Volume 15 — Louisiana Reports

The plaintiff alleges he is owner of a tract of land, nearly six-arpents, fronting on the Mississippi, with a back concession or double depth of eighty arpents, running back near the Bayou Lafourche, and that the titles to said tract were confirmed by the board of commissioners : That he and those under whom he claims have been in possession under Spanish grants ; the first in 1775, and the second, to the back concession, dated in March, 1796.

1st. That the court appears to have assumed, erroneously, that the plaintiff and appellant had not shown title in himself to all the land embraced by the patent, for the double concession. 2nd.

The plaintiff alleges, that he entered into a contract or agreement with the defendant, to carry on mercantile or commission business in New-Orleans, and made preparations by renting a house, advertising, printing cards, &c., to embark in the business in pursuance of said agreement, when the defendant withdrew from it without any just cause. He alleges that the defendant is liable for said expenses and for damages, according to an account annexed.

In this case the curator of the estate of J. Baptiste Désormes, filed an account or tableau of distribution, in the Court of Probates, and demanded its homologation. Two oppositions, only, were filed, which were partly admitted, and the tableau thus amended, was confirmed by a judgment of the court.

This is an action against the makers of two promissory notes. The defendants admitted their signatures, and pleaded a general denial. The plaintiff made full proof of his demand, and had judgment, from which the defendants appealed.

This is a suit against the acceptor of a bill of exchange. The defendant pleaded a general denial, and denied specially, that the plaintiff was the lawful holder of the bill sued on, &c. On the trial, the plaintiff proved his demand, and had judgment, from which the defendant appealed.

<p>APPEAL FROM THE CITY COURT OF NEW-ORLEANS.</p> <p>This is an action against the maker of a promissory note. There was a general denial, and no defence at the trial.</p> <p>The court was of opinion, the defendant, by his plea or answer, admitted the note sued on to be his, gave judgment for the plaintiff, without any other evidence. The defendant appealed.</p>

This is an action against the endorser of a promissory note. The defendant pleaded a general denial, admitted his signature, and prayed for a jury. On the trial, the plaintiff produced the note, protest and notice thereof to the endorser, and had a verdict and judgment. The defendant obtained an appeal, but made no defence in this court.

The plaintiff alleges, he has been in possession of one hundred acres of land more than a year, in accordance with an agreement between him and the defendant; that he was to pay five hundred dollars in five years,in equal annual instalments, for said land, and in the meantime have the privilege of cultivating a field of thirty-six acres, until he could open and clear twelve acres of the one hundred acre tract: That said defendant refuses to make title, or allow him to…

The defendants are sued as maker and endorser of a note. They plead want of amicable demand, want of title in the plaintiff, irregularity and nullity in the protest, and pray for a dismissal of the suit, discharge of the endorser, and a trial by jury. The plaintiff offered in evidence, the note, protest and due notice to the endorser. The jury was waived, and there was judgment for the plaintiff. The defendants appealed.

<p>Appeals both for delay and judgment, affirmed with ten per cent, damages.</p>

This is a suit against the maker of a note, who made no defence. The plaintiff proved the signature, and had judgment. The defendant appealed.

This is an action against the maker of several promissory notes. He admitted his signature; and denied that the Union Bank could sue or stand in judgment, as it had forfeited its charter by a suspension of specie payments.

This is a suit against the makers and endorser of a note. There was a general denial pleaded, and no defence made. The plaintiffs made their proof and had judgment in solido against the defendants. The endorser alone, has appealed.

<p>Where a nuncupative will, by public act, states Only that the “ testator declared, in the presence of the witnesses, that the instrument contained his last will and testament, being dictated to the notary, in the presence of the witnesses,” it is insufficient and null for informality ; there being no mention of its having been dictated by the testator to, and written by the notary as dictated.</p> <p>There must be five witnesses to a nuncupative will under private signature, unless it is made in the country, and a greater number than three witnesses cannot be obtained, which must be made to appear.</p> <p>Where a nuncupalive wi public act, only that dared, in the witnesses,0^ that states the the instrument contained his last will and tesdictated by^hf notary in presence oí the witnesses,” it is innuUCl<{or info”maiity, there-being no raention of its having testator to, the notary «s dietated.</p> <p>There must be five witnesses to a nuncupative vate UsigTOture" i^the* cmmtry6 and a greater b three witnesses tained, which ^“s‘a^emade t£></p>

The defendant issued as endorser of a note. He denied that the plaintiff was owner, and had right to sue on the note; and also, averred, that part of it was paid. The plaintiff had judgment on the production of the note and protest in evidence ; there being no testimony for the defence. The defendant appealed.

This is an action of partition, instituted in the Parish Court of New-Orleans, by M. Gordon, Senior and Junior, and the firm of Lizardi & Co., against N. & J. Dick & Co., and several other commercial firms and individuals, for the partition and liquidation of a commercial firm existing between the plaintiffs and defendants, styled the “New-Orleans Tobacco Warehouse Company.” The defendants, James Dick & W. J. M‘Lean, representing the firm of N. & J. Dick & Co., excepted to…

This is an action against the maker and endorser of a note. The plaintiff alleges demand, protest and due notice to the endorser. There was a general denial, but no appearance or defence by the defendants. The plaintiff made proof of his demand and had judgment. The defendants appealed.

This is an action against the endorser of a promissory note. There were exceptions taken to the authority of the deputy clerk to sign the citation and other process, on the ground that he had never been duly qualified and sworn, and that he did not use the name of his principal, but simply signed his name, as deputy clerk. The facts are, that he was sworn as a deputy in the Parish Court, but not in the District Court. The principal clerk was clerk of both courts.

This is an action instituted by the widow and heirs of Manuel Lopez, deceased, against the defendant, a free woman of color, to annul the sale of a lot of ground, in the town of Baton Rouge, by their ancestor's debtor,. Gregorio Berghel, the 25th January, 1833, on the ground that ,it is false, simulated and fraudulent.

