</p> <p>A new trial was applied for and granted.</p> <p>. On the second trial a mass of testimony was produced, relative to the injuries complained of between the parties. The cause was again submitted to a jury, who returned a verdict for the plaintiff in the sum of one thousand five hundred dollars. And from judgment rendered thereon, the defendant appealed.</p> <p>argued to show that the defendant, by his own acts, had cut ditches and drains, changing the natural servitude ; and caused the water to flow in different channels from the natural one, by which the plaintiff’s plantation was overflowed, and the water coming down from the upper one became stagnant on his, and destroyed his crops.</p> <p>1st. The relative position of the lands of plaintiff and defendant, shows a natural servitude in favor of the tract of defendant.</p> <p>2d. The defendant had a right to remove any obstruction to the exercise of his servitude erected by plaintiff, and to go on to plaintiff’s land for the purpose, provided it was done without riot. Louisiana Code, 768-770. 3 Blackstone’s Commentaries, 216. 1 Partidas, 442. The evidence clearly shows, either that plaintiff’s levee obstructed a natural drain, or that the cutting of it did him no injury.</p> <p>3d. Even if the ditches constructed by defendant were shown to be injurious or burdensome to plaintiff, still if it were necessary to the culture of defendant’s tract, plaintiff cannot complain. Articles of the Code 656 and 663, are not to be construed too strictly to the injury of the interests of agriculture. Duranton, 5th volume, page 160. 12 Louisiana Reports, 501.</p> <p>4th. But it is shown by the evidence, conclusively, not only that the ditches were absolutely necessary to the culture of defendant’s plantation, but also that they were not injurious to plaintiff, but beneficial to him. It is shown, also, by the evidence, that the inundation of 1833 was caused by the heavy and extraordinary rains of that year.</p>

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 against the endorsers and surety on the the following note: “$950 68-100. Natchitoches, March 7th, 1837. Twelve months after date I promise to pay to the order of Messrs.

Western Dist. APPEAL FR05I THE COURT OF TROBATES FOR THE PARISH OF CATAHOULA. This is an action by the plaintiff, Baldwin, and several other creditors, who joined their claims with his, against the defendant, as administrator of one P. L. G-winn, deceased, .charging him with neglect of duty in failing to collect and pay over the moneys of the succession.

<p>Where the plaintiff in attachment, sets forth in his affidavit that the _ sum claimed in the petition “ is justly due him,” and the petition states that “the defendant is indebted to him” in this sum, the affidavit is sufficient.</p> <p>The articles 42 and 43 of the Louisiana Code, only provide for a change of domicil, hy persons already residents of the state, and not those coming from another state.</p> <p>It requires a residence of one year in this state, by persons coming from another state, to acquire a domicil. Until then they are liable to be sued hy attachment, as non-residents.</p> <p>The articles Louisiana °Code oniy provide for micii by persons of the^latefand not those coming state.</p> <p>It requires a yeaHhTthU state by persons coming from another state, to acquire then they are liable to be sued byattachment,as non-residents. .</p>

<p>Western Dist.</p> <p>APPEAL FROM THE COURT ’OF THE SIXTH JUDICIAL DISTRICT, FOR THE TARISH OF NATCHITOCHES, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>This case commenced by injunction. The plaintiffs allege that the defendants were preparing-and about to stop up a public alley or small street in the town of Natchitoches, situated between their property and a piece of ground in the possession of the Branch Bank of the City Bank of New-Orleans ; that said alley has been an open and public highway for thirty years, and that the corporation of Natchi-toches, by its legal and authorized agents and officers, has been accustomed, for more than thirty years, to keep this street in repair, &c. They allege that, by shutting up said alley, their property will be injured to the amount of two thousand dollars ; and therefore pray for an injunction, prohibiting the defendants from proceeding to close up said street or alley, and for judgment, with damages.</p> <p>The defendants pleaded a general denial; and the defendant, Vignaud, avers that there is no public alley or street, as claimed by the plaintiff, but that the City Bank, of which he is cashier, owns the lot and ground claimed as public, which they purchased at public sale, of the property of Charles Pavie, bounded below by the plaintiff’s store, and above by another lot of the said Pavie; that he employed his co-defendant to fence in the whole boundary of said space of ground for the Bank, until he was stopped by the injunction. He avers that there is no public street between the Bank and plaintiffs, as is alleged ; and that the corporation of Natchitoches disclaims any right whatever to a public passage or street there, &c. Upon these pleadings and issues the cause was tried before the court and a jury.</p> <p>' The evidence, consisting mainly of the testimony of witnesses, old inhabitants of the tpwn, showed that an alley or passage had existed in the vacant space in dispute for more than thirty years; in fact, the defendants admitted it had been open and used as such in passing for forty years. One witness deposed that houses had been built fronting on this open space. The whole space measures nineteen feet; but the plaintiffs’ lot and defendants’ (or bank lot) adjoin, and are situated alongside of each other, the bank having fourteen feet of this space and the plaintiffs’ five feet, according to their measured boundaries.</p> <p>It was shown that the corporate authorities of the town of Natchitoches disclaimed any right to a public alley or street in the vacant space in contest between the parties. There was no plan or designation of this space, as a public alley or street, produced in evidence.</p> <p>The jury returned a verdict for the plaintiffs, prohibiting the defendants from closing up the alley in controversy, and ordering it to be kept open as a public alley of the town. From judgment confirming this verdict, the defendants appealed.</p> <p>1. The legal question to be decided in this case is, was the land in dispute a highway, or street, in the eye of the law ? The evidence shows that it has been used as a public highway for thirty-three years or more.</p> <p>2. We hope to sustain this injunction by the weight of Jüdge Martin’s dissenting opinion in 5 Louisiana Reports, 145, sustained and approved by the Supreme Court of the United States, in the case “City of Cincinnati as. White’s Lessee,” 6 Peters, 433, and in the case “ New-Orleans as. United States,” 10 Ibid, 712.</p> <p>3. The defendants show title for the land, but we contend, in obedience to the principles laid down by the authorities, that we have shown enough to entitle us to recover. We have shown that this has been a public alley or passway for thirty odd years; that the owner, residing in the parish during all' that time, never objected, or dissented from the use made of it; that houses have been built along it, and with reference to it; that vested rights have been thereby acquired ; and, in fine, that there has been such an implied dedication of it to public purposes, that it can no longer be the subject of private ownership.</p>

<p>Where the widow sues to recover certain property under her marriage contract, which she alleges was given to her by her husband, but is withheld and sold by the administrator and heirs: Held, that it is an action to recover property under a title, and not a, partition, and the Probate Court is without jurisdiction.</p> <p>Where the court is without jurisdiction ratione materia, no consent can give it, and the court is bound to notice it ex officio, even when no plea .... to the jurisdiction is filed.</p> <p>Where the hoover Certain PraPerty under her marriage contract, which g^veiftoSherby •1se^]“hheld’and sold by &e ad-heirs: Held, that it is an action to recoverproperty underatuie,and and the Probate jurisdiction'10111</p> <p>Where the court is without jurisdiction rations maieri©, no consent can give it, and the court is bound to notice it ex offi-cio, even when no plea to the jurisdiction is hied.</p>

Western Dist. APPEAL EROM THE COURT OE THE SIXTH JUDICIAL DISTRICT, EOR THE 'PARISH OE NATCHITOCHES, THE JUDGE OE THE DISTRICT PRESIDING. This is an action against the defendants,,who signed a promissory note with one William Harkins as his sureties, payable “ at the counting-house of Messrs. Robbins & Painter, of New-York.” The defendants pleaded a general denial, only admitting their signatures as security for Harkins.

Western Dist. APPEAL PROM THE .COURT OP TIIE SIXTH JUDICIAL DISTRICT, POR THE PARISH OP NATCHITOCHES, THE JUDGE OP THE SEVENTH PESIDING. This is an action to annul an act of sale, from plaintiff to defendant, of two negroes.

<p>Western Dist.</p> <p>APPEAL FROM THE COURT OE THE SEVENTH -JUDICIAL DISTRICT, FOR THE PARISH OE OUACHITA, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action on a promissory note, against the maker thereof.</p> <p>The defendant pleaded the want of an ámicable demand, and averred that the suit was oppressive and illegal, as the plaintiff agreed not to sue, in consideration of the defendant having put into his hands certain promissory notes gmount-jng to more than the demand sued on, which he promised to take in payment, and collect and pay over the surplus. He further avers, that the plaintiff is not the legal owner of the note sued on, and is not in any manner authorized to receive payment; that he has a valid defence against the original payee thereof, for payments made, &c. ■ ></p> <p>In an amended answer, he propounded sundry interrogatories to the plaintiff, to answer under oath in open court, which were answered promptly and categorically.</p> <p>At the second term of the court, the plaintiff’s counsel moved to strike out the exceptions contained in the defendant’s answer, as coming too late, after issue joined ; to wit, the want of amicable demand, and the prematurity of the suit; which motion was sustained by the court, on the ground that, being a? dilatory exception, it could not be pleaded in an answer to the merits, or after a judgment by default. The defendant took his bill of exceptions.</p> <p>There was. judgment for the plaintiff, and the defendant appealed.</p>

Western Dist. APPEAL PROM THE COURT OP THE NINTH JUDICIAL DISTRICT, POR THE PARISH OP CARROLL, THE JUDGE THEREOF PRESIDING. This suit commenced by injunction. The plaintiff claims to be the owner of a tract of land in the parish of Carroll, with the improvements thereon, which he purchased from one James B. Busk, in 1837, and that he has been ever since in possession and paid the taxes thereon.

Western Dist. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF AVOYELLES, THE JUDGE OF THE SEVENTH PRESIDING. This case comes up from a judgment on a bail bond against the principal and his two sureties, taken in the penal sum of seven thousand dollars. The defendant, Archibald Frith, was indicted for stabbing with the intent to kill and murder one S. Read, and gave bail in the sum of seven thousand dollars, with two sureties.

<p>WESTERN DIST.</p> <p>APPEAL PROM THE COURT OP TIIE SEVENTH JUDICIAL DISTRICT, POR THE PARISH OP OUACHITA, THE JUDGE OP THE SIXTH RESIDING.</p> <p>This is an action of slander. The plaintiff charges that the defendant, maliciously and wickedly, and with a view to defame and injure his good character, on or about the 15th day of July, 1837, and at many other times and places in public companies, did utter in substance, that your petitioner “ had counterfeited a bill of goods from New-Orleansthat he “ had'the bill in his possession, and can prove it to the satisfaction of any manalso, “ he (meaning petitioner) did counterfeit, or alter a bill of goods;” also, “ James R. Guice has altered the amount of a bill; I have the bill, and can prove it to the satisfaction of any gentlemanalso, “ he has altered the amount of a bill of goods ; I have the bill, and can prove italso, “ he did counterfeit or altered a bill, or a bill of goods received from New-Orleans, for me also, “ Guice (meaning petitioner) has altered the figures on a bill of goods, and I will prove it;” also, “Guice lias altered the face of a note, and I can prove it, for I have the note in my possession also, “ he (meaning petitioner) is guilty of forgery; he has altered the amount of a bill of goods which he received for me from New-Orleans, and I will prove it and also, “ I say he has committed forgery; I can, and I will prove it.” The petitioner alleges that defendant did, on the 15th July last, and at many other times, make use of and publicly utter the said expressions and malicious charges, and with the malicious intent to delame his character, and injure his good name and reputation; and he expressly alleges, that each of said expressions and charges are false, malicious and unfounded. Wherefore, and by reason thereof, he (the petitioner) has been damaged two thousand and five hundred dollars; for which he prays the verdict of a jury in his favor, and judgment, thereon.</p> <p>The defendant denies that he ever slandered plaintiff, as stated in his petition. He says, that in June or July, 1836, he deposited a sum of money with the plaintiff, to be sent to New-Orleans by some steam-boat, to buy certain articles of merchandize; that, on settlement, plaintiff presented him with a bill, purporting to be a bill of the goods, when, in fact, it was not such bill, but one made out by the plaintiff; and he then said the bill presented was not genuine, but was made or forged by the plaintiff or some other person, which he is ready to verify. He pleads a general denial to every other allegation in the petition.</p> <p>Upon these pleadings and issues'the cause was tried before a jury.</p> <p>It appears the plaintiff resided at the steam-boat landing on the Ouachita river, where steam-boats were in the habit of landing goods for the neighbors and back settlers, and leaving them with him; and many times the bills of such goods were left with him, as well as bills of freight. In most cases he was in the habit of paying the steam-boats, and settling with the persons owing freight, &c. The expressions used were uttered and published by the defendant Harvey, and intended to apply to the plaintiff in relation to a bill of goods the latter had received for him.</p> <p>Sterling, sworn, says he was present at the steam-boat landing, at the mouth of Bayou Bartholomew, in July last, together with others, when he heard defendant accuse plaintiff “ of forging a bill.” Witness did not understand whether it was a bill of goods or freight, but that he also said “ he had the bill in his possession and could prove it.” Witness understood fronU plaintiff at [the time he would not lie under such an imputation ; and the only ground that defendant had for slandering him was, that he had received goods for defendant and one Folk, and kept the original bill, and furnished defendant with a copy, so far as he was concerned.</p> <p>Bartlett, sworn, says he heard defendant say that plaintiff “ had altered a bill, either a bill of goods or freight bill, and he could prove itsaid at another time that the plaintiff “ had altered a bill of goods, and he would make him suffer for it.” Witness understood defendant to mean that plaintiff had done this to defraud him.</p> <p>Miller, sworn, states that he heard defendant, on the 15th July, say, that plaintiff had altered the face of a bill, and he could prove it to the satisfaction of any one.</p> <p>Other witnesses testified that they had heard defendant say, that plaintiff had “forged or counterfeited a bill.”</p> <p>Defendant’s witness explained the way in which he made the charge. Folk says, he had a keg of nails in a bill of goods for Harvey, the defendant; that plaintiff received them, and when he got his nails, the plaintiff made out separate bills in his own name, for witness and defendant, and kept the original bill to settle by; that this was the origin of the charge. Witness says defendant stated since, that the original bill was not the bill he charged the plaintiff with having forged ; “ that he was in possession himself of the bill that was forged, and no one should see it.” This conversation took place since the suit was commenced.</p> <p>The judge charged the jury “ that they might find damages to the amount of the reasonable expenses of the suit, without any actual damage or injury having been proved.” To this charge the defendant’s counsel excepted.</p> <p>The jury returned a verdict of four hundred and fifty dollars in damages for the plaintiff. . From judgment rendered thereon the defendant appealed.</p> <p>1st. The judgment is right, and should be affirmed. In actions of slander, special damage need not' be proven, and may be implied by the jury. 2 Louisiana Reports, 74. 3 Ibid., 207.</p> <p>2d. The slander in this case amounts to a charge of a criminal nature, “ altering or forging an account or receipt.” 1 Moreau's Digest, 384, section 2. Louisiana Code, 1928.</p> <p>3d. Every man is responsible for the damage he does, either intentionally, negligently, or by imprudence. Louisiana Code, 2294, 2295. 2 Starkie, 461, and notes.</p> <p>4th. The judge properly charged the jury that they might find the expenses of the suit as special damages, but they did not find special, but general damages.</p> <p>5th. Every allegation in the petition is fully supported by the evidence, and would sustain an action even at common law, amounting to a charge of crime, and being calculated to injure the plaintiffin his business of receiving articles at a steam-boat landing.</p> <p>6th. The jury are the proper judges of the tendency to defame, by the words used, and the party using them are subject to the worst interpretation that can be put upon them, and cannot plead his own want of veracity to relieve him from the penalties of the law.</p> <p>insisted, that no action would lie in this case, as there was no special damage shown ; and the words proved to have been spoken, are not actionable in themselves. Where the party charged that the plaintiff swore to a lie, in relation to his testimony given on a trial, which implied swearing falsely, and the commission of perjury, yet, when it only related to the part of the testimony that was immaterial, it was held that the words were not actionable. 20 Johnson's Reports, 344, and 13 Ibid., 81.</p> <p>2. The words spoken must import some crime or offence for which the party might be punished criminally, to be actionable. In all other cases the party must prove a special damage. 4 Bacon's Abridgment, title “ Slander,” letter L. 483. 3 Blackstone's Commentaries, 118-119.</p> <p>"3. It is not sufficient to show that the defendant made use of such words, or to the like effect; but they must have a certain meaning and application. Now, the witnesses in this case say they do not know whether the bill spoken of, was a bill of goods or a bill of freight.</p> <p>4. If the court should come to the conclusion that the words spoken are actionable, and tend to charge the plaintiff with an offence for which he might be indicted and punished, then the verdict and judgment of the court below must be reversed, and set aside, and the cause remanded on the bill of exceptions taken to the charge of the judge. See II Louisiana Reports, 238, 288.</p>