This is an action to recover back the sum of three hundred and twenty dollars, which the plaintiff alleges he paid to the defendant as the amount of a judgment and costs, which the latter had obtained against him in the District Court, but which was afterwards reversed on a devolutive appeal. There was a plea admitting the judgment, but denying that it was ever paid by the plaintiff as he alleges.

<p>The failure of one of the sureties to demand the benefit of division, at the trial, does not authorize a judgment in solido against him, but leaves him liable for the whole debt in case of the insolvency of his cosureties.</p> <p>In case a surety demands the benefit of division at the trial,- judgment must be for his virile share, absolutely; it cannot be for a larger sum; but not having done so, he must remain liable in case of the future insolvency of his co-sureties.</p> <p>The, failure of one of the sureties to demand the benefit of division, at the trial, does not authorize a judgment of in solido against him, but leaves him liable for the whole debt in case of the insolvency of his cosureties.</p> <p>In case a surety demands the benefit of division at the trial, Judgment must be for his 'vinle share, absolutely; it cannot be for a larger sum ^ bul not having done so, he must remain liable in case of the future insolvency of his co-sureties.</p>

This is an action against the endorser of a promissory note. The defendant admitted hia signature, but denied his liability under his endorsement. At the trial, the plaintiff offered the protest and the notary’s certificate of notice to the defendant, of the dishonor of the note, in evidence.

This is an action by Luke Lesassier, late a minor, against Timoleon Lesassier, lately his tutor, to annul certain proceedings had in the Probate Court., in which T. Lesassier endeavored to release the general and tacit mortgage of the plaintiff, and give a special mortgage on certain property in lieu thereof. After the release thus effected, T. Lesassier sold a plantation and slaves, which had been previously effected by the general mortgage, to Addison Dashiell.

The plaintiffs allege, that one Lloyd Gilbert was their tutor, who was largely indebted lo them, and they obtained a judgment for the amount due, which gave them a lien or mortgage on all the property of the tutor; that the defendants are in possession of very valuable property in the town of Baton Rouge, which they obtained from Lloyd Gilbert, and which is, as they allege, subject to their mortgage.

<p>Where the wife claims a separation from bed and board, on the ground of repeated acts of ill treatment and cruelty by her husband, which is supported by evidence, and there is no hope of living in peace, she will be entitled to relief.</p>

This is a suit instituted by Bob and Milly, colored persons, and their seven children, to recover their freedom under the will of Timothy O’Hara, their former owner, and who made his will and died in the stale of Mississippi, where the plaintiffs were at the time of his death. John Nugent and two other persons were named testamentary executors in the will.

This is an action instituted by the attorney of the absent heirs of J.ames H. Mix, deceased, to annul his last will and testament. On the 26th of May, 1839, J. H. Mix made his olographic will, in which he bequeathed his plantation in Pointe Coupee, and several slaves, to one Ferdinand Miller, a youth he had raised, to be delivered to him by the executor when he should arrive at the age of majority, and in the meantime he was to be educated at the discretion of the executor.

This is an action by Thomas B. Percy, tutor of the minor Provan, against H. D. Richardson, testamentary executor of William Provan, deceased, to compel him to account and pay ove)-10 h¡m9 as tutor, one-half of the net proceeds of the estate °f the deceased, according to the provisions of the will. He prays for a partition of said succession, and that the attorney of absent heirs be cited to appear and become a party thereto.

<p>Under the Roman law, no resolutory condition was implied in the contract of sale. If the pactum commissorium, was not expressly stipulated, the vendor had no right to take back his property if the price was not paid; with such a stipulation, if the price was not paid at the appointed time, the sale was void.</p> <p>If, after the expiration of the stipulated lime, the vendor sued for the price, he was considered as acknowledging the sale, and precluded from treating it as a nullity; or recovering back his property.</p> <p>Under the Louisiana law, the effect of the resolutory clause implied in all synallagmatic contracts, is not to render the contract void, ipso facto, but only* voidable, on the demand of the party complaining. There is, therefore, no inconsistency in suing for the rescission of the sale, after having claimed the price without success.</p> <p>So, where the vendors sued the vendee for a specific compliance with the terms of adjudication, and payment of the price, and failed to enforce payment: Held, that an action for a rescission of the sale afterwards, was '"well brought.</p> <p>Under the Roman law, no resolutory condition was implied in the contract of sale. If the pactum commissorium, was not expressly stipulated, the vendor had no right to take back his property if the price was not paid; with such a stipulation, if the price was not paid at the appointed time, the sale was void.</p> <p>If, after the expiration of the stipulated lime, the vendor sued for the price, he was considered as acknowledging the sale, and precluded from treating it as a nullity; or recovering back his property.</p> <p>Under the Louisiana law, the effect of the resolutory clause implied in all synallagmatic contracts, is not to render the contract void, ipso facto, but only* voidable, on the demand of the party complaining. There is, therefore, no inconsistency in suing for the rescission of the sale, after having claimed the price without success.</p> <p>So, where the vendors sued the vendee for a specific compliance with the terms of adjudication, and payment of the price, and failed to enforce payment: Held, that an action for a rescission of the sale afterwards, was '"well brought.</p>

This case comes before the court on an application for a mandamus, commanding the parish judge, to appoint a curator adhoc, to certain absentees, who are made defendants in a suit, pending in this court. The record shows, that William De Forest Holly and others, non-residents and foreigners, obtained a judgment against Eugene Ory, in the Parish Court for (he parish and city of New-Orleans.

This is an action on a policy of insurance to recover the sum of eighteen thousand dollars, for the loss of a block of brick buildings, insured for this sum by the defendants, and destroyed by fire. The defendants admitted the insurance and loss, but averred they had tendered and paid the amount lawfully due and for which they were liable; and further state, that they are entitled to recover nine hundred dollars for brick walls and brick used in rebuilding.