<p>Western Dist.</p> <p>ArrEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, BEING THE SECOND APPEAL IN THIS CASE, GRANTED BY THE JUDGE OF THE FIFTH DISTRICT.</p> <p>This appeal was taken, returnable the first Monday of October, 1839, to the court, sitting at Alexandria. The record was not brought up and filed until Saturday of the first week of the court, which was the sixth judicial day of the term.</p> <p>The counsel for the' defendant and appellee moved to dismiss the appeal, as not having been filed on the return day, and within the time prescribed by law.</p> <p>The plaintiff presented his affidavit, to show that the omission to file the. new appeal on the return day, was caused by mistake ; and prayed that it might be maintained as filed.</p>

<p>The plaintiffs obtained an injunction restraining the defendant from carrying on a bakery in wooden buildings adjacent to theirs, and in the midst of the town of Alexandria, on the allegation of imminent danger to their property, and a nuisance. The jury found twelve hundred dollars in damages for the defendant, on his plea in recon- . mention for injury and loss sustained by the injunction, which this court refused to disturb.</p> <p>Questions of fact, and the assessment of damages are peculiarly subjects for the consideration of a jury.</p> <p>Questions of fact, and the assessment of damages, are peculiarly subjects for the consideration of a jury.</p>

WESTERN DIST. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH’ OF RAPIDES, THE JUDGE OF THE FIFTH PRESIDING. This is an action in which the plaintiff alleges, that the defendant killed four of his mules, worth one hundred and fifty dollars each, and claims the sum of six hundred dollars as compensation for their value. The defendant pleaded a general denial, and averred that the allegations in the petition were false.

Western Dist. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF CONCORDIA. This is an action against the administrator of C. S. Lee’s estate, on a bill of exchange, drawn by the deceased.

<p>Western Dist.</p> <p>APl'EAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE OF THE FIFTH PRESIDING.</p> <p>This is an action to recover twenty-four slaves and their increase, together with three thousand dollars a year hire, ánd five thousand dollars in damages, for their illegal detention by the defendant. Also, for an injunction to restrain the execution of a judgment which Mrs. Bonner had obtained against the plaintiff, and was proceeding to sell his property thereon.</p> <p>1 The plaintiff shows that on the 18th March, 1825, he sold to the defendant, Mrs. Rosanna Bonner, twenty-four slaves, by notarial act, for the sum of seven thousand nine hundred and twenty-two dollars, for which he received her notes, payable by instalments; the last falling due the first of March, 1828. The sale is absolute in its form, but there is a memorandum appended to it in the following words:</p> <p>“ It is agreed, that the said Thomas Patterson shall have the privilege of redeeming the negroes mentioned within, at any time within three years after the last instalment shall have been paid, by repaying the price, as expressed within, to the said Mrs. Rosanna Bonner, her heirs and assigns, with interest on the same at ten per cent, per annum from the time such payment shall have been made till such redemption shall take place. In testimony whereof the parties hereto subscribe their names, this 18th day of March, 1825.</p> <p>“ THOMAS PATTERSON,</p> <p>“ ROSANNA BONNER.”</p> <p>The plaintiff alleges, that it was expressly understood at the time of making this instrument that he was to retain possession, and have the services of said slaves, to enable him to pay the amount which would be" due the defendant for their redemption. That he did remain in possession for nearly three years ; and when the defendant obtained possession, she agreed that interest should not run on the sum he owed her. That the services of the negroes were worth more than the interest due.</p> <p>He further states, that in February, 1834, he made the defendant a tender of the amount due her, and still tenders the same; and that he made a demand for the slaves in pursuance of their contract, and that she refused to receive the amount due her, and deliver the slaves, as she was bound to do ; in consequence of which refusal he has suffered damage to the amount of five thousand dollars. That defendant has had possession of the negroes from the 14th February, 1828, until the present time, and that their services are worth three thousand dollars per annum, and have been worth this sum ever since she obtained possession, which amounts to eighteen thousand five hundred dollars.</p> <p>He further states, that notwithstanding the premises, the defendant has issued an execution on a judgment she had against him for one thousand, nine hundred and ninety-two dollars, and is proceeding to sell his property. He prays that the defendant be condemned to deliver up all of the said slaves and their increase, or their value, estimated at twenty thousand dollars. That in the alternative of delivering the negroes, that she be condemned to pay the sum of five thousand dollars in damages. He further prays, that she also be condemned to pajr the sum of eighteen thousand five hundred dollars as the hire of said slaves, deducting the amount that may be due to her under their agreement. He prays for a writ of injunction to restrain the sheriff from proceeding on the execution against him, and for general relief.</p> <p>The. defendant excepted, and says, that the suit has been prematurely instituted, and should be dismissed.</p> <p>She pleaded a general denial, and averred,, that no legal tender or demand was ever made, and that no right of redemption ever existed,, but if it ever did, the time within which it might have been claimed had expired before this suit was instituted.</p> <p>She further says, the same matters have been adjudged between them in a former suit, the judgment in which is not appealed from, and which she pleads as res judicata.</p> <p>She prays, that the injunction be dissolved, with interest and damages. But if the plaintiff receives the slaves, then she prays that he be condemned to pay her twenty thousand dollars, as a condition precedent, with ten per cent, per annum, the amount that will be justly due her.</p> <p>Upon these pleadings and issues the cause was tried by a jury-</p> <p>At the time of executing the sale, the 25th March, 1825, the slaves were allowed to remain in the possession of the vendor, and remained in his possession until December, 1827, when Mrs. Bonner recovered a judgment, decreeing her the possession, and one thousand and twenty dollars a year, from the 18th March, 1826, until the slaves were delivered to her, as damages occasioned by their detention, and that she have a writ of possession. The possession of the slaves was delivered in February, 1828.</p> <p>William Justice sworn, says, that Mr. Patterson, after the sale of the slaves, kept possession of them upwards of two - years. An agreement was made between plaintiff and defendant, that’the former was to put the negroes in controversy, in with those of the defendant, and draw a share of the crop in proportion to his force, and the debt he owed the defendant was to be paid in that way. This was in 1826, or 1827, while witness was overseer for defendant. The negroes were to work and the proceeds were to be placed to the plaintiff’s credit until the debt was paid. The agreement was broken off because witness would not consent as the manager of defendant, to take charge of these negroes, &c.</p> <p>R. W. Kay states, that in March, 1827, Patterson sent his negroes to witness’s plantation, and he made a crop with them of fifty or sixty bales of cotton; that he and Patterson had contemplated working their hands, together a series of years, and the proceeds of the crop to be applied principally to the payment of the debt Patterson owed to Mrs. Bonner. That the following winter the slaves were taken out of Patterson’s possession.</p> <p>J. B. Scott sworn, says, that two of the notes given by Mrs. Bonner to Patterson, were transferred to Judge Miller, and the last one to Madame Meullian. The last note was paid, one half in 1831, and the other half in 1832. Plaintiff’s first wife was a daughter of Mrs. Bonner. Witness says, that prior to the payment of the last notes, he went to Mrs. Bonner to redeem the negroes in controversjr, and proposed to pay her the first note ; and pay her the amount plaintiff owed her, and release her from the two remaining notes. She said if Patterson would come and pay her the money himself, he could redeem the negroes, but-that if any person was to be benefited by the transaction except Patterson, it might as well be her as any one else. This was after the sheriff had delivered her the possession of the negroes in 1828.</p> <p>Witness says, on cross-examination, “ he made no tender of the money to Mrs. Bonner, but was authorized to pay the amount of the debt due by Patterson, as acknowledged in the deed, and the amount she had paid on the first note, and restore the other two notes to her. In making the proposi-tioias to Mrs. Bonner, to redeem the negroes, witness proposed to place her in the same situation as she would have been in if she had paid no money on the notes, and pay her the money which Palterson owed her, as contained in the deed. So far as witness knows, Patterson knew nothing of the proposition to redeem at the time it was made. Witness had control of two of the notes at the time.”</p> <p>(The testimony of all these witnesses was excepted to; Scott’s, because he was surety in the injunction bond, and Justice and Kay’s, because parole evidence was alleged to be inadmissible to prove any thing under the contract.)</p> <p>Burney, sworn, says, the negroes are valuable, and, from 1828 to 1832, were worth fifteen hundred dollars per year, and from that time to this, two thousand dollars. There are no better negroes in the parish ; he would be willing to give thirty thousand dollars for them and their increase. He and William Brown went, with Patterson, the 24th of February, 1834, to Mrs. Bonner. Patterson told her he had come to pay her the money he owed her for the redemption of the negroes: she said, she could have nothing to do with it; that she had given up the business to her children, and any thing they would do she would be satisfied with. Patterson then applied to Mr. Bonner, the son, but they came to no conclusion. Brown testifies to the same facts in substance.”</p> <p>After the evidence was gone through, the judge charged the jury as follows :</p> <p>“ This is an action to redeem the slaves mentioned in the act of sale from Patterson to Bonner. That act, on the face of it, appears to be a sale of the slaves to Mrs. Bonner, and, by its effect, transfers the legal title to her; but a condition, or stipulation, is annexed to the sale, which gives to the plaintiff the right to redeem the slaves on refunding the money advanced to him, with interest, as, therein mentioned, provided he did so within the time limited for that purpose. In order to entitle himself to redeem the slaves, the plaintiff) by the act, is bound to repay the price of the slaves, with ten per cent, interest at any time within three years from the time the last payment should he made by her for the slaves. Has he made this payment within the time limited ? If he has not made that payment, has he made a tender of payment, and demanded the return of the slaves within the time? If he has, he is still entitled to redeem the slaves. On this point, I am of opinion, that if the sum due was unsettled, and if he applied to the vendee and requested a settlement of accounts, and offered and declared himself ready to pay the balance due, and the vendee refused to settle, or to receive the money, this will be a good tender to. preserve his right to redeem the slaves; and I think he will be entitled to their profits from that time. It is insisted by the plaintiff, that the sale, with the condition annexed, is nothing more than a security for the re-payment of the price of the slaves, with the interest thereon, and that, consequently,'the plaintiff is entitled to the revenues of the slaves; but this point, it is insisted on the other side, has been decided by thé former judgment of court between these parties, which is-in evidence. That decision certainly gives to her the possession of the slaves, and also a right to the revenues, i. e., to receive them as they accrued, but does not give her the absolute right to retain them finally to her own use; or only to receive them according to the terms of the contract. This the judgment does not decide, nor does it at all foreclose the plaintiff’s right of redeeming the slaves. These points, 'therefore, remain open, and must be decided according to the terms of the contract: and this makes it necessary to consider the nature of the contract. On this a question arises which is important, and which is this: Was the vendee, Mrs. Bonner, after the passing of the conditional sale to her, entitled to the profits arising from the use and employment of them for her own benefit? or was the vendor, the plaintiff, entitled to these profits ? This will depend on the nature of the act in question, and to ascertain this we must inquire what was the intention of the parties on passing the act; and for this purpose we must look into and consider the nature of the act itself. Was it, then, the intention of the party to transfer the right of property in the slaves to the vendee, or was it their intention that the conditional sale should stand only as a security for the repayment of the money which the vendee bound herself to pay for the plaintiff"? If the former, then the vendee became entitled to the profits arising from the use of the slaves; if the latter, and the act was intended only as a security for the repayment of the money, then the plaintiff is entitled to the profits. This question you will decide on the evidence.</p> <p>“ I consider it clear, that, so long as the time limited for redeeming the slaves endures, the vendor has a right to redeem; and if he does redeem them, the conditional sale has no other effect than that of its being a security for the repayment of the money advanced to the vendor. If the vendor brings his suit to redeem within the time, the jury are bound to consider the sale as such security, and nothing more. What, then, is the amount which the vendor is bound to pay, on redeeming his property 1 If the vendee has had possession of the property, which yields fruits, and has enjoyed all the profits arising from the use of it, can she moreover claim the highest rate of interest allowed by law on the money advanced 1 I am clearly of opinion she cannot, for that would unquestionably be usurious. She is not entitled to both; but, in this case, she1 has stipulated for interest to be paid to her on the money she advanced. Has she not thereby herself decided this point, by prescribing the terms on which these slaves might be redeemed, to wit, on refunding to her the money, with ten per cent, interest. If, on the whole view of the case, the jury are convinced such was the intention of the parties at the time of entering into the contract, then the parties are bound by that stipulation ; and, in that case, the defendant will be entitled to the money that was advanced to the plaintiff, with ten per cent, interest, and nothing more. If the profits arising from the use of the slaves amount to more, she must refund the overplus; if less, the plaintiff must make up that amount, in order to entitle himself to redeem.”</p> <p>To this charge the defendant’s counsel excepted, and requested the judge to give the following, in charge to the jury:</p> <p>“1. That this is a vente ii réméré, and the jury must be governed by the articles, of the Civil Code of 1808, in reference to such sales.</p> <p>“ 2. That the defendant is entitled to the services of the slaves until the purchase money has been reimbursed, or tendered and consigned.</p> <p>“ 3. That the reimbursement of the purchase money, or the tender and consignment thereof, is in the nature of a condition precedent, and must have been performed before the institution of this suit; otherwise there must be a verdict for the defendant.</p> <p>“ 4. That the plaintiff, in order to maintain his action, must show an actual payment of the purchase money, or a lawful tender thereof, before the institution of this suit; and the jury are not authorized, in an action of this kind, to consider the purchase money as paid by the services of the slaves, which services, according to the law which must govern such cases as this, belongs to the vendee until the purchase money shall have been actually paid, or a lawful tender thereof made.</p> <p>“ 5. That the judgment of the court in the case of Rosanna Bonner vs. Thomas Patterson is res judicata upon the question of the hire or services of the slaves, and that judgment having been pleaded in bar, settled this question in favor of the defendant in this case, and precluded the reinvestigation thereof.</p> <p>“ 6. That, in order to constitute a lawful tender, it must have been made to the vendee herself, or at her domicil, or to her agent, by the plaintiff or his agent., in the presence of two witnesses residing in the place, by tendering the purchase money, and exhibiting the same to her or her agent in the current coin of the United States, according to article 407 of the Code of Practice.”</p> <p>Each of these propositions were severally refused, by the judge presiding, to be given in charge to the jury, to which refusal the defendant’s counsel took his bill of exceptions.</p> <p>The jury returned the following verdict: “We, of the jury, find for the plaintiff the sum of six thousand four bun-dred and nineteen dollars, which is the amount due said plaintiff, after deducting the amount of judgment and interest obtained by Mrs. Bonner against the plaintiff in 1827, together with all the said slaves that are living, and their increase, and costs of court.’,’</p> <p>After an unsuccessful motion by the defendant’s counsel for a new trial, judgment was rendered confirming the verdict decreeing to the plaintiff the slaves, and giving him the sum of six thousand four hundred and nineteen dollars, as the net balance due him for their hire, and perpetuating the injunction staying the enforcement of the judgment, &c. From which the defendant appealed.</p> <p>1. We contend, that although this is a sale absolute on the face of it, it in truth partakes of the nature of a vente h réméré, known to the French law as a Contrat Pignoratif, or pledge for the loan of money; usurious in its nature, and consequently null. See Merlin, Questions de Droit; Contrat Pignoratif, page 278 et seq. Questions Faculté de Rachat, page 108. 9 Duranton, 430. ,</p> <p>2. The situation of the parties should be examined into. One was debtor, the other creditor. One was in urgent want of money, the other lent her name. The property was sold far below its value.</p> <p>3. Every stipulation that the pledge shall belong to the creditor on failure of payment is null. The French Code and ours are the same on this point; and from this, Duranton deduces the illegality of the Contrat Pignoratif. See Code Napoleon, articles 2078, 2088.' Louisiana Code, 3132, 3146.</p> <p>4. If the object perished, the loss, Duranton says, would be the lenders. He sought to evade the law. 9 Duranton, No. 431.</p> <p>5. This is not a contract of insurance. The security was very good, the best next to lands. Even lands may be destroyed by earthquakes, &c.</p> <p>6. Parole evidence properly admitted to prove collateral facts; more especially- when there is simulation in the contract, as here. 7 Louisiana Reports, 331. Louisiana Code, 2267.</p> <p>7. To allow the defendant ten per cent, interest, and the use or hire of the slaves, would be usurious; consequently, the contract would be null and void. 3 Louisiana Reports, 393. 4 Marlin, 165. 4 Kent’s Commentaries, 136. 1 Vernon, 476. Pothier, 416, 417. Contratde Vente, 9 Duranton, JVo. 424. The fruits are the interest.</p> <p>8. In a true vente h réméré both parties must be placed in the situation they occupied prior to the sale, est potius dis-tractus quam novus contractus. Pothier, Contrat de Vente, 411. We show by calculation, that Mrs. Bonner would have received thirty-seven thousand dollars for the loan of eight thousand dollars, whilst Patterson would only receive his negroes.</p> <p>9. No tender was necessary; we owed nothing, even if it was. Pothier, 410. Paillett, on article 1673. Sirey, on articles 1662 and 1673. Troplong, pages 374, 720. Amere verbal notification is all that is required.</p> <p>10. The judgment of 1827, giving Mrs. Bonner the possession of the slaves is not res judicata. See IStarkie, marginal note, 224.</p> <p>11. The hire of the negroes was fully equal to the annual amount of Mrs. Bonner’s notes.. The evidence proves this, and the plaintiff is fully entitled to the benefit of the hire of his slaves.</p> <p>12. The peculiar circumstances of this case, shows that it was intended to cover a loan of money.</p> <p>1st. Patterson was in distressed circumstances; moreover, he was the debtor of the defendant at the time of this contract.</p> <p>2d. The price was far below the real value of the property. In the contract, it is stated at seven thousand nine hundred and twenty-two dollars, one thousand nine hundred and twenty-two dollars of which was in a debt due defendant by plaintiff. The balance was in notes, without interest, payable at one, two and three years; but it appears they were never paid until 1832, seven years after the contract. The negroes, in the evidence, are stated to have been worth, at the time of the sale, from twelve to fifteen thousand dollars.</p> <p>3d. The slaves, for nearly three years, remained in the possession of the vendor.</p> <p>13. Will the parties be placed in the same position they occupied prior to the sale, if we give the defendant her principal sum and ten per cent, interest thereon, with the fruits and revenues of the slaves; and to the plaintiff, nothing but his negroes 1</p> <p>14. In 1825, Mrs. Bonner had not paid the sum of seven thousand nine hundred and twenty-two dollars; and at the same time Patterson possessed his negroes. In the year 1839, Mrs. Bonner will have received her principal, and eleven years interest thereon at ten per cent., with the hire of the negroes for eleven years, estimated at twenty-seven thousand five hundred dollars, according' to the evidence, and nineteen hundred and forty-five dollars the amount of the judgment; making a total of forty-six thousand and seventy-nine dollars, for the loan of her name for six thousand dollars, whilst Patterson would only receive back his negroes. Thus, one party would be enriched at the expense of the other forty thousand dollars.</p> <p>15. Defendants contend, that according to Pothier, Contrat de Vente, 413, they might validly stipulate for a higher price to be repaid by the vendor on his exercising his right of redemption. This is not correct. The stipulation here is to pay interest. No increase of the price was contemplated by the parties. Plaintiff was to repay the seven thousand nine hundred and twenty-two dollars, and ten per cent, interest thereon. Had the stipulation been, that he should repay ten thousand dollars on exercising his right, this would have been a principal sum, and the question might present some difference. Troplong, No. 696. 9 Dwranton, No. 429.</p> <p>the case; and submitted a written argument on the same side by J. Seghers, coun-sellor at law, who had been consulted.</p> <p>For the defendant it was urged :</p> <p>1. In this case, admitting the jury decided correctly on the evidence before them, and under the charge of the court, yet the cause must be remanded on the bills of exception. All the parole evidence going to show the intention of the con-trading parties, and what the contract is, was objected to as illegal and inadmissible. Bills of exception are also taken to the rejection of evidence ; especially to the rejection of a letter from Patterson to Bonner. This letter made propositions, and showed how he understood the contract. It was rejected on the ground that it made propositions which were never accepted. But it contained declarations favorable to the defendant, and evidence against the plaintiff. Conversations of a party, while a compromise is going on, if they disclose facts, are evidence of those facts. 2 Slarkie, 38, note (g.)</p> <p>2. The testimony of Scott was illegal; he being the surety in the injunction bond. According to the act of 1831, section 3, the surety is to be considered a principal in the injunction, and bound in solido for the principal, interest and damages on its dissolution. He was, therefore, an incompetent witness.</p> <p>3. Exceptions were taken to the charge of the judge to the jury, generally, and to his refusal to charge, as requested by the defendant’s counsel.</p> <p>Mr. Winn argued at much length to show the errors contained in the charge, and their tendency to mislead the jury; also, the error in refusing to charge them in the manner asked for. These were urged as strong grounds for setting aside the verdict, and remanding the case for á new trial.</p> <p>4. The judgment in 1827, decreeing Mrs. Bonner the possession and use of the slaves in question, is relied on as res judicata in this case. This suit expressly claimed the ownership and revenues of the slaves under the act of sale in question. Patterson’s answer, put at issue all the positions now relied on. This judgment is absolute, giving Mrs. Bonner the quiet and undisturbed possession and ownership of the slaves with their increase, and also a large sum for their back hire up to the time when possession was delivered. Hence we must conclude that the sale was not to secure the repayment of advances, and is not a mortgage. That the fruits and revenues were not to compensate the interest or principal, but are the irrevocable property of the defendant; and finally, as a corollary, that the acts in question constitute a vente U réméré and nothing more.</p> <p>5. The charge of the judge, and the plaintiff’s argument insists, that the stipulation of Patterson to pay ten per cent, interest, before redeeming, changed the character of the act, and that both the revenues and interest could not go to the defendant, or the contract would be usurious and void ; but that it was the intention of the parties, that the defendant should have the interest, and the plaintiff the revenues. To this we oppose again the plea oí res judicata. The judgment of 1827, forever settles and forecloses this question. It gives, irrevocably, the ownership, possession and revenues' of the slaves and their increase to the defendant.</p> <p>6. Such a contract, too, is permissible. Pothier, Contral de Vente, No. 413, expressly says, that the purchaser may lawfully contract that the vendor shall pay a larger sum than he received, to enable him to redeem ; although without this express contract, the returning the principal alone would be sufficient. The right to redeem is limited to a particular period, and the highest rate of interest might be charged, and added to the principal on redeeming. 5 Merlin’s Repertoire du Jurisprudence, verbo, Faculté de Rachat, page 48, No. 8. Sirey, Codes Annoté, page 301, note 3, on article 1659 Code Napoleon.</p> <p>7. The act of sale being vente tt réméré, this suit is premature. The right of redemption is in the nature of an obligation, with a condition precedent, and the plaintiff must show performance on his part within the time stipulated; otherwise he cannot redeem ; and that performance must be carried into effect before instituting suit. Civil Code of 1808, page 272, articles 68, 76. Ibid., 364, articles 106, 107. Ibid., 362, articles 93, 94. 3 Martin, N. S. 531. 7 Ibid.,,277. 4 Kent’s Commentaries, 125.</p> <p>8. There has been no payment or return of the price here, unless the fruits and revenues are to be considered as belonging to plaintiff, and as absorbing the debt. Neither has there been a tender. The only evidence touching this point is that of two witnesses, (Burney and Brown,) which shows that none was, in fact, ever made, as required by law. Code of Practice, 404, 407, 418. Louisiana Code, 2163. 3 Starkie, 1390, and note (u.) Ibid., 1393 — 4.</p> <p>9. Not only a tender is necessary, but if not accepted, an actual consignment of the mone}? must be made. If the money has not been tendered or consigned, it is now too late. The time fixed has expired. Louisiana Code, 2564. Civil Code of 1808, page 364, article 106. Polhier, de Vente, JVb. 410. 5 Merlin's Repertoire, &c., verbo, Rachal, page 48.</p> <p>J. Seghers, considered this case as involving two inquiries:</p> <p>1. What is the true character of the transaction, and is it not a valid sale with benefit of redemption ?</p> <p>2. Is not the right of the vendee t'o take the fruits of the essence of such a contract1? and is not Madame Bonner entitled to the,revenues of the slaves until the consideration is refunded, with interest? or the money tendered and consigned 1</p> <p>I. The Roman law is plain on these points. See pacto de Retrovendendo, Digest, lib. 19, tit. 5, l. 12. Code, lib. 4, tit. 54, l. 2. The Spanish law is in accordance. Matienzo says, that the pact de Retrovendendo may be inserted in the sale, or entered into soon afterwards, and that, in such case, the fine due the state can be exacted but once, there being in fact but one contract, which is a perfect sale, making the vendee the owner of the thing sold, and entitled to its fruits. “ Where the sale is annulled By the pact de Retrovendendo, inserted, either in the sale itself, or made soon after, so that it may be considered as part of the contract, the fine is due for the first sale which was perfect, notwithstanding the _paci be entered into in direct terms ; and on account of that sale the vendee enjoys the fruits, and may sell and transfer to another person, but no other fine is due. A sale with that pact is true, absolute and perfect sale, since, by tradition, the vendee is the owner, and makes Ihe fruits his own, and is not bound to restore them to the vendor after redemption. It is thereby proved that the sale is pure, and, not conditional; otherwise, the vendee could not have the fruits.” See Malienzo, lib. 5, tit. 11, Law 7, gloss. 3, No. 22, and gloss. 6, No. 42. Code, lib. 4, tit. 54, law 2. ,</p> <p>Gomez says, “that if one buys with this pact that (if within a limited time the vendor repays the price, the vendee was bound to restore the thing,) then should the vendor pay, the purchaser will restore the object, and the sale will be avoided. But the vendee is not bound to give back the fruits gathered in the interval; but only those gathered after the payment, or consignment of the money.” This is in accordance with the common law, and in forum conscientio. The vendee enjoys the fruits, as having a good title. 2 Gomez, 415, No. 27 and 28. The text is plain in the Code, lib. 4, tit. 54. The ordinary glossary and all the commentators explain it so, as well as Partida, 5, tit. 2, law 42.</p> <p>II. If any doubt could remain, our own laws are explicit on the subject. It is expressly stated, that when a vendor exercises the right of redemption, he becomes entitled to all the fruits not yet gathered, from the day he has either reimbursed or consigned the money paid by the purchaser, unless the contrary has been stipulated. Louisiana Code, 2564, 2545, 2551, 2553. Civil Code of 1808, page 363-4, articles 91, 97, 106. Smooths. Baldwin, 1 Martin, N. S., 528.</p> <p>1. The two next inquiries are, first, can the stipulation for the ten per cent, interest, change the character of the transaction, or make it other than a vente U réméré 1 or take from the defendant the right to the fruits; and can she not claim the interest and the fruits under the contract?</p> <p>2. Should not the former judgment operate as res judicata as to the defendant’s right of possession, and to take the revenues, and fix the character of this transaction as a valid vente U réméré 1</p> <p>I. Pothier, Contrat de Vente, No. 413, expressly says, that tbe purchaser may lawfully contract that the vendor shall pay a larger sum than he received, to enable him to redeem; although, without such express contract, no doubt that the returning of the principal alone would be sufficient. If a larger sum be stipulated for, there can be no good .reason wby that larger price shall not consist of interest. The right to redeem expired at a limited period, and the interest could be easily calculated and added, .so as to form a larger sum. Bee Merlin’s Repertoire, verbo Rachat. Sirey, Code Civil, annoté on art. 1659. Corarrubias, a famous Spanish jurisconsult, says, “ The seller may be bound by a private agreement to buy the thing by him sold, and for a larger price than he sold himself.” See Febrero, part 1, tom. 2, cap. 10, sec. 1, fol. 377.</p> <p>II. The plea of res judicata should prevail. All the points set up in this case are put at rest by the former judgment in 1827. The issue was on the same pleadings, and the proof required was identical. See 11 Martin, 607. 7Martin, JY.S., 438. 2 Johnson, 210. 7 Ibid, 20. 8 Ibid, 34, 38. 10 Ibid, 365. 11 Ibid, 530.</p> <p>III. Even should the stipulation to pay interest be deemed usurious, the contract would not be void ; the interest alone would be lost. The laws of Spain, affixing a penalty for taking usurious interest, are repealed. Hermann vs. Sprigg, 3 Martin, N.S., 190. 4 Louisiana Reports, 545.</p> <p>1. The last inquiries are, can the plaintiff maintain an action without refunding the principal, or making a tender and consignment ? And is any tender under our laws valid, unless the cash be exhibited 1</p> <p>2. Can this transaction be considered and held to be a mortgage or antichresis 1 or security in disguise for a usurious loan of money 1</p> <p>I. On the first of these points, the Spanish authorities already quoted are referred to. Our own statutory provisions are positive, that tender and consignment must be made. Code of Practice, 404 to 418, and 142, et seq. Louisiana Code, 2163, et seq. These authorities are positive, and support the affirmative of the question. Patterson’s action was, therefore, premature, he not having made any legal tender and consignment.</p> <p>II. On the last point urged, it is evident this transaction cannot be considered a mortgage. There is no principal debt to support or serve as a foundation for it. The proper test is, iu case of the death of the slaves, on whom does the loss fall 1- Res perit domino. 1 Martin, N. S., 525.</p> <p>It is not an antichresis, for it, like a mortgage, is but an accessory to a principal debt. It is not a pledge, for, by article 3119, of the Louisiana Code, it is essential to the contract of pledge that the creditor be put into the actual possession of the property pledged. It has been contended, that the act of sale under consideration was a contrat Pignoratif. This kind of contract was known in the old French jurisprudence, but has been disregarded in France since the revolution of 1789. It is to be hoped, that it will meet with no better reception in Louisiana. Its object was, to defeat loans on interest, under pretence of usury. See Merlin’s Repertoire, vol. 9, verbo Pignoratif: also, Questions du Droit, 1 vol., contrat Pignoratif.</p> <p>argued against the demand set up in this action.</p>