The plaintiff, Martha Hart, a widow, residing in Tennessee, alleges, she is the sister of Joseph Thompson, late of the parish of Iberville, who died without leaving any legitimate heirs, ascendants or descendants; and that she is his nearest collateral and sole legal heir. She alleges, that the will of her deceased brother, which has been admitted to probate, is null and void on several grounds. 1.

<p>APPEAL FROM THE COURT OF THE THIRD DISTRICT, FOR THE PARISH OF IBERVILLE, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This is an action to recover damages on the warranty against the heirs of the vendor, by those of the vendee, on account of eviction.</p> <p>The plaintiffs show, that in 1827, Abram Wright bought of Joseph Erwin a tract of land and slaves for the piice and sum of eleven thousand dollars, payable in fifteen years; and in the mean time was to pay an annual rent of eleven hundred dollars per annum until final payment. At the time of this sale the Bank of the United Stales held a mortgage on said property, to secure the payment of twenty-one thousand dollars, due it by Joseph Erwin, and which was not disclosed by him at the said sale, to the vendee, Abram Wright. The petitioners also allege, that before the death of Erwin, in 1829, Wright made complete payment of the price, to wit, the sum of eleven thousand dollars. In the same year Wright died, and left a widow and one child. The widow afterwards married Frederick N. Bissell, who joins her in this suit. That in 1833, the Marshal of the United States for the Eastern District of Louisiana, levied an execution on said plantation and slaves, which issued on a judgment in favor of the Bank of the United.States against the widow and heirs of Joseph Erwin, for the balance of the said mortgage dpbt still due and unpaid, amounting to ten thousand five hundred dollars, with interest; and the same was sold, to sundry purchasers, by which the widow and heir of Wright were evicted.</p> <p>The plaintiffs, Bissell and wife, in her own right, and as tutrix and co-tutor of the sole minor child and heir of Wright, instituted this suit tire 4th April, 1834, to recover damages in consequence of the eviction. They allege, that the property was worth twenty-seven thousand dollars at the time of said eviction, which, with the loss, revenues, &c., makes their claim for damages thirty-five thousand six hundred and thirty dollars. They further state, that if they fail to show full payment of the original price by Wright in 1829, that they were not bound to pay the same until the end of fifteen years from the date of the sale in 1827, by paying eleven hundred dollars per annum rent, or interest.</p> <p>They pray judgment for the increased value of the property at the time of eviction, being sixteen thousand dollars over and above the original price, and for othér damages which they have suffered in consequence of the said eviction.</p> <p>The defendants plead sundry objections, and also denied the heirship of the plaintiffs, and likewise denied they themselves were the heirs, pure and simple, of Joseph Erwin, but that his estate was accepted with the benefit of inventory. They admit the sale of 1827, but deny that any of its terms or stipulations have ever been complied with, either by Wright in his lifetime, or by other persons since or before his death, so as to entitle his heirs or any other person to the benefits and advantages of the said agreement or lease; that . the rent was never paid ; nor the purchase money or any part thereof; that at the time of making (his agreement, Wright was well aware of the incumbrance or mortgage existing on the property, and especially the mortgage to the Bank of the United States. That subsequently, to wit, on the 25th November, 1828, another agreement was entered into between Erwin and Wright, in which the latter acknowledged and declared he had on that day rented the premises, he then living on them, together with all the slaves and farming utensils, for which he was to pay the next or ensuing year eighteen hundred and forty-seven dollars. That this last agreement., which gave to Erwin certain privileges on the crop, operated the annulment and discontinuance of the first. The defendants pray that the plaintiffs’ demand be rejected.</p> <p>Upon these issues and pleadings this cause has been several times tried, and was formerly twice before this court. See 10 Louisiana Reports, 524; 13 Idem,., 143.</p> <p>In the course of the trial several bills of exception were-taken by the defendants to the opinion of the court on questions or points arising on the introduction of evidence, and the charge of the judge to the jury. These several points are taken and fulty stated in the opinion of this court, which need not be recapitulated.</p> <p>There was a verdict and judgment for the plaintiffs, giving them four thousand dollars; and after an unsuccessful attempt to obtain a new trial the defendants appealed..</p> <p>endeavored to show that neither Wright nor the plaintiffs had such a contract of sale, or had done any thing to entitle them to the privileges and rights of vendees evicted, on the warranty against (he defendants as vendors. That there was error in the decision of the court, excluding evidence, which went to show the true and proper relations between , . , . . , ... , , the parties, and that Wright was nothing more than a lessee, and had even failed to comply with his engagements as such.</p>

In this case Luke Lesassier obtained an order of seizure and sale against properly in the possession of A. Dashiell, who had purchased it from T. Lesassier, the tutor of Luke, who claimed to have a mortgage resulting from (he tutorship.

This is an action against the syndics of the creditors of J. B. Ory, in which' the plaintiff, as the assignee of M. Bergeron, and holder of six notes of the insolvent, claims from the defendants the amount of certain dividends arising from the property sold.

This is an action of revendication. The plaintiffs Edward, Furcy and Louise Verret, children of Jacques Verret, now deceased, allege that their brother Solomon Verret, died intestate, in 1818, without descendants, and no ascendants but his father, possessed of a large property, of whom they became legal heirs; their common father having contracted a second marriage, in consequence of which he could only claim the usufruct of his deceased son’s property.

<p>APPEAL PROM THE SAME COURT.</p> <p>By agreement of counsel the same judgment must be rendered as in the case of Verret and others vs. Theriot.</p> <p>The judgment of the court below is, therefore, affirmed with costs.</p> <p>A rehearing was granted at the instance and on the prayer of the plaintiffs.</p>

This is an action against the maker and endorsers of a promissory note, duly protested ; and the notary certifies that he delivered notice of protest to the first endorser and payee, in person; and left notice for the defendant, who is the second endorser, “ at his office, he not being in.” The defendant pleaded a general denial. The others made default. There was judgment against all the defendants in solido, and the second endorser appealed.

This is an action against the maker and endorsers of a promissory note. ‘The endorsers .pleaded a general denial, and alone made defence.