<p>Eastern Dist.</p> <p>APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.</p> <p>' This appeal comes up on a bill of exceptions taken to the judgment of the court, refusing the appellant, William R. Carnes, who claims to be a privileged creditor of the insolvents, to file his opposition, and to grant a new trial.</p> <p>The record shows that the syndic of the- creditors of the insolvents, filed his tableau of distribution, and publication was made on the 16th of November, 1838. On the 28th of the same month, judgment of homologation was pronounced g0 far as ta[)jeau wag not opposed. On the 30th, and before this judgment was signed, William R. Carnes, a privileged creditor, offered to file an opposition to the tableau, which the judge refused, as coming too late.</p> <p>The counsel of Carnes then' took a rule on the syndic to show cause why a new trial should not be granted, and the judgment of homologation set aside.</p> <p>Bills of exception were taken to the decision of the judge refusing leave to file the opposition, and overruling the application for a new trial. The opposing creditor appealed.</p> <p>insisted, that as no personal notice of filing the tableau had been given to the opposing creditor, he was not precluded from filing his opposition. 2 Moreau’s Digest, 434, section 35. Louisiana Code, 3054, JVos. 2 and 4. 7 Martin, N. S., 425.</p> <p>2. The opposition was in time; and it may be filed at any time before judgment of homologation is signed. 9 Louisiana Reports, 48. 6 Martin, JV. S., 654.</p> <p>3. There is no legal proof of publication. The newspaper should have been produced in evidence, showing the advertisement., and the date of publication. In this case the syndic’s counsel testifies, that he caused the advertisement to be inserted in certain papers. 11 Louisiana Reports, 483.</p> <p>contended, that personal notice was not required to be given to creditors. The publication in this case was made in two newspapers, and duly proved. The opposition came too late, after the expiration of ten days from publication.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The opponent, Carnes, claims to be a privileged creditor on the proceeds of furniture sold at (he sale of the insolvent’s property. When the first tableau was presented by the syndic, and duly advertised, Carnes presented hi's opposition, claiming to be a privileged, instead of an ordinary creditor.

Eastern Dist. APPEAL FROM TI1E COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCIIANAN PRESIDING. This is an action on a promissory note against Lewis A. Read, one of the firm of Skeels & Read, as endorser. The note is drawn to the order of, and endorsed by, the firm of Skeels & Read.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, FOR THE PARISH OF ASSUMPTION, JUDGE COOLEY, THEN OF THE FOURTH DISTRICT, PRESIDING.</p> <p>This is an appeal from a judgment of the District Court, setting aside the sequestration, because the surety in the bond did not reside within the jurisdiction of the court, as required by law. The facfs are, that the suit was instituted in the parish of Assumption, in which the plaintiff obtained an order to sequester the crop, then growing on the defendant’s plantation.</p> <p>The defendant being absent, a curator ad hoc was appointed, who moved the court to set aside the sequestration, on the ground that the surety in the sequestration bond was not domiciliated in the parish.</p> <p>It was shown, that the surety resided in the parish of St. James, at the time and since signing the bond. There was judgment ordering the writ of sequestration to be set aside, and the plaintiff appealed.</p>

Eastern Dist. ArrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action against the maker and endorser of a promissory note, protested for nort-payment.

Eastern Dist. APPEAL FROM THE COURT OF TIÍE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF THE SECOND DISTRICT RESIDING. This is an action to recover a sum of money on a written contract, signed by the defendant, in which he engages to purchase and pay for a crop then growing on his own land, but made by the plaintiff. The defendant pleaded various matters in defence, and reconvened in damages.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. In this case, Yard & Blois having made a surrender of their property, syndics were appointed by the creditors. Thomas Blois, one of the insolvents, as tutor of his minor son, claimed to be a privileged creditor, for a large sum, on the property surrendered ; and also his second wife, Emilie Demourelle.

<p>Eastern Dist.</p> <p>ArBEAE FROM THE COURT OF PROBATES, FOR THE PARISH OF ST. HELENA,</p> <p>This is an appeal from a judgment of the Court of Probates of the parish of St. Helena, homologating and confirming the probate sale of a tract of land to the defendant. The facts show, that Margaret M. Morris was the wife and surviving widow of Presley Stephenson, deceased, and adminis-tratrix of his succession; and also natural tutrix of a minor daughter, sole issue of the marriage. She afterwards married one A. R. Morris, and presented a petition to the probate judge, praying that “a family meeting, composed of the relations and friends of her minor daughter, be convoked, to deliberate on the propriety of retaining her in the tutorship, and also to deliberate on other matters relating to the administration of said estate.”</p> <p>A family meeting was convoked, accordingly, which confirmed the petitioner as tutrix, and her husband as co-tutor, of her minor daughter, and appointed J. K. Gorman under tutor, and administrator of the estate of Presley Stephenson, - deceased. The meeting further declared, that the estate was indebted ten thousand, seven hundred and fifty-five dollars, and ordered that it be sold, at probate sale, on certain terms and conditions.</p> <p>The proceedings of this family meeting were homologated, and the sale of the property decreed, by the Probate Court, accordingly. At the sale, Merrit G. Kemp became the purchaser of a tract of land, containing five hundred and forty acres, for the price of two thousand three hundred and ten dollars. He took out his monition to have the sale confirmed. '</p> <p>Mrs. Morris, as tutrix of her minor daughter, and assisted by her husband, made opposition to the sale, and prayed that it be annulled on the following grounds:</p> <p>1st. That the sale of Stephenson’s succession was not provoked by an administrator, or any person legally authorized ; but only on the application of the widow to be confirmed in her office of tutrix, &c.; and that said sale is contrary to law, and illegal.</p> <p>2d. Because there was no appraisement at the sale, and the property was adjudicated to the defendant, for less than its appraised value, in the inventory.</p> <p>3d. That the order of sale was illegal, the forms of law not having been complied with, &c.; and, also, that the terms of sale are not complied with.</p> <p>Upon these issues, made in the opposition to the order for the monition, the cause was tried. The judge of probates decided, that, as the order of sale was predicated on the deliberations of a family meeting, convened for the special purpose, it was legal; and that, although the minor child had an interest in Stephenson’s succession, yet it was the sale of the property of the succession, and not that of the minor; that the estate was largely in debt, and nearly the whole of it community property; and that the purchaser had complied with the conditions of sale; that, ‘therefore, the sale was legal, and should be homologated and confirmed. From this judgment the plaintiffs in opposition appealed.</p>

Eastern Dist. APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH ANB CITY OF NEW-ORLEANS. This is an action against the maker of a promissory note, made payable to the order of, and endorsed in blank, by Messrs. Sloo & Byrne, and also by W. W. Stewart. The maker of the note, Amos Beeson, having died, suit was . . . .... . . ' . instituted against his widow, as partner m the community, and tutor to the minor children, and as representing the estate of the deceased.

Eastern Dist. This suit is instituted on a promissory note executed by the defendant. The plea is, minority at the time of executing the obligation. The testimony is somewhat contradictory, but the judge presiding was of opinion it preponderated to the side of the defendant, rendered judgment in his favor, from which the plaintiff appealéd.

<p>Want of amicable demand specially pleaded and shown, saved the defendant the costs of the original citation ; and also those of appeal by reversing the judgment.</p>

<p>The vendor of personal .property may produce evidence to show that the note sued on, was given for the price of certain furniture, to enable him to enforce his privilege) against it in the hands of his vendee.</p> <p>Where the defendants are interrogated as to the consideration of the note ' sued on, and neglect to ¡answer, their silence must be taken pro confeséis and it will be deemed fjill proof.</p> <p>pniTi'property may produce evidence to show tiiat lhe note sued on was given for the price of certain furniture, to enable him to enforce his privilege against it in tne hands of his vendee.</p> <p>Where the defendants are interrogated as to the consideration of the note sued on, and neglect to answer, their silence must be taken pro confessis, and it will be deemed full proof.</p>

<p>There being no grounds on which to prosecute the appeal in this case, it was considered as taken for delay, and judgment confirmed with ten per cent, damages.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING* In this case the plaintiff obtained a verdict and judgment for the amount of his demand, with five per cent, interest thereon, and the defendant appealed. The counsel for the appellee brought up the record, after the return day had expired, and prayed for the affirmance of the judgment, with damages, as for a frivolous appeal.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING. In this case there was a verdict and judgment against the defendant, and he prayed an appeal, but failed to bring up the record. The appellee filed an exemplification of the record after the return day, and prayed for the affirmance of the judgment below, with ten per cent, damages, as for a frivolous appeal. ' -

<p>The certificate of the clerk should state that the record “ contains all the evidence adduced on the trial” or the appeal will be dismissed.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OE THE THIRD DISTRICT, FOR THE PARISH OF EAST FELICIANA, JUDGE SAUNDERS, PARISH JUDGE, PRESIDING.</p> <p>This suit commenced by injunction. The plaintiffs in injunction, S. & T. L. Clark, allege, that in April, 1837, they endorsed a note of one James C. Shule, for two thousand nine hundred dollars, and took a mortgage on a small plantation, and some slaves, to secure them against their endorsement. That said note became due, and was protested for non-payment, and'that judgment and execution thereon has been obtained against them, their property seized, and advertised for sale. ' '</p> <p>They further allege, that said Shule has removed to Texas, but left one of the mortgaged slaves in the possession of one Catherine Glover, and that they are informed and believe said Shule is about to remove said slave out of the state of Louisiana; and pray that it be sequestered; its value being about five hundred dollars.</p> <p>In a supplemental petition, the plaintiffs allege, there is another of the mortgaged slaves in the hands of Slaughter & Badger, of Port Hudson, worth one thousand dollars, and which they apprehend may be removed. They pray that said slave be sequestered, and -that Slaughter & Badger be made parties to this suit.</p> <p>The affidavit sets forth, that the plaintiff, Clark, fears the said negro may be removed beyond the jurisdiction of the state, unless prevented by a writ of sequestration.</p> <p>The defendants, Slaughter & Badger, excepted, and prayed that the sequestration be set aside.</p> <p>1. Because the facts set forth did not authorize it.</p> <p>2. They are improperly made parties.</p> <p>3. The affidavit is only sworn to by the attorney of one of the plaintiffs.</p> <p>4. The affidavit is insufficient, in not showing the facts which induced the apprehension that said slave will be removed.</p> <p>5. Neither of the plaintiffs state, that said slave would be removed out of the state before they could have the benefit of their mortgage.</p> <p>6. The affidavit is informal and insufficient in several particulars.</p> <p>They then pleaded various matters to the merits of the plaintiff’s demand.</p> <p>The parish judge presiding, sustained the exceptions, and set aside the sequestration, and the plaintiffs appealed.</p>

Eastern Dist. APPEAL PROM TIIE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF WEST FELICIANA, JUDGE MORGAN PRESIDING. This suit is instituted on a draft, drawn by the defendant, and small account, for the aggregate sum of four hundred and ninety-one dollars. The defendant failed to appear. Judgment by default was taken the 7th December, 1838, and made final on the 11th; the 9th being Sunday.

Eastern Dist. APPEAL FROM TIIE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action instituted by the owner of the steamer Semaphore, claiming' damages to the amount of three thousand nine hundred and ninety-two dollars, from the defendants, as owners of the steam tow-boat Hudson, for running into his boat on the night of the 12lh December, 1838, through negligence and mismanagement, and causing the injury, for which he seeks redress.

<p>Eastern Dist.</p> <p>APPEAI. FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF THE SECOND PRESIDING. ,</p> <p>The plaintiff is the daughter of Thomas B. Pipkin, deceased, who died intestate^' in December, 1819, leaving a tract of four arpents of land on the Mississippi, as part of the community of acquests and gains. The survivors are the widow, and a son and daughter. In January, 1821, the widow petitioned the Probate Court to convoke a family meeting to deliberate on the propriety of liquidating and par- ' titioning the succession of the deceased.</p> <p>A family meeting was called, consisting of the tutrix and friends of the minors, without the presence of the under tutor, and advised the sale of the community property, and fixed the terms. The tract of land in question was adjudicated to the surviving widow, without appraisement, at five hundred dollars; being less, by one half, than the price of estimation in the inventory. She sold to the defendant, Thompson.</p> <p>The plaintiff claims one-fourth in her own right, and three-fourths in right of her deceased brother; alleging that the probate sale to her mother was null.</p> <p>The defendant set up title and cited in the widow Pipkin as his warrantor. She appeared and claimed title under the probate sale.</p> <p>There was judgment for the plaintiff against the defendant for one arpent, and in his favor over against his war-rantor for the value of the eviction. The defendant alone appealed.</p>

Eastern Dist. APPEAL FROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, POR THE PARISH OP IBERVILLE, THE JUDGE OP THE SECOND PRESIDING. This suit commenced by the hypothecary action.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF POINTE COUPEE, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This suit commenced by injunction. The plaintiff alleges he purchased a tract of land at the probate sale of Philip Whitesides’ succession, in the parish of Pointe Coupée, in November, 1836. That since then, David Whitesides, curator, and one of the heirs of P. Whitesides, obtained an order of seizure and sale, against this land, for the payment of the sum of four thousand and sixty dollars, with interest,, which was seized by the sheriff on the 30th June, and advertised on the 3d of August, 1838, allowing only three days, when the defendant, in the seizure, resides more than forty miles from the judge who granted the order.</p> <p>That said David Whitesides, as curator, heir, agent of the other heir, and one S. A. Lard, have also commenced suit against him for the same land, claiming to be owners under another title. He alleges various other informalities in the executory proceedings, and prays for an injunction to restrain and stop the sale, &c. The defendants pleaded a general denial, and averred that the injunction was wrongfully sued out, and ought to be dissolved with damages.</p> <p>Upon these pleadings and issues, the cause was tried.</p> <p>On the trial, the defendant offered an extract from the minutes of the court, to show that he had discontinued his suit for the land, which was received, and the trial ordered to proceed in relation to the order of seizure. The plaintiff’s counsel objected, and excepted to the order of continuance as evidence, on the ground that it was not signed by the . , judge.</p> <p>On the evidence and documents produced, the court dissolved the injunction without damages, and the plaintiff has appealed.</p> <p>I. The court below erred in receiving in evidence a judgment of non-suit or discontinuance, taken in this case, in relation to the defendant’s claim to the land :</p> <p>1. Because it was taken at the same term of the court in which it was offered in evidence. Code of Practice, article 555.</p> <p>2. Because it had not been signed by the judge.</p> <p>II. No notice was given to Morgan of the existence of the order of seizure and sale, nor of the writ of seizure and sale, before the sheriff seized the land, after which said Morgan was notified that, unless he paid the mortgage debt and costs, within three days, the land would be advertised and sold, though the said Morgan resided at the distance of about forty miles from the residence of the judge who granted the order. Hence said Morgan was entitled to five full days notice before the said seizure could be legally made. Code of Practice, article 735. 7 Martin, Jf. S., 512, 513.</p>

<p>When the sheriff acts honestly, being a public officer, he must be protected against excessive and vindictive damages.</p> <p>So, where the sheriff illegally removed slaves by seizure from the plantation they were cultivating, a bare remhneralion for the loss sustained, so far as it can be ascertained, should be adopted as the measure of damages.</p> <p>The damages for loss of time of slaves, by illegal seizure and removal, should be estimated at the usual rate of hiring slaves.</p> <p>When (he sheriff acts honest-iy. being a pub-mnstbeproteet-ed against excessive and vin-dictivedamages,</p> <p>So. where the sheriff illegally removed slaves, by seizure, from the plantation they were cultivating, abare remuneration for the loss sustained, so far as it can be ascertained, should be adopted as the measure of damages.</p> <p>The damages for loss of time of slaves, by illegal seizure and removal, should be estimated at the usual rate of hiring slaves.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF POINTE COOTEE, THE JUDGE OF THE SECOND PRESIDING.</p> <p>' The plaintiff sued for the recovery and possession of a tract of land, with damages for the illegal detention thereof, and for waste committed. On the trial, the jury returned the following verdict: “ Verdict in favor of the plaintiff that he recover the possession of the land, with four hundred dollars per annum, and costs.”</p> <p>A new trial was insisted on, because the verdict is illegal and void, for uncertainty, and that no judgment can be rendered on it.</p> <p>The court overruled the motion for a new trial, and gave judgment for the land described in the petitiop, and for four hundred dollars per annum, in damages, from judicial demand, until possession is restored, with costs. The plaintiff appealed.</p> <p>insisted that the verdict was for too small a sum, and altogether illegal as regards the damages. The judgment should be reversed and the cause remanded for a new trial, &c.</p>

Eastern Dist. API*£3AX. PROM TIIE COURT OP TIIE POURTII JUDICIAL DISTRICT, POR TIIE PARISH OF TOINTE COUPEE, THE JUDGE 'OF THE SECOND PRESIDING. This is an action against the maker of a promissory note. There was a verdict for the sum claimed with legal interest from judicial demand. The verdict was found the 24th May, and judgment rendered thereon the 13th June following.

Eastern Dist. APPEAL PROM THE COURT OP PROBATES, POR THE PARISH OP ST. HELENA. This is an action to compel the defendant to vender a complete and perfect account of the tutorship of his late pupil, Wm. Day, deceased. The plaintiff is the mother and heir at law of the deceased, and the defendant his grandfather.

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD DISTRICT FOR THE PARISH OF EAST FELICIANA, JUDGE JONES, OF THE EIGHTH DISTRICT, PRESIDING. In this case there was judgment overruling the opposition of the representatives of N. Cox, deceased, to the tableau of distribution filed by the syndic, in which a preference was set up over the claims of Rhodes & Peters, Palmer & South-mayd, and other creditors. The opponents appealed, and made these two firms and the syndic, appellees.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF TIIE SECOND PRESIDING.</p> <p>The plaintiff, Adéle Pipkin, in her own right, and as heir of her deceased brother, claims a tract of four arpents of land with the usual depth, which she alleges was the separate property of her father, at his death, in 1819 ; that her and her late brother, Philip P. Pipkin, were the sole issue of the marriage between her father and Armede Villiers, and inherited all his separate property.</p> <p>She further shows, that, shortly after the death of her - father, there was a probate sale of his estate at which the surviving widow became the purchaser of the tract of land in question, at less than the appraised value; and that the judgment ordering the sale, and the sale itself, are illegal, null and void. She also alleges and shows, that her brother died in 1833, without descendants, and that she inherits three-fourths of his estate, and her mother one-fourth. She, therefore, prays that the defendant in possession be adjudged to deliver up to her the contested premises, and that her title thereto be declared valid, and that she be quieted in the possession and have judgment for damages and rents, for the illegal detention of the same.</p> <p>The defendant derived title immediately from the heirs of Laurent Villiers, who purchased from Armede Villiers,' (widow Pipkin,) whose title rests on the validity of the probate sale of the estate of Thomas Pipkin, deceased. The defendant called in all his vendors in warranty. Upon the titles and evidence adduced, the judge presiding gave judgment for the plaintiff, decreeing her three and one-tenth arpents of the tract of land, and ordering her to pay seven hundred and seventy-five dollars, the value of the improve-merits, from which is to be deducted the vents from the time of bringing suit, until the plaintiff is put in possession, at the rate of forty-two dollars per annum ; the defendant, Doiron, to have a privilege on the property for his improvements, and to pay costs; and that the defendant recover the sum of eight hundred and fifty-six dollars, and rents which he has to allow and pay, from his warrantors, the heirs of Laurent Villiers, who have a like judgment over against Madame Armede Villiers. The last warrantor appealed.</p> <p>Doiron, who, in his answer to the petition of appeal, avers that the judgment is erroneous and should be reversed; that the first sale in question was made by order or in pursuance of a judgment of the Probate Court, of competent jurisdiction, and was sold to pay the debts of the succession, and is valid in law.</p>

Eastern Dist. APrEAL FROM THE COURT OF THE SECOND DISTRICT, FOR THE PARISH OF ASSUMPTION, THE JUDGE THEREOF PRESIDING. ’ This is a suit by the payees against the maker of a promissory nofe. The execution of the note was admitted. The defendant propounded interrogatories to the plaintiffs, who reside in New-Orleans, touching the consideration of the note sued on, and required separate answers from each.

<p>Where separate answers of the members of a firm are required to interrogatories, each member is bound to answer separately, when notified; but the party needing them must allow time and procure them.</p>

Eastern Dist. APPEAL PROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF l’OINTE COUPEE, THE JUDGE OF THE SECOND PRESIDING. This is an aclion for work and labor alleged to be done in pursuance of a written contract, and on-account, by plaintiff, for and at the request of the defendant, in which the sum of three hundred and eleven dollars is demanded.

<p>According to a statute law of Mississippi, all notes made there are subject to every equitable defence against a bona fide endorsee, which could be set up against the payee; and when sued on here, the case must be governed by the lex loci contractus.</p> <p>When a vendee has not complied with his agreement, he cannot complain, and set up as a matter of defence to his note, that the vendor has not extinguished a certain mortgage, when this failure was the consequence of his not complying with his stipulation to pay in a certain manner.</p> <p>According (o a statute law of ^[esmadethere are subject to every equitable defence against a feefiidifchcouid \e set up against when sued on must’he* governed by the fea&ci</p> <p>When a vendee liasnot complied with his agreement, he cannot complain,and set up as a matter of defence to his note, that the vendor has not extinguished a certain mortgage, when tliis failure was the consequence of his not complying with his stipulation to pay-in a certain manner»</p>

Eastern Dist. APPEAL PROM TIIE COURT OP TIIE FIRST JUDICIAL DISTRICT, JUDGE BUCIIANAN PRESIDING. This is a revocatory action. The plaintiff alleges that, on the 6th January, 1838, he obtained judgment against one Samuel Chapman, on his two promissory notes, for the sum of ten thousand eight hundred and seventeen dollars, with legal interest.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.</p> <p>This is a suit against the defendant as maker of a promissory note. He obtained an injunction on the ground of payments made, and propounded interrogatories to the plaintiff. The latter answered, that seventy dollars had been overpaid on a previous instalment by the defendant. The district judge perpetuated the injunction as to this sum, and dissolved it for the remainder of the plaintiff’s claim. The defendant appealed.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE~ PARISH AND CITY OF NEW-ORLEANS. This suit is instituted against the maker of a promissory note, under protest.

Eastern Dist. appeal prom the court op the first judicial district, judge BUCHANAN PRESIDING. This is an action against the defendant as acceptor of a draft. Several matters were set up in the answer, by way of defence, but no attempt was made to prove them on the trial. Judgment was rendered against the defendant for the sum claimed, and he appealed.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OP ST. TAMMANY, THE JUDGE THEREOF PRESIDING. This is an action against the maker for the amount of five promissory notes; and on an open account for interest, drafts and acceptances paid, and goods furnished, &c., according to an account annexed.

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF WEST FELICIANA, JUDGE MORGAN, THEN JUDGE OF THE DISTRICT, PRESIDING. This is an injunction suit to stay an order of seizure and sale.

<p>An affidavit which states that the insolvent has received, as depositary, certain property which he refuses to deliver up to the claimant, is insufficient to obtain an order of arrest. These circumstances are in no way calculated to induce the belief that the debtor is about to depart from the jurisdiction of the court, or secrete his person from his creditors.</p> <p>An affidavit thein'soNenthas received, as de-property "which liverfupeSto° the claimant, u in-tain an order of circumstancesSe are in no way calculated to induce the belief iÍTabout to'de-Jurisdiction l*of the court, or se-from his credit" 01’8,</p>

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF WEST FELICIANA, JUDGE DAWSON, PARISH JUDGE, PRESIDING. This is an action on an account for work and labor done, at the instance and request of the defendant, in the construction of a large gin-house, cotton press and castings for four gin stands, according to an account annexed, of one thousand six hundred and twenty dollars. .

Eastern Dist. APPEAL FROM THE COURT OP THE THIRD JUDICIAL . DISTRICT, POR THE PARISH OF WEST FELICIANA, JUDGE DAWSON, PARISH JUDGE, PRESIDING. This is an action on an account for work and labor done on the defendant’s house, in which the 'plaintiff claims a balance of one thousand and forty-two dollars, according to an account annexed.