<p>The court should carry into effect the meaning of the parties, by correcting an error of calculation, apparent on the face of the papers.</p> <p>Where judgment by consent was entered up for one thousand dollars less than the amount of the notes sued on, this court altered the judgment to the true sum, and when it was not specified or asked for in the petition, but appeared from the notes annexed.</p>

This is an action by the commercial firm of Tiernan & Co. against the defendant, on his promissory note. He pleaded the want of an amicable demand, and the failure of consideration ; and also propounded interrogatories to the plaintiffs, to be answered under oath. Charles Tiernan, one of the plaintiffs, (the other two partners being absent,) went before Judge Jackson, in the city of New-Orleans, and answered categorically, and in the negative, each interrogatory.

This case arises on an opposition to the tableau of distribution, filed by the syndics of the ceding debtor. On the 11th of June, 1837, B. Granet filed his schedule, and took the necessary oath in court, and prayed for the benefit of the insolvent laws. The district judge, (Hon. Thomas G. Morgan) being a creditor, recused himself, and’ refused to make the usual order.

This is an executory proceeding against ihe third possessor of a tract of land and slaves. The plaintiff alleges, that on the 13th of August, 1828, he sold the premises to one Timoleon Lesassier, who, in 1836, sold them to the defendant, and who, by notarial act, assumed and bound himself to pay the balance due on the original sale.

<p>The verdict c^the jury in two trials, on mere questions of fact, when not ^ r¡fg j pj[ ■ clearly erroneous, will not be disturbed.</p>

This is an action by Municipality No. One, to rescind the sale of a lot situated within its limits, to the defendant, on the ground that he has not complied with the terms of sale ; and that since the division of the city, the property reverts to the municipality in which it is situated. They pray for a rescission of the sale.

This is an action against the corporation of New-Orleans, to recover the sum of three thousand five hundred dollars, the alleged value of two rollers of an iron sugar mill, and the iron and brass frame work belonging thereto, which, the plaintiff states, the corporation took forcible and illegal possession of, and caused them to be sold without any legal authority. The corporation pleaded a general denial.

<p>APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This case comes up on an appeal from an order of seizure and sale, granted on a supplemental petition of the plaintiffs.</p> <p>The record shows, that Madame Fox, in January, 1837, purchased two lots of ground in faubourg Lacourse; No. 1, belonging to Madame Mader, for eight thousand five hundred dollars, and No. 2, belonging to P. E. Mader, the husband, for seven thousand five hundred dollars. The defendant assumed the payment of three notes given by P. E. Mader, for eight hundred and thirty-three dollars thirty-three and one-third cents each, bearing mortgage upon lot No. 2; and for the balance, she gave her two notes, bearing mortgage.</p> <p>On the 20th January, 1838, after the defendant had paid about five thousand dollars, the plaintiffs obtained an order of seizure and sale against the property, for two thousand eight hundred and seventeen dollars then due, with cost of three protests and copies of the act; and also for eight hundred and thirty-three dollars thirty-three and one-third cents, the amount of a note due the 19th February, 1838, and for four thousand and eighty-three dollars thirty-three and one-third cents, due on note of 22d February, 1836, assumed, but not paid at maturity: an extension of time was given, until the 7th February, 1838; and also for the other notes assumed, when they become due.</p> <p>An injunction was granted, stopping the sale under this seizure the 21st May following, on the alleged grounds, that no notice was given ; that it was an alias order, under which the plaintiffs were proceeding; that there was no authentic act to support the order; and that no legal notice had been published, nor any inventory and appraisement made of the property. This injunction was dissolved, on a rule taken by the present plaintiffs the 16th June following. The party appealed, but afterwards abandoned it.</p> <p>The plaintiffs in the seizure obtained a certificate from the clerk of this court, showing, that the appeal from the judgment dissolving the injunction had not been prosecuted, and on this showing took out a pluries order of seizure and sale, and were proceeding to seize and sell the mortgaged property, when they were stopped by a second injunction.</p> <p>On the 8th May, 1839, there was judgment, discharging a rule (aken by the plaintiffs in the seizure, to set aside and dissolve the injunction; but it set aside the pluries order of seizure, reserving lo the plaintiffs therein the right of applying for another pluries order of seizure and sale in due course of law.</p> <p>On the 6th June, 1839, the plaintiffs filed a supplemental petition, praying for an order of seizure and sale for a different amount, on other terms than the first, alleging that all the notes and payments were due, and that the property be sold for cash. The whole amount claimed was twelve thousand six hundred and fifty dollars, with interest and costs.</p> <p>The defendant made an unsuccessful effort to set aside this new order, by a rule taken on the adverse party, on the following grounds:</p> <p>1. That the supplemental petition altered the substance of the plaintiffs’ original demand.</p> <p>2. That no supplemental petition is admissible in the via executiva.</p> <p>3. The supplemental petition was filed, and the order granted thereon, while the injunction was still pending and in force.</p> <p>4. That the defences of payment and compensation made against the first writ and order, still exist against the second.</p> <p>5. That if the injunction was dissolved by the judgment, then it was necessary to give the defendant notice of the judgment before proceeding to the execution of the same. Code of Practice, 624</p> <p>6. The filing of the petition and granting the order were contrary to law, and not warranted by the evidence adduced.</p> <p>The rule taken to set aside the new order was discharged, and ah appeal prayed and granted to the defendant. A rule was also taken to set aside the appeal, which was dismissed.</p> <p>urged the affirmance of the judgment.</p> <p>insisted that, for the reasons and grounds set forth, the order of seizure should be set aside.</p> <p>2. The notes and sums claimed in the supplemental petition are not the original ones on which the mortgage rested, and consequently there was no authentic evidence to support the executory proceeding.</p>

<p>APPEAL FROM THE PARISH COURT OF NEW-ORLEANS.</p> <p>The plaintiffs instituted suit against Anderson, Tunstall & Co., as éndorsers of a note for one thousand four hundred and two dollars and ninety-one cents, and attached a quantity of cotton in the hands of ffm. Bogart, in New-Orleans.</p> <p>Anderson & Johnson, residing in Mississippi, intervened, claiming to be the owners of twenty-six bales of the cotton attached.</p> <p>The evidence showed, that Anderson & Johnson both, had running accounts with the defendants; and that the twenty-s'x bales of cotton now claimed, had been delivered to the defendants, and the amount or proceeds passed to the credit 1 1 | of the intervenors respectively, so as to vest the cotton absolutely in the defendants. There was judgment dismissing their petition of intervention, and they appealed.</p>

The plaintiffs having obtained a judgment against Anderson, Tunstall & Co., for one thousand four hundred and two dollars and ninety-one cents, with interest and costs, and attached a quantity of cotton in the hands of Wm. Bogart, as garnishee, took out execution, under which the sheriff seized and collected two hundred and sixty-five dollars from the garnishee.