Eastern Dist. APPEAR PROM THE PARISH COURT, FOR THE PARISH AND CITY OF NBW-ORLEANS. This is a redhibitory action to recover fifteen hundred dollars, the alleged value of a slave, sold by the defendant to the plaintiff!, and soon after died of a disease supposed to have existed at the time of sale. • The defendant controverted this fact, and the testimony of the physician, to whose hospital the slave was sent, and soon afterwards died, was received as evidence of it.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the endorsers of a promissory note. The endorsements sued on were in blank, but the plaintiff made a special endorsement below to one ffm. Brand. On the trial, Brand was offered as a witness to show that this endorsement was made to him merely for the purpose of collection ; that the plaintiff was the true owner; and the defendants promised to pay the note. This testimony was excepted to, on the ground that, by an-inspection of the note sued on, the plaintiff had parted with his interest therein. The testimony was received, and there was judgment for the plaintiff. The defendant appealed.</p>

Eastern Dist. APPEAL PROM THE COURT OP THE EIGHTH DISTRICT, POR THE PARISH OF ST. HELENA, THE JUDGE THEREOF PRESIDING. This is an action on a promissory note of the defendant, and an account for moneys laid out and advanced for his use, amounting to tbe aggregate sum of three hundred and ninety-two dollars, for which the plaintiff prays judgment.

<p>Eastern Dist.</p> <p>ON AN APPLICATION FOR A MANDAMUS.</p> <p>This is an application for a mandamus to the district judge of the first judicial district, commanding him to grant an appeal from an order of seizure and sale.</p> <p>showed, that on his presenting a petition of appeal on the part of the defendant in this case, the judge a quo refused to grant said appeal.</p> <p>submitted the case to the court</p>

Eastern Dist. APPEAL PROM THE COURT OP THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF -WEST FELICIANA, THE JUDGE THEREOF PRESIDING. The plaintiff sues, as agent of one Lewis Jordan, of Tennessee, and charges the defendant with having illegally-taken from the state of Tennessee, and out of the legal possession of the plaintiff several slaves, and which he has brought to the parish of West Feliciana.

<p>Eastern Dist.</p> <p>APPEAL PROM THE COURT OP PROBATES, POR THE PARISH OP ST. HELENA.</p> <p>This is an action of partition, instituted by three of the children and forced heirs of Nancy and Jacob Burton, deceased, against three co-heirs and the representatives of a co-heir, Nathaniel Burton, deceased.</p> <p>The plaintiffs allege, that the succession of their deceased ancestor is worth about ten thousand dollars, and has never been partitioned among the co-heirs. They pray for a final partition of said succession, according to Jaw.</p> <p>The representatives of Nathaniel Burton, by attorney, answered, and by way of intervention, alleged, that the other heirs had received large amounts of property in the life time of said Jacob and Nancy Burton, both in Georgia and this state, which they were bound to return to the succession, or collate it according to law. They further show that the succession of Jacob Burton was opened in the parish of St. Helena, and that John Burton was appointed administrator, who has illegally caused the property thereof to be sold. They further state their desire for a partition, and for this purpose require the administrator to settle his account; the heirs made to collate, and that a partition take place according to law.</p> <p>They further state, that they are ignorant how much property has been received by the other heirs, but enumerate some and propound interrogatories to several of the heirs touching property “received from their common ancestor, and pray that it be inventoried as part of the succession.”</p> <p>After the. heirs had answered, and all the property accounted for, the succession amounted to the gross sum of' fifteen thousand six hundred and thirty-six dollars, and the debts unpaid and due, amounted to eight thousand three hundred and ninety-eight dollars, which, deducted, leaves a balance of seven thousand two hundred and thirty-eight dollars, to be divided among seven sets of heirs. Each heir collated, whether the property received from the ancestor in his life time, was “ given off” in Georgia, where he formerly resided, or in Louisiana, where his succession was opened.</p> <p>The heirs collated what property they had received at its appraised value; those of Nathaniel Burton, deceased, were allowed the price of hire of two slaves “ given off” to him in Georgia, and taken back by said Jacob Burton fourteen years previously, and which was deducted from the gross amount of the succession before partition. Upon this basis the partition proceeded.</p> <p>Two of the heirs, plaintiffs, and the attorney for the absent heirs, opposed the homologation of the petition, alleging that a tract of land and some notes remained to be divided, and, therefore, the partition was only provisional. They oppose the allowance of three thousand and thirty-four dollars to the heirs of N. Burton, for the hire of slaves loaned to, and taken back by the ancestor: Finally, that the partition is made on illegal principles, and that the shares of each are incorrect.</p> <p>The heirs of N. Burton opposed the partition, on the ground that the heirs who had received slaves, did not return them and their increase to the mass of the succession, and because the hire or value of their services were not collated: Finally, because the value of the two slaves loaned or “given off” to N. Burton and taken back, were not allowed.</p> <p>These oppositions were overruled, and from judgment homologating the partition, the opponents appealed.</p> <p>for N. Burton’s heirs contended, ■</p> <p>1. That the judge of probates erred in not deciding that all the property of Jacob Burton, given off or loaned to his children and heirs, should be returned in kind with all the natural increase, whether said loans were made in the state of Georgia, or in Louisiana, inasmuch as no titles were given, and as the law recognizes no principle but equality as the basis of all partitions.</p> <p>2. And further they contend, that, if the court below was right in considering the giving off, or loans of property, as absolute donations, then the court erred in not allowing to the heirs of Nathaniel Burton the price of the two slaves, which their grand-father had loaned to their father, and afterwards took back and sold.</p> <p>3. That the court below erred in not decreeing that all ° heirs of Jacob Burton should account for the use of the property loaned up to the time of making the partition, and in such manner as to produce perfect equality at the time of partition, among all the heirs.</p>

<p>In an action to r&nder the captain and owners .of a steam-boat liable in damages for the value of sundry bags of corn shipped on board and delivered in a damaged state, evidence will not he received to show that the corn was purchased from the captain in order to make him liable as seller.</p> <p>In an action to render* the captain and owners of a steamboat liable in damages for the value of sundry bags of corn shipped on board and delivered in a damaged state, evidence will not be received to show that the corn was purchased from the captain in order to make him liable as seller.</p>

<p>The plea of the general issue admits the signature of the 'maker of the note sued on.</p> <p>When there is no defence, the judgment on appeal will be affirmed with the maximum of damages.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, POR THE PARISH OP WEST FELICIANA, JUDGE DAWSON, PARISH JUDGE, PRESIDING.

<p>Eastern Dist.</p> <p>ArrEAL I-ROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action of slander in which the plaintiff alleges, the defendant, with the malicious intention to defame and slander him, falsely, maliciously and publicly stated on the 11th February, '1838, and at several other times, that he (meaning petitioner,) was “a thief, and had stolen a watch and books.” He lays his damages at ten thousand dollars, and prays for a trial by jury.</p> <p>The defendant pleaded the general issue, and set up-various matters in justification of his charges, by way of defence.</p> <p>On the trial, the plaintiff proved the slanderous charges, and the defendant attempted to sustain his defence. The material questions of law raised in the trial are stated in the following opinion made by this court.</p> <p>The cause was submitted to a jury, who returned a verdict of fifteen hundred dollars in damages for the plaintiff. From judgment rendered thereon the defendant appealed.</p>

Eastern Dist. AFTEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS. This is an aotion against Brander, M’Kenna & Wright as acceptors of a bill of exchange, made payable to the order of ; Wm. M. Gwinn, whose name is endorsed thereon in blank. The plaintiff alleges that M. Y. King & S. Nel,son, at Tchula, Mississippi, the 15th June, 1836, drew their bill of exchange on the defendants, payable thirteen months after date to the order of W. M. Gwinn, who accepted to pay the same.

Eastern Dist. APrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action by the executors of S. Henderson, deceased, against the maker and endorsers of a promissory note. The endorsers pleaded that they endorsed as the sureties of the maker; that he is not indebted to Henderson’s estate, but, on the contrary, it owes him a balance, which.they pray may compensate the plaintiff’s claim, and that Byrne’s property be discussed.

The defendants are sued as makers of a promissory note payable to the order of “Joshua Fisher, at his counting-house in New-York.” The note is endorsed to the plaintiff by J. & H. Fisher, as attorney in fact of Joshua Fisher.

<p>In actions of slander, when there is no question of law involved, the questions of fact and quantum of damages are so peculiarly the province of the jury, that their verdict will not be disturbed, unless manifest injustice has been done.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF TIIE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING.</p> <p>This is an action by the payee against the maker of a promissory note. The plaintiff and payee endorsed the note to one Lawrence, and took his receipt, which showed that it was endorsed merely for ^collection. The note was after-wards returned, and the plaintiff erased his name from the' endorsement, and commenced.suit as the payee of the note.</p> <p>The. defendant denied that the plaintiff was the legal ■holder and owner of the note; and further averred,'that he was in no way liable, as the note had been declared, by a competent! tribunal in Tampico, to be fully paid. On the trial, the note sued on was offered in evidence. • It was made payable to the order of the plaintiff, on which he made the following endorsement: “Pay to-the order of James L. Lawrence. January 22d, 1837.” Signed, “ C. N. Waring.”</p> <p>Lawrence gave a receipt, headed as follow's : “Received of Mr. Nicholas Waring, the following documents, endorsed in my favor, for collection on his account.”</p> <p>The note sued on was included in this receipt. It was afterwards returned by Lawrence, and the plaintiff erased his name from the endorsement. The receipt was also offered in evidence to show the nature of the endorsement, and received by the court, but w'as objected to by the defendant’s counsel.</p> <p>There was judgment for the plaintiff, and the defendant appealed.</p> <p>1. The receipt of Lawrence proves that he had no title or interest in the obligation sued on, and that he was the agent only of the plaintiff, from whom he received it for collection. The receipt was properly received in evidence, as it constitutes the very fact which is one of the subjects of inquiry. 1 Starkie on Evidence, edition of 1837, page 62.</p> <p>2. The acts, doings and declarations of persons, which are pertinent and material to the issue between the parties, may be received in evidence, especially if against the interest of the actor or declarant, as part of the res gestee. Williams vs. Palmer, 5 Louisiana Reports, 377; Malchaux vs. Lefebvre, 4 Martin, N. S., 489 ; Dismukes vs. Musgrove, 2 Louisiana Reports, 340.</p> <p>3. But if the receipt of Lawrence was not before the court, there would be no evidence that the obligation had ever been out of the possession of the plaintiff, who is the payee. The endorsement or assignment, without delivery, does not constitute a transfer. It is inchoate only. Chitty on Bills, page 263; Ramsay vs. Livingston, 6 Martin, N. S., 17.</p> <p>1. The plaintiff is not shown to be the owner of the note sued on, he having specially endorsed it to a third party, and no re-endorsement having been made thereon, the mere erasure of the special endorsement is no proof. Chitty, on Bills, page 250, and note; Arnold vs. Bureau, 7 Martin, 291 ; Robson vs. Early, 1 Martin, Jf. S., 374; Dicks vs. Cash et al., § idem., 45; Perry'¡a. Gerbeau and Wife, 5 idem., 14; Hyde et al. vs. Groce, 7 idem., 572; Griffin vs. Jacobs, 2 Louisiana Reports, 193.</p> <p>2. That the testimony offered to prove such ownership, to wit: the receipt of the plaintiff’s special endorsee is inadmissible, because it is the mere written declaration of a third party, not constituting part of the res gestae, no proof being given that it was given contemporaneously with the endorsement which it is offered to qualify, or that the party was dead, or without the reach of a commission, and that, under these circumstances,, it is res inter alios acta. Siarkie on Evidence, vol. 1, page 46 ; 312 et infra ; Phillips on Evidence, vol. 2, pages 444, 641, 645, 585 and 668.</p>

Eastern Dist. ON AN APPLICATION FOR A MANDAMUS. This is an application for a mandamus, commanding the judge of probates to enregister a foreign will. presented the petition of the testamentary executors of Samuel Hope, deceased, alleging that the will of the deceased was opened, duly proved and authenticated, and admitted to probate in Great Britain, where the deceased resided at the time of his death, a duly certified copy of which he presented to the judge of probates for…

Eastern Dist. AITEAL PROM THE COURT OP THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OP ST. TAMMANY, THE JUDGE THEREOF PRESIDING. This is an action against the endorser of a promissory note, protested for non-payment, and due notice thereof alleged to be given to the endorser. The defendant denied that the plaintiff was the legal holder of the note, or had any right to receive payment.

<p>Eastern Dist.</p> <p>APPEAL PROM THE COMMERCIAL COURT OP NEW-ORLEANS.</p> <p>This is an action against the maker "of the following promissory note:—</p> <p>“Dollars, 375. “Philadelphia, July 14,1834. .</p> <p>“ On demand, I promise to pay to the order of William Rice, Esq., three hundred and seventy-five dollars, value received, without defalcation.” “ Felix E. Rieder.”</p> <p>The note was regularly endorsed to the plaintiffs. The defendant pleaded a general denial, and want of consideration, &c.</p> <p>On the defendant’s affidavit, a commission issued to Philadelphia, to take the testimony of witnesses, deemed material to establish the defence. The order for the commission was made on the 9th May, 1839. On the 13th of May, the cause came on for trial, and the defendant failed to appear. There was judgment for the plaintiff, with six per cent, interest, (Pennsylvania) and the defendant appealed.</p> <p>assigned the following errors:</p> <p>1. That the case was tried ex parte on the 15th May, 1839, and judgment rendered against the defendant, whereas a commission to take testimony of witnesses in the city of Philadelphia was issued on the 9th May, 1839, and fifty days was allowed for the return thereof, as is shown by the order of court, to be found at page 6, of the record.</p> <p>2. That the note sued upon is dated Philadelphia, July 14, 1834, and was payable on demand ; that no demand was made before upwards of four years and eight months had elapsed, and still the judge a quo has allowed interest at the rate of six per cent., per annum from the 17th July, 1834, as will be found by reference to the note at page 5, and to the judgment at page 7 of the record : by reason of all which, appellant respectfully prays that the judgment of the court below be reversed, and judgment be rendered in his favor.</p>

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action by the endorser against the maker of a promissory note, which the former alleges he has had to pay.</p> <p>The defendant denied that the plaintiff had paid his note, but if he had, then he set up a demand in compensation and reconven'tion, which exceeded the plaintiff’s claim by two hundred and forty-four dollars, on which he was entitled to legal interest. The District Court sustained the plea, and gave judgment in favor of the defendant, against the plaintiff, for the balance, with 5 per cent, interest. The plaintiff appealed.</p>

Eastern Dist. APPEAL PROM THE COMMERCIAL COURT OF NEW-ORLEANS. This is an action by the payees against the defendants, as endorsers of a bill of exchange. One W. B. Tebo drew a bill at New-Orleans, December 19th, 1839, for nine hundred and thirty-seven dollars, payable to t he order of Lawrence & Hill, at the counting-house of S. W. Oakey & Co., in New-Orleans, three months after date. The bill was drawn on Messrs. J. H. Duggan & Co., Rodney, Mississippi.

Eastern Dist. APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is an action against the endorser of a promissory note. The plaintiff alleges, that, at maturity, said note was presented for payment at the store of the maker, (J. C. Morris) in St. Francisville, and protested for non-payment, and due notice thereof given to the endorser.

Eastern Dist. APPEAL PROM THE COURT OP THE THIRD DISTRICT POR TIIE PARISH OF WEST FELICIANA, THE JUDGE THEREOF PRESIDING. This is an action against the endorsers of a promissory note. The defendants pleaded the general issue ; and averred, that there was no legal demand and protest; and denied that they were legally notified as endorsers. They further pleaded the want of an amicable demand.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. HELENA, JUDGE MORGAN, OF THE THIRD, PRESIDING.

Eastern Dist. APPEAL FROM THE CITY COURT OF NEW-ORLEANS. This suit commenced by injunction. The plaintiff was in possession of a lot of ground, situated in the parish of Jefferson, on which the defendants held a mortgage-for the payment of the original price, and had obtained an order of seizure and sale from the presiding judge of the City Court of New-Orleans, which they were proceeding to execute.

Eastern Dist. APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS. The plaintiffs allege, they are holders of bank notes issued by the Branch Bank of the State of Alabama at Mobile, amounting to two thousand eight hundred dollars, that said bank is a corporation, created by a law of the State of Alabama, and liable to be sued. The suit commenced by attachment of property belonging to the bank in New-Orleans.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This'is an action against the maker and endorser of two promissory notes. The notes are protested and annexed to the petition for reference.</p> <p>The defendants severed in their answers. The maker of the note excepted, and denied that the plaintiff was the owner of the notes, or had a right to receive payment. On the merits, he denies having signed the notes sued on. The endorser pleaded the same exceptions, and other matters of defence set up in the answerof his co-defendant. The plaintiff, on leave, amended his petition, to correct an error in setting out the date of the notes, changing the.dates from 1837 to 1838, which was excepted to.</p> <p>The defendants also filed a supplemental answer, which was-stricken out on the trial. The defendants’ counsel excepted.</p> <p>There was judgment for the plaintiff, and the defendants appealed.</p> <p>insisted that all the amendments and errors stated were immaterial.</p> <p>urged several errors in the proceedings, and also the matters excepted to in relation to the amendments.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action by the transferee against the transferor of the following promissory note, in which the former seeks to recover the amount: “$1,000. New Orleans, 16th March, 1837.” “ Ten days after date, without grace, I promise to pay to the order of James M‘Masters, one thousand dollars, value received.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The plaintiff alleges, that he purchased six slaves from John H. B. Morton by notarial act, passed the 25th June, 1838, which was duly registered in the office of the Register of Conveyances in New-Orleans, the 29th day of the same month.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This suit is against the maker of a promissory note, who put in the plea of the general issue, but made no defence. There was judgment for the plaintiff, and the defendant appealed.

<p>In a redhibitory action for the rescission of the tsale of a slave, when the evidence leaves it doubtful whether the disease, of which the slave was afflicted, originated before or after the sale, and the jury find for the defendant, their verdict will not be disturbed.</p>

Eastern Dist. APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT. This is tin action to recover from the defendant two thousand two hundred dollars, with interest at seven per cent., being the balance due on an acceptance of four thousand dollars, for a draft drawn by the latter on the plaintiffs against a consignment of bacon hams, and which were sold at a loss. The defendant pleaded a general denial.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The plaintiff alleges, that he purchased a slave woman from the defendant with full guarantee, for the sum of seven hundred dollars in cash, and that since the purchase he discovered that she was afflicted and áffected with redhibitory diseases and vices, which entitle him to the redhibitory action, and a return of the price.

Eastern Dist. APPEAL PROM THE COMMERCIAL COURT OE HEW-ORLEANS. This is an action against the drawer ajnd acceptor of a bill of exchange, made payable to the plaintiffs. They allege, that demand was made, and the bill duly protested for nonpayment, of which the parties had due notice, who have since failed and refused to pay the same, although amicably requested thereto. The defendants pleaded the general issue.

<p>Eastern Dist.</p> <p>APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action against the maker and endorser of two promissory notes.</p> <p>The plaintiff alleges, that said notes were protested for nonpayment, and refers to the notes and protests which are annexed. He prays for an attachment against Arnet, on the ground that he is about to leave the state, without leaving in it sufficient property to satisfy his demand.</p> <p>The defendants pleaded a general denial.</p> <p>The attachment was levied on a schooner, as the property of Arnet.</p> <p>On the trial, the only evidence offered^ was the notes, protests and certificates of the notaries.</p> <p>The certificates state, that “ notices to Frederick Arnet, the endorser, was deposited in the post-office in New-Orleans, directed to him in that place, the notar}’ not being able to find him after diligent inquiry from the other endorser and other persons.”</p> <p>Upon this evidence, there was judgment for the plaintiff against Robinson, the maker, and in favor of Arnet, the endorser. The plaintiff appealed.</p> <p>insisted that judgment should go against the endorser, on the evidence of the notarys’ certificates. They are evidence of notice t.o the endorser, the notaries having complied with the act of 1827. See case of Vigors et al. vs. Carian, /. m. c. Ate 89.</p>

Eastern Dist. im»-. et ax. 00odbioii. APPEAL PROM THE PARISH COURT, EOR THE PARISH AND CITY OP NEW-ORLEANS. This is a proceeding against the surety in an appeal bond. The defendant became surety in an appeal for Palmer & Southmayd, at the suit of the present plaintiffs against them, for the annulment of a lease, and recovery of the rent due thereon.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The plaintiff alleges, that the defendant, by a written agreement, dated the 20th July, 1836, bound himself to convey one-eighth of the steamer Moravian to one J. C. Dunn, for the sum of four thousand three hundred and seventy-five dollars, who delivered him two drafts drawn on petitioner for two thousand dollars each, and one for one thousand six hundred dollars on one Wm.

Eastern Dist. Hill. & M^UNNEG-IiE vs. BOWMAN. APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. The defendant is appellant from a judgment discharging a rule, taken by him on the plaintiffs, to show cause why a writ of ca. sa., which they had caused to be issued against him, should not be set aside. . The original suit was brought by attachment of a steamboat, of which the defendant was part owner.

<p>Eastern Dist.</p> <p>APPEAL PROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the maker, on several of his promissory notes, endorsed in blank by the payee. The defendant admitted his signature, but denied that he was indebted to the plaintiff, and that he was not the legal holder of the notes, but that they belonged to L. Millaudon, against whom he might have and had a good defence. He propounded interrogatories tó the plaintiff, if he had not said he was not the owner, but that Millaudon was the owner of said notes. The plaintiff took no notice of them.</p> <p>On the trial, the defendant offered Millaudon as a witness, to make out his defence set up in the answer, which was objected to, on the ground that such a defence would avail nothing. The court sustained the objection, and the defendant excepted.</p> <p>There was judgment for the plaintiff, and the defendant appealed.</p> <p>prayed the affirmance of the judgment, with ten per cent, damages.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This suit commenced by attachment.

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. The plaintiffs had judgment against one Walley, for eight hundred and thirty-one dollars, interest and costs; levied their execution on some promissory notes on V. Wiltz, which had been transferred by their debtor to the.defendants. The latter refused to recognize the plaintiffs’ right to any part of the notes thus transferred.

Eastern Dist. APPEAL FROM THE COURT OE THE FOURTH JUDICIAL DISTRICT, POR THE TARISn OP IBERVILLE, JUDGE COOLEY, THE THEN JUDGE OP THE DISTRICT, PRESIDING. On the 9th March, 1838, the plaintiff filed his petition and bilan, and obtained a stay of proceedings, under the insolvent laws.

<p>Where the defendant offers no evidence in support of his pleas, and nothing to support his appeal, judgment will be affirmed, with the maximum of damages.</p>

Eastern Dist. ' APPEAL FROM THE COURT OF THE FOURTH DISTRICT FOR THE PARISH OF IBERVILLE, JUDGE NICHOLLS, OF THE SECOND DISTRICT, PRESIDING. This case was before the court and remanded, at the March term, 1839. See 13 Louisiana Reports, 151. There was intervention filed by O’Duhigg & Chategnier, to whom the notes in suit had been transferred pendente lite.

Eastern Dist. This is an action against the maker of three promissory notes, payable to the order of one Robert D. Percy, and by him endorsed in blank. The plaintiffs allege, that the payment of said notes is secured by a mortgage on a plantation and slaves, which is expressed in an act of sale with mortgage, between one T. Lesassier and the said A. Dashiell, bearing even date with said notes, and dated the 8th of March, 1836.

Eastern Dist. APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITY OP NEW-ORLEANS. The plain tiff instituted suit against the'defendant, Reynolds, on his check for three thousand dollars, drawn on the Union Bank of Mississippi, and duly protested for non-payment, and attached two hundred and fourteen bales of cotton, in the hands of Hobson & Gooch, commission merchants in New-Orleans. They were duly cited as garnishees, and required to answer interrogatories.

<p>Eastern Dist.</p> <p>ON AN APPLICATION POE A MANDAMUS.</p> <p>This is an application for a mandamus, to be directed to the judge of probates for the parish and city of New-Orleans, commanding him to grant a certain order, and perform certain duties set forth in the following affidavit of the attorney of the widow Fortier, the applicant: '</p> <p>“ Madame Annette Lallande, widow of Adelard Fortier, deceased, now residing in the parish of New-Orleans, shows, that the late Adelard Fortier died in the parish of Jefferson, in June, 1833, and his succession opened in the court of probates for that parish ; that she was confirmed as the natural tutrix of her minor children, and Joseph Lallande was appointed under-tutor; that she has rendered an account of her administration, as tutrix, which has been duly homolo-gated by the Court of Probates for the parish of Jefferson ; according to which, the succession of Fortier is liquidated, and the portion of each of the minor children ascertained to be four thousand three hundred and sixty-two dollars.</p> <p>“ That since the death of her husband, she has removed with her minor children to the parish of New-Orleans, where she has resided for the last four years, and where she has since bought property in her own name ; that said Joseph Lallande, the under-tutor of said minors, has resigned his functions, and no under-tutor has been appointed; that desiring to avail herself of the privilege granted to her by law to give a special mortgage on her property in favor of her children, and thereby avoid the general mortgage resulting from her tutorship, she has applied, by petition, to the judge of the Court of Probates for the parish and city of New-Orleans, where she resides, to have an under-tutor appointed to her minor children ; and also an order that a family meeting, composed of the nearest relations, be convened before a notary, according to law, to take into consideration the subject matter of said petition which said order, this affiant avers, the judge of probates refuses to grant, on the ground that the succession of Adelaide Fortier was opened in the parish of Jefferson, and he has ño jurisdiction over the same, but the judge of the Court of Probates for the said parish of Jefferson, has exclusive jurisdiction.”</p> <p>Grima, for the widow Lallande, applied for the mandamus, ordering the probate judge to grant the order for the family meeting, and appoint an under-tutor, on the following grounds :</p> <p>1. That the appointment of tutors to minors, belongs to the judge of probates of the domicil or residence of the father and mother of the minors. Code of Practice, article 944.</p> <p>2. In all cases concerning minors, the judge of the minor is the judge of the Court of Probates, within whose jurisdiction the minor resides. 2 Moreau’s Digest, 59, section 8.</p> <p>3. The domicil of the minor is that of the tutor. Code of Practice, 48.</p> <p>4. The proceedings of a Court of Probates of a parish in which neither the minor, his tutor, nor under-tutor resides, are null and void. 9 Martin, 489.</p> <p>1st. That the Supreme Court was without jurisdiction to issue a mandamus in this case, because it possesses appellate jurisdiction only. Constitution of Louisiana, article 4, section 2.</p> <p>2. The tutor is required to give bond and security, which is to be taken by the judge of probates, who has appointed or confirmed him in office. Louisiana Code, 330, 331, 3298, 3308; Session Act? of 1830, page 46, section 1; Code of Practice, 997.</p> <p>3. The jurisdiction of this judge lasts as long as the tutorship, and cannot be avoided by the change of domicil. Code of Practice, 997.</p> <p>4. The appointment of the family meeting must be made by the judge who appointed or confirmed the tutor. Louisiana Code, 307; Code of Practice, 997.</p> <p>5. The Probate Court of the parish of New-Orleans, has neither the means nor the jurisdiction to ascertain and know the liabilities of the tutrix; and the nearest relations and friends of the minors, whose father died in the parish of Jefferson, reside there, which is an additional reason why ■ the probate judge of that parish should have the exclusive control'of this matter.</p> <p>G. B. Duncan appeared at the bar, and argued on behalf of the judge.</p> <p>A re-argument, on a re-hearing, was had in this case.</p> <p>on the re-argument, insisted that the Supreme Court had jurisdiction, and was competent to grant the mandamus.</p> <p>1. That this was a Supreme Court of appellate jurisdiction, with a revisory power over the inferior tribunals, and to grant relief in all cases where justice and reason require it.</p> <p>2. An appeal to the Supreme Court lies in all final decrees of the inferior courts, over which this court has appellate jurisdiction, in all matters of controversy where the amount exceeds three hundred dollars.</p> <p>3. The refusal of the Court of Probates to appoint an under-tutor, and order the family meeting as prayed for, is a final decree of said court, and this court possesses the remedial power to prevent a failure of justice.</p> <p>4. The article 4, section 2, of the Constitution of Louisiana, which declares that the Supreme Court shall have appellate jurisdiction only, must be construed, in contradistinction from original jurisdiction, and according to the laws in force in this country when the constitution was framed.</p> <p>5. That whether the Supreme Court acts by mandamus or otherwise, in reviewing a case, it is not less in the exercise of its appellate jurisdiction, and -that this appellate jurisdiction is merely exclusive of original jurisdiction.</p> <p>6. The articles 828, number 2, and 838-9, of the Code of Practice, are declaratory of the legislative will, as to the construction of the Constitution of Louisiana, on the question of jurisdiction of the Supreme Court, as a court of appellate jurisdiction only.</p>

Eastern Dist. APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action by (he owners and agents of the steamboat Convoy, on a marine policy of insurance in the usual form, executed by the defendants, insuring said steam-boat on her voyage at and from New-Orleans through the mouth of the Mississippi river to Mobile and back.