The defendants, doing business as carpenters, are sued on their promissory note, signed “ Howell & Johnson,” and judgment is prayed against them in solido. The defendants pleaded a general denial, averring that they carried on the business of carpenters.

This suit commenced by attachment. The plaintiff sued the defendant as one of the makers of a promissory note, and attached the steamer Manchester, which he owned and commanded, to secure payment. Several creditors of the boat intervened, and set up various privileged claims for wages, supplies, and materials furnished, &c., most of which were allowed.

This is an action against the maker and endorser of a promissory note. There was judgment by default confirmed, and one of the defendants appealed. No evidence came up' in the record, except the note and protest.

This is an action against the maker of two promissory notes, both of which were over due more than five years at the commencement of suit. The defendant pleaded a discharge under 'the insolvent laws of Missouri, and prescription. On the trial, the defendant offered a judgment of discharge rendered by one of the courts in Missouri, which was rejected as evidence.

This is an action against the maker and endorser of a promissory note. The defendants admitted their signature, but denied that'^they were liable.

<p>APrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action against the defendant as endorser of a promissory note for twelve hundred dollars, payable on March 1, 1831. The note is dated at Plaquemine, October 22, 1830, signed by Thomas J. Cunningham, and made payable to the order of the defendant, and by him endorsed in blank. This suit was instituted February 27, 1836.</p> <p>The defendant admitted his endorsement; pleaded a general denial, and also averred, that he should not be required to answer, and be held liable in this case, as the plaintiffs have instituted suit against him in Kentucky, for the same cause of action, which suit he avers was pending at the time of filing the petition in this case.</p> <p>He further states, that the note sued on was sold to a broker, at a discount of 12 per cent, under an agreement that he should in no way be responsible. Some other matters are set up not material, and not relied on. He also avers, there is no proof of demand and notice of protest.</p> <p>There was no proof of the pendency of the suit in Ken-lucky. The evidence showed that the note was brought to N. Warfield, by the defendant, to be negotiated; that the latter put his own name on it, and also procured the name of Mrs. P. Cunningham. The broker testified that, “according to his best recollection, the discount on the note was over ten per cent.; that he sold it for the best [price] he could get for it.”</p> <p>The notary states, in his certificate, that he gave notice to the defendant, by a letter put in the Post-office in New-Orleans, of even date with the protest, addressed to him at Paris, in the state of Kentucky. There were several depositions taken and read, on the subject of the defendant’s residence. Some of the witnesses testified that they thought he resided in Millersburg, and others swore positively that his residence was in Paris (both towns in Bourbon county, Kentucky) at the time the note became due.</p> <p>There was judgment for the plaintiffs for the amount of the note, without interest. The defendant appealed.</p> <p>insisted that the judgment should allow interest, as the note was duly protested, and prayed that the judgment be amended in this respect.</p> <p>1. The inferior court erred in rendering judgment against the defendant, the transaction, being a sale of the note, and no liability rested upon defendant. See Romero et al. vs. Segura, 7 Louisiana Reports, 307.</p> <p>2. There is no proof in the cause of notice of the dishonor of the note; the notary’s certificate being insufficient. 2 Wheaton, 377; 2 Martin, 615.</p> <p>3. The proceedings should have been abated, by reason of the pending of another suit.</p> <p>4. Notice of protest should have been sent to Millersburg, Ky., the defendant’s place of residence, instead of Paris. It is not legal so as to bind him.</p>

This is an action against the defendants on two promissory notes signed by them as a firm, (Dakin & Dakin) doing business as architects, and which were given in part payment of the purchase of several squares of ground in the town of Bloomingdale, in the parish of Jefferson. There were exceptions filed to the petition, which were overruled, and a general denial pleaded.

This case commenced by an opposition and injunction against the defendant’s order of seizure and sale. The plaintiff and opponent alleges, that she was separated in property from her husband, and had judgment with privilege and mortgage on all his property, for the sum of two thousand and twenty-four dollars, and costs. That the defendant has obtained an order of seizure and sale against sundry slaves, and has advertised them for sale.

This is an action to recover damages for an alleged breach of a contract on the part of the defendant. It seems the parlies entered into a sort of special partnership, by which the plaintiff was to cultivate a piece of ground or garden of the defendant, the latter furnishing seeds, utensils, and a horse and cart; the proceeds to be divided.

This is an action for a balance due, and damages, to the plaintiffs, as plasterers, for work and labor done on the City Exchange, at the instance and under the employment of the defendants. They claim the sum of four thousand one hundred and twenty-seven dollars as the balance due, and damages, in consequence of being ordered to quit work before they had completed the job, as agreed on with the defendants.

The plaintiff attached the supposed interest of the defendants in the steam-boat Wm. L. Robeson, on the 28th April, 1838. Larkin F. Wood and others, intervened, and claimed to be the owners.

ArPEAL FROM THE COURT OF THE FOURTH DISTRICT, FOR THE PARISH OF TOINT COUPEE, THE JUDGE OF THE SECOND DISTRICT PRESIDING. This is an action against the endorser of a promissory note. Service of citation was made on the defendant personally, 21st May, 1839. On the opening of court, at the June term following the commencement of suit, the plaintiff took a judgment by default.