Eastern Dist. APPEAL PROM THE CITY COURT OP-NEW-ORLEANS. The defendant is sued as one of the owners of the steamboat Columbia, for the balance of a claim for wages due the engineer, evidenced'by the following due bill of the captain : “DueMr. William Shaurn four hundred and seven dollars and ninety-three cents, being for balance of wages due him on steam-boat Columbia, up to 19th July,cí837.

<p>Notice to the endorser, left at his office with a clerk, he not being in, is sufficient to render him liable.</p>

<p>Eastern Dist.</p> <p>APPEAL PROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the acceptor of a bill of exchange.</p> <p>There was an exception and plea to the jurisdiction of the Commercial Court, averring, that the defendant resided in the parish of Jefferson, and out of the jurisdiction of the court. Notice of trial was served on the defendant’s counsel, and the plea or exception overruled on an ex parte hearing, the defendant’s counsel not attending.</p> <p>The defendant pleaded the general issue, and reserved the benefit of his plea to the jurisdiction.</p> <p>The cause was fixed for trial by the plaintiffs, and notice served on the counsel of the defendant.</p> <p>At the trial, the defendant’s counsel failed to appear.</p> <p>The plaintiffs called a witness, who swore that “the signature or endorsement of C. J. Henshaw, (the payee of the draft) to the note sued, is that of C. J. Henshaw.”</p> <p>On this evidence, and the production of the draft, the plaintiffs had judgment, from which the,defendant appealed.</p> <p>prayed the affirmance of the judgment, with damages.</p> <p>insisted that the defendant had not been properly and legally notified of the time and place of trial, either on his plea to the jurisdiction of the court, or on the merits ; and that both were improperly tried in his absence.</p> <p>2. That the testimony of the witness, as stated in the record, is not legal evidence of the signature of the endorser,, under whom the plaintiffs hold the draft.</p>

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action against the maker and endorsers of a promissory note, given for part of the price of certain lots. The defendants averred, that said lots were since sold by them to Sewell and Clannon, who assumed the payment of the note sued on, and pray that they be called in warranty, and required to pay-the same.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN PRESIDING. This is an action against the defendant, on two of his promissory notes, given for a series, or twenty “ city bonds,” ' issued in negotiable form, payable in twenty years, with six per cent, interest, in semi-annual dividends.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE WATTS PRESIDING. The plaintiffs instituted suit, by attachment, for the amount of a note due by the defendant, and'for two others not due.

<p>Where one guaranties the payment of an existing debt, the obligation he contracts is essentially one of suretyship,' in whatever form of words it may be clothed.</p> <p>So, whatever may be the character of the primitive obligation, whether an endorsement or other commercial engagement, the guarantor’s accessory obligation does not partake of its commercial character, but is absolute, if the debt is not paid.</p> <p>, ' The guarrantor of a note endorsed by another, is not entitled to notice of protest in order to make him liable.</p> <p>Contracts of guaranty of existing debts, entered into in this state, are to be construed in reference to the municipal law, or Louisiana Code, and are not regulated by the ¿ex mercatoria.</p> <p>So, in this case, the defendant guarantied the payment of a promissory note, and became the surety of the makers, although it does not appear the latter were acquainted with his engagement.</p> <p>The defendant as guarantor, cannot claim to be discharged from liability by the neglect of the plaintiff to give him-notice of a demand and nonpayment.</p> <p>Where one payment^of *an theoM^ationhe contracts is essentially one of suretyship, in of'words'it may be clothed,</p> <p>go what may be the cha-muwe°ftobiFga-nSórsement or other commer-cialengagement, accesforya'obH-gation does not partake ot its commercial cha-absolute bif the debt is not paid,</p> <p>The'guarantor of a note en-theiTis not entl-tied to notice of protest, in order to make him</p> <p>of guaranty of ex-tered into in stitc uro to ho construed in re-municipal0 law! c d Loujsiana not regulated by ^•8fa merca-</p> <p>So, in this case, the defendant guarantied the promfslorynote! surety60!!?6 the makers,although it does not appear the latter •were acquainted menthlSenSa§e"</p> <p>The defend-tor’cannotciaim udmS^by the neglect of the plaintiff to give him notice of a demand and non-payment.</p>

Eastern Dist. APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This case was before the court at the last May terra, on the appeal of the intervenors. See Ante, 10. On the return of the case to the Parish Court, the plaintiffs, being satisfied with their judgment against the defendants, took a rule on Messrs.

Eastern Dist. APPEAL FROM A FINAL JUDGMENT OF THE COMMERCIAL COURT OF NEW-ORLEANS. This suit was instituted in the first District Court, aud before final judgment, removed to the Commercial Court.

Eastern Dist. ATI’EAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT, JUDGE BUCHANAN TRESIDING. This is an action by the surviving part owner of a schooner, called the “ Pomona,” who sues in his own behalf, and as curator of the estate of one William Facundus, deceased, the other partner, to recover said vessel from the defendant.

<p>A party cannot be allowed to appeal from a judgment confessed by him, or in which he has acquiesced, by executing it voluntarily : Neither can he have such judgment amended on the appeal of the adverse party.</p> <p>Where a vendor and mortgagee goes before a notary, and makes a declaration of release of his mortgage, on certain conditions, it cannot have the force of a contract, without the assent of the mortgagor, although the stipulation is in his favor. But the declaror is bound to carry into effect the intention expressed, whenever the other party signifies his readiness to accept the terms offered, if they have not been retracted.</p> <p>An injunction case, when the answer is in, may be set for trial, pending a rule to show cause why the injunction should not be dissolved, and on the day fixed for the trial of the rule.</p> <p>If, in an answer to an opposition obtained against an order of seizure and sale, the party sets up matter different from that in his original petition, or which amounts to a replication, it may be disregarded.</p> <p>The record is the best evidence to show that certain persons were parties to particular proceedings had in the Probate Court, and is admissible.</p> <p>A party cannot be Allowed to appeal from a judgment confessed by him, or in which he has acquiesced, by executing it voluntarily: neither can he have such judgment amended on the appeal of the adverse parly.</p> <p>"Where a vendor and mortgagee goes before a notary, and makes a declaration of release of bis mortgage on certain conditions, it cannot have the force of a contract without the assent of the [houfhthestipu-Ration is in his deciarorisbound effect'the intention expressed, other party sig-*e 1|™3 not been re-Uacted'</p> <p>Ail injunction case, when the answer is in, may be set for trial, pending a rule to show cause why the injunction should not be dissolved,and On the day fixed for the trial of the rule.</p> <p>If, in an answer to an opposition obtained against an order of seizure and sale, the party sets up matter different from that in his original petition,or ■which amounts to a replication, <vit may be disregarded.</p> <p>The record is thebestevidence to show that certain persons were parties to particular proceedings had in the Probate Court, and is admissible.</p>

The plaintiff, in this case, obtained an order of seizure and sale against a plantation and slaves, known as the Arlington Place, the 20th May,- J839, for one instalment of the price. The present defendant made opposition, and obtained an injunction staying all proceedings on said order. At the June term of the District Court following, the injunction was dissolved, and the defendant took .a suspensive appeal to the Supreme Court.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF ST. TAMMANY, THE JUDGE THEREOF PRESIDING. This is an action against the maker and endorser of two promissory notes. The defendants excepted to the right of the bank to sue, having suspended specie payments, and thereby forfeited its charter. The exception was overruled. There was a general denial pleaded.

Eastern Dist. APPEAL FROM THE COURT OF THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OE ST. TAMMANY, THE JUDGE THEREOF PRESIDING. This is an action against the maker of two notes. The defendant excepted to the capacity and right of the bank to sue, having suspended specie payments, and thereby forfeited its charter. These exceptions were overruled, and from judgment against 'the defendant he appealed.

<p>Eastern Dist.</p> <p>APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, FOR THE ' PARISH OF TERREBONNE, THE JUDGE THEREOF PRESIDING.</p> <p>This is an action instituted by the heirs and legal representatives of Alexander Verdun, deceased, to cancel and annul sundry sales of tracts of land in the parish of Terrebonne, made by the said Verdun to Jean Baptiste Gregoire, and six or seven other colored persons, alleged to be his illegitimate bastard children.</p> <p>The plaintiffs show, that they are the collateral and legal heirs of said Verdun, and allege that said sales are fraudu-. lent and simulated, being made as disguised donations to illegitimate colored bastard children, and not acknowledged. They pray that these sales be cancelled, and that they be declared owners of the property by inheritance. -</p> <p>The defendants resisted the plaintiffs demand by a general denial; and denied specially that they were the illegitimate, or bastard children of Alexander Verdun, deceased, and that the plaintiffs could not be allowed to prove or offer evidence of this fact, and that said sales were valid in law ; that the plaintiffs were without any cause of action, and are not the legal heirs of Alexander Verdun.</p> <p>Upon these pleadings and issues the cause was tried.</p> <p>On the trial, the plaintiffs proved their heirship, and produced the several acts of sale from Alexander Verdun to the defendants. Evidence was then offered to prove that the defendants were the illegitimate bastard children of Verdun, to which their counsel objected as inadmissible ; but it was received, and they took a bill of exceptions.</p> <p>The judge was requested to charge the jury, that if by the evidence the sales to the defendants consisted of more than the vendor was legally authorized to dispose of in their favor, that they were, nevertheless, not null; but that the value of the disposition should be reduced to the disposable portion. The court refused, and the defendants took a bill of exceptions.</p> <p>The jury returned a verdict for the plaintiffs against all the defendants, except J. B. Gregoire; and found in his favor. The other defendants appealed.</p> <p>insisted that the judgment should stand. It was clear the defendants were not capable of receiving any disposition in their favor, either inter vivos or mortis causa: Louisiana Code, 1478; Civil Code of 1808, 212, article 17. 1 Louisiana Reports, 495.</p> <p>1st. A donation made under the disguise of an onerous contract with the design to extend the liberality of the donor beyond what the law allows him to dispose of, is not null, but reducible to the disposable portion, and the charge of the court to the jury on the trial, that it was absolutely null, was erroneous: Paillet, note book 3, article 920, Trahan vs. M'Manus, 2 Louisiana Reports, 215. Toullier, l. 3, tit. 2, No-172, 85, 176; Toullier, l. 3, tit. 3, De C. No. 164.</p> <p>2d, An act cannot be attacked as simulated until it is shown that the simulation is hurtful to the rights of a third person ; and a gratuitous disposition of property can only be reduced when it extends the disposable portion, and, as a necessary consequence, no judgment in relation to the one or the other can be given, until the person seeking to destroy the act, or reduce the disposition, has shown the amount of the donor’s property at his decease: 3 Toullier, No. 161; 12 Martin, 70, 255; Louisiana Code, .1489, 1491, 1480, 1474, 1492 ; Johnson us., Davidson, 6 Martin, 506.</p> <p>3d. The proof of the descent of free illegitimate children of color from a white father, is prohibited by our law, and testimony was improperly admitted on the trial to prove it. Napoleon Code, 331, 334, 340, and note d.; Paillet, 341, 342, 203, 205, 757; 1 Toullier, No. 972, 976; Paillet, note d. No. 2, 340; note a. No. 2, 762; note d. No. 2, 3, 340; jDuranton, volume 3, No. 205-6-7, 242, 233 ; volume 7, No. 238,239 ; Merlin’s Reports: tit. Filiation, volume 17, article 335, 342; 343, volume 18; Louisiana Code, 234, 898, 254, 212, 221, 222, 226, 256, 258, 220, 200, 912, 913.</p> <p>4th. If the defendants are the illegitimate children of Alexander Verdun, they are capable of receiving by donation from him to the whole amount of his property : Louisiana Code, 1456, 1483, 1470, 1473, 1475, 221, 199,- 200, 201, 202, 220, 254, 916, 917, 912, 913, 914, 916,' 918, 921, 911, 915, and 917.</p> <p>5th. A sale is not null because the vendee does not appear in the act and accept it, or because made to a minor. Baudin vs. Roliff, 1 Martin, N. S. 165; 11 Martin, 217; 3 Toullier, No. 196.</p>

Eastern Dist. APPEAL PROM TIIE COURT OP THE SECOND DISTRICT, POR THE PARISH OP ASCENSION, TIIE JUDGE THEREOF PRESIDING. This is an injunction case.

Eastern Dist. APPEAL FROM THE COURT OF THE SECOND JUDICIAL DISTRICT, FOR THE PARISH OF ASCENSION, THE JUDGE OF THE DISTRICT, PRESIDING. This is an action to recover six years wages, as an overseer.

Eastern Dist. ATBEAI. FROM THE COURT OE FROBATES, FOR THE FARISH OF EAST BATON ROUGE. The syndics of the creditors of the estate of Win.

Eastern Dist. APPEAL FROM THE COURT OF THE FIRST DISTRICT, JUDGE BUCHANAN, PRESIDING. This is an action to recover the sum of forty-one thousand five'hundred dollars from the defendant, as the difference between the first and second sales of certain property bid in by him, and re-sold at his risk, for the alleged refusal to comply with the condition of the first sale.

Eastern Dist. ON AN APPLICATION FOR. A MANDAMOS. The plaintiffs, J. A. & T. Cowles, in the original suit, out of which the present proceedings grew, by their agent in New-Orleans, made affidavit, that the defendant, John Haggerty, was justly indebted to them in the sum of eight thousand one hundred and eleven dollars, with interest; that . . ... 1/1 they have a privilege or mortgage on the steam-boat Corvette, owned by the defendant, who resides out of the state, and fear…