The plaintiffs allege that the defendants become the sureties of one Doorman, to whom was advanced the sum of four hundred dollars for work to be performed on the Poydras Market; that the suretyship of the defendants binds them for the performance of the work, or the repayment of the money; that Doorman has not complied with, the conditions on which the advance was made, and the defendants are liable for its repayment.

APPEAL PR0ÍI THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action of damages, in which the plaintiff claims from the defendants two thousand dollars damages occasioned by one Joseph Meyer, their lock-keeper, for assaulting, beating and imprisoning him, and taking his fishing boat and its load or cargo of oysters.

<p>Where a mortgage has been raised and cancelled under defective powers, by the attorney in fact, yet when it has been actually cancelled under them, and -a direct release by the mortgagees is subsequently made, purchasers will be fully protected by it.</p> <p>This court will not travel out of a bill of exceptions to notice objections which were not made in the court below. Had they been suggested there, they might have been removed.</p> <p>Where a curator of an interdicted person is shown to have been regularly appointed, and has acted and been recognized by the Probate Court as exercising the office, he will be presumed to have taken the necessary oath, although none is found in the record; and his authority and acts will be deemed valid.</p> <p>The oath to be taken by a curator, is an important formality not to be dispensed with ; but when all the other proceedings had for the alienation of minors’ or insane persons’ property have been conducted with the fidelity an oath was intended to secure, purchasers will be protected under them, even if no oath be found.</p> <p>Where a mortgage has been raised and can-celled under defective powers, by the attorney in fact, yet wheu it has been actually cancelled under them, and a direct release by the mortgagees is subsequently made; purchasers will' be fully protected by it.</p> <p>This court will abní^exceptions to notice objections which. were not made low^Had dier been suggested there they might have been removed.</p> <p>Where a curator of an interdicted person, is shown to have been regularly appointed, and. has acted, and been recognized by the Probate Court as exercising the office, he will be presumed to have taken the necessary oath, although none is found in the record ; and his authority and acts will be deemed valid.</p> <p>The oath to be taken by a curator, is an important formality not to be dispensed with ; but when all the other proceedings had for the alienation of minors’ or insane persons’ property have been conducted with the fidelity an oath was intended to secure, purchasers will be protected under them, even if no oath be found.</p>

This is in the nature of a hypothecary action. The plaintiff alleged that he had in vain demanded his debt from his vendee, (T. Lesassier) and that the defendant, who was in possession of the mortgaged property, had refused to pay it; he prayed for, and obtained an order of seizure and sale against the defendant, as third possessor. The latter made opposition, and obtained an injunction to stay the proceedings, on various grounds.

1. It seems to be admitted there was not sufficient time or notice given by the sheriff before seizure, and consequently the injunction should be sustained for irregularity and illegality of the proceedings. 2. There is but one legal and proper way of selling property under the writ of seizure, and the sheriff was pursuing a different and unlawful course in this case. Such proceeding was properly enjoined. 3.

This is the case of an opposition and injunction to stay executory proceedings. The defendant, Gurlie, was proceeding against certain lots on his mortgage, executed by Emile Barthe. The latter, on purchasing this property, acknowledged the usual mortgage in favor of his vendor, and assumed to pay two of his notes, and gave his own for the balance. He afterwards sold the same lots to Suppo de Valetti.

<p>The case was submitted on the merits ; and the record being incomplete for want of all the evidence, and there being no assignment of error or bill of exceptions, the appeal was dismissed.</p>

<p>This case comes up on an application for a mandamus to compel the judge of the Commercial Court to grant an appeal from his decision, refusing a writ of, habeas corpus.</p> <p>The petitioner, John N. Stiles, free man of color, having been arrested and committed to prison on a warrant from the Honorable Joshua Baldwin, Recorder of the Second Municipality of the city of New-Orleans, for having failed to leave the State of Louisiana, after having been notified to depart and forever to remain out of the same, in contravention of “an act [of the legislature] to prevent free persons of color from entering into this state, and for other purposes; approved March 16, 1830; applied by counsel to the judge of the Commercial Court of New-Orleans, for a writ of habeas corpus, in order to be discharged from confinement.</p> <p>His honor, Judge Watts, made the following order on the petition.</p> <p>“Being of opinion that the whole subject of the colored population of the United States is, by the constitution of the United States, referred to the legislation of each separate state; and being also of opinion that the law under which the party is arrested, is therefore not opposed to the.constitution of the United States, and is essentially necessary to the police and self-protection of the slave-holding states:</p> <p>“The application for a writ of habeas corpus is, therefore, refused.”</p> <p>An appeal was prayed to the Supreme Court from this decision, which was also refused; the judge of the Commercial Court not considering it an appealable case.</p> <p>The petitioner then applied to this court for a writ of mandamus, commanding the judge a quo to allow the appeal.</p> <p>1. The writ should be granted ; the decision of the judge below being one from which an appeal will lie. The proceeding by habeas corpus in this state, is under the provisions of the Code of Practice, articles 786, 827. It is a civil proceeding, cognizable by courts of exclusively civil jurisdiction. The proceeding by habeas corpus has always been regarded in England as a civil proceeding. See Bacon’s Jib., title Habeas Corpus ad subjiciendum; and Bushell’s case in Vaughan’s Reports.</p> <p>2. The case of Laverty vs. Duplessis, 3 Martin, 42, is no authority against the petitioner. In that case it was determined, jirst, that the Supreme Court had no appellate jurisdiction ; and, second, that it had no general superintending jurisdiction over the inferior courts. The question whether the proceeding by writ of habeas corpus was of a civil or criminal character, was not raised in that case. There is no decision in this state, or elsewhere, supporting the idea that the proceeding by habeas corpus is a criminal proceeding.</p> <p>3. An appeal will lie from the decision of the judge below, though there be no allegation that the matter in dispute exceeds three hundred dollars, when, from the very nature of the case, the question must involve the most important interests, and the most valuable rights of the parties; the provision of the second section of the fourth article of the constitution being intended to limit the jurisdiction of the court to cases in which, when the matter in dispute is estimated in money, it shall exceed three hundred dollars.</p>

This is an action against Frederick Frey & Co., as endorsers of a promissory note, made to their order, by Edward Salzman, also a member of said firm. The endorsement is in blank, and the plaintiff sues as the bona fide holder.

This is an action on a draft by the drawer, against the drawee, dated Liverpool, 23d April, 1833, payable three months after date, to the order of the drawer. It was accepted by the defendant. The drawer instituted this suit the 22d November, 1838. The defendant pleaded his peremptory exception, founded in law, that the plaintiff’s claim was prescribed. .

This is an action for a diminution and refunding of part of the price of a tract of land, on account of a diminution of quantity.

<p>An offer to deliver a box of goods, after suit is commenced, without tendering the costs, does not possess the requisites of a legal tender.</p> <p>The plea of the general issue, and an averment that a certain case of goods, described in the petition, was tendered and delivered, does not admit,their value as alleged by the plaintiff, and dispense with proof of it.</p> <p>An offer to deliver a box of p;oodSj after suit is commenced, without tendering the costs, does not possess the requisites of a legal tender.</p> <p>The plea of the general issue and an averment, that a certain case of goods described in the petition, was tendered and delivered, does not admit the value of the goods as alleged, by the plaintiff, and dispense with proof of the value affixed by him.</p>

This suit commenced by attachment. The plaintiffs allege that they purchased, and shipped, by agreement, a large quantity of cotton to the defendants: one-third to their house in Liverpool, trading under the firm of Keill & Courant; one-third to the house of F. Courant & Co., in Havre; and one-third on their own account; and drew bills on said shipment, which the defendants were to accept and pay; but which were refused acceptance, and protested for nonpayment.

This is an action against the maker of a promissory note, payable to the order of A. Lesseps, and by him endorsed in blank. The plaintiff endorsed it to the Union Bank for discount, and at maturity took it up.

APPEAL PROM THE PARISIlJcOURT POR THE PARISH AND CITY OP NEW-ORLEANS. The plaintiffs instituted an action of nullity, and obtained a judgment annulling the former judgment which had been rendered against them, concerning a house and lot. The present defendants took an appeal. The citations were issued to the parish of Orleans, instead of the parish of Plaquemine, where the appellees resided, and were never served.

This is a redhibitory action for the rescission of the sale and return of the price of a slave, purchased by the plaintiff at the executors’ sale of the late Guillaume Despierris’s succession. The defendants pleaded a general denial, and expressly averred that the slave was perfectly sound at the time of the sale- They pray that the plaintiff’s demand be rejected, and that they have judgment for the balance of the price unpaid.

ArrEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action against the endorser of a promissory note. The defendant pleaded a general denial, and want of amicable demand. The plaintiff proved his demand, and had judgment. Nothing was shown or proved in the defence. The defendant appealed.

<p>The vendor cannot be aware that the property he sells is purchased for speculation, and with the view to immediate re-sale ; and the vendee will not be allowed to set up as error in the motive, the fact that a tacit mortgage existed on the property, which was fraudulently concealed from him, in avoidance or rescission of the sale.</p> <p>Where the tutor observes all the forms required by the act of 1830, authorizing a special mortgage to be substituted in lieu of the general one resulting from the tutorship, it frees the other property from all incum- ■ brance, and a purchaser cannot set it up in avoidance of the sale.</p> <p>The vendor cannot be aware that the property he sells is purchased for speculation, and with the view to immediate re-sale ; and the vendee will not be allowed to set up as error in the motive, the fact that a tacit mortgage existed on the property, which was fraudulently concealed from him, in avoidance or rescission of the sale.</p> <p>Where the tutor observes all the forms required by the act of 1830, authorizing a special mortgage to be substituted in lieu of the general one resulting from the tutorship, it frees the other property from all incumbrance, and a purchaser cannot set it up in avoidance of the sale.</p>

<p>APPEAL' PROM THE COMMERCIAL COURT OE NEW-ORLEANS.</p> <p>This is an action against the payee and first endorser of a promissory note. He admits his signature, and denies every other allegation, but made no defence. The case was submitted to a jury who returned a verdict against the defendant, from which he took a suspensive appeal.</p>

This is an action against the payee and endorser of a promissory .note. The note was made payable at the Mechanics’ and Traders’ Bank in .New-Orleans, and lodged in the Canal Bank for collection.

The plaintiffs allege, they are the owners of the brig Hokomok, and that on the 8th February, 1836, in the Mississippi river, the defendants, in consequence of their negligent and unskillful conduct, in the management of their respective vessels, which were both adrift in the river, they broughtthem in contact and collision of the brig, which was lying safely moored at the levee port, and occasioned loss and damage in her hull and rigging, ¿mounting to six hundred dollars,…

<p>The general issue dispenses with proof of the signature of the defendant, who is sued alone as maker of a note, but not that of the payee and first endorser.</p> <p>Where the judgment of the inferior court states, that “the plaintiff proved all his allegations,” and there is no proof of the signature of the first endorser in the record, the case will be remanded for another trial.</p> <p>The general issue dispenses with proof of the signature of the defendant who is sued alone as maker of a note but not 'that .of the payee and first endorser.</p> <p>Where the judgment of the inferior court states that “ the plaintiff proved all his allegations,” and there is no proof of the signature of the first endorser in the record, the case will be remanded for another trial.</p>

This is an action against the defendant on his two promissory notes, given for the price of fifty-nine coils of bale rope. The notes were payable to the order of Peter Laidlaw, and by him endorsed in blank. He acted for the plaintiffs and had the bale rope sequestered. The defendant pleaded a general denial.

<p>APPEAL FROM 'THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action instituted on the following agreement, and also on the four promissory notes mentioned in it as having been given up.</p> <p>“Nevj-Orleans, J\Iay 23, 1837.</p> <p>“ In consideration that Joseph L. Moore & Co. have this day given up to me my four notes, drawn by me in their favor, (amounting, in all, to six thousand nine hundred and twenty-eight dollars twenty-six cents,) for the security of the payment of which, they hold a note drawn by Chouteau & Payne, payable to and endorsed by me, dated May 18, 1836, at six months, for seven thousand eight hundred and thirty-two dollars, with interest at the rate of eight per cent, per annum from maturity; I agree to pay them one-half the amount of said notes given up, on the first day of December next, and the other half of said amount on the first day of April next, with interest at the rate of eight per cent, per annum after maturity; provided said note of Chouteau fy Payne be not collected. A. G. COCHRAN.”</p> <p>The plaintiffs acknowledge this agreement, and say: “We agree not to call on said Cochran, as endorser of said note, provided he pay to us, on the first day of December next, the one-half of six thousand nine hundred and twenty-eight dollars, and the other half of said amount on the first day of April next, with interest, &c., according to previous agreement; on payment of which, said note is to be given up to said Cochran.”</p> <p>The defendant admitted his signature to the notes, but averred that the plaintiffs delivered them up to him for the note of Chouteau & Payne, which they have never made any effort to collect. He prays to be dismissed with his costs.</p> <p>The evidence showed that Chouteau & Payne were in good credit and solvent, at the maturity of their note, and when it came into the possession of the plaintiffs; but it is not shown that they made any effort to collect it. It remained unpaid in December, 1837, when this suit was commenced.</p> <p>The district judge was of opinion that the collection of this note was not a suspensive condition, under the agreement of May 23, 1837, and that the defendant had no right to require a discussion of Chouteau & Payne’s property, being already bound in solido with them as payee and endorser of their note. But as the present suit was instituted before the 1st of April, 1838, it was premature as to one-half of the demand. There was judgment for one-half of the debt, which became due the 1st December, 1837, with interest; and the defendant appealed.</p>

This is an action by the payees of a bill of exchange, against the drawer. The defendant, at Columbia, in Arkansas, on the 5th July, 1837, drew his bill for one thousand seven hundred and fifty-one dollars, in favor of the plaintiffs, on N. & E. Ford & Co., of New-Orleans, which was protested at maturity for non-payment.

<p>In an action against the maker of a note, payable at a particular place, it is necessary to show presentment of the note, and demand at the place of payment, to entitle the holder to recover.</p> <p>The Supreme Court of the United States, in the case of Wallace vs. M‘Connell, 13 Peters, 136, held that it is not necessary to allege and prove a demand of payment, in an action against the maker of a note,or acceptor of a bill; but that it is a matter of defence, if the defendant can show he was ready at the place of payment, and offered to pay, to be pleaded and proved on his part. This court adheres to its former and contrary decision in the case of Mellen vs. Croghan, 3 Martin, JV. S. 423.</p> <p>In an action against the maker of a note, payable at a particular place, it is necessary to show presentment of the note, and demand at the place of payment, to entitle the holder to recover.</p> <p>The Supreme Court of the United States, in the case of Wallace vs. M‘Connell, 13 Peters, 136, held that it is not necessary to allege and prove a demand of payment, in an action against the maker of a note,or acceptor of a bill; but that it is a matter of defence, if the defendant can show he was ready at the place of payment, and offered to pay, to be pleaded and proved on his part. This court adheres to its former and contrary decision in the case of Mellen vs. Croghan, 3 Martin, N. S. 423.</p>

This is an action against the executors of the late Theodore Nicolet, for the balance due of the price of five hundred shares of Gas Light Bank stock, sold by J. A. Merle & Co., as agents of the plaintiff, It is shown that on the 15th December, 1836, the plaintiff, through his said agent, sold to Nicolet & Co. said bank stock, and took their notes, payable at sixty and ninety days, for the price.

This is an action of damages by the plaintiff as owner of the slave Pierre, for the amount of his hire and for his illegal detention by the defendants, on board their steam tow-boat Tiger.

This is an action against the payee and first endorser of a promissory note, who is alleged to be absent; and an attorney was appointed to defendant, and the firm of J. A. Merle & Co. cited as garnishees. The plaintiff proceeded to judgment against the defendant.

The plaintiffs show that they are bankers in London, and the firm of C. D. Tolmé & Co., bankers in Havana, are largely indebted to them, and had placed drafts in the hands of J. A. Merle & Co., of New-Orleans, with instructions to collect the same and remit the proceeds to them in London ; and that by these means they became the owners of said drafts and the proceeds thereof as soon as they were thus appropriated and placed for collection on their account.

This is an action against the maker and endorsers of a note. There was judgment by default made final against all the parties, without any defence. Prats & Son, the ■endorsers, took a suspensive appeal.

This is an action on an account for work and labor done and materials furnished, in the repair of a floating wharf.

This is an action against the defendant on his promissory note, purporting to be signed by him, and made payable to the order of the plaintiff, for the sum of six thousand two hundred dollars. The note is dated at New-Orleans, May 2d, 1838. The defendant pleaded a general denial, and expressly averred that his signature was a forgery, to which he made affidavit. Upon these pleadings and issues, the cause was submitted to a jury.

<p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the maker of the following promissory note:</p> <p>“$1248 50 Natchitoches, July 15, 1838.</p> <p>“ Twelve months after date, I promise to pay to the order of Michael Colgan, the sum of one thousand two hundred and forty-eight dollars and fifty cents, for value received, negotiable and payable at the Branch of the City Bank of New-Orleans, at Natchitoches.”</p> <p>« HENRY WINDLE.”</p> <p> Endorsed. </p> <p>“ M. COLGAN.” Pay W. GREENEWALT, or order.’’ “ HART, LABAT & Co.”</p> <p>“W. GREENEWALT.’”</p> <p>The plaintiffs allege that said note was by them endorsed over to W. Greenewalt, for the purpose of collection, and placed by him in the Branch of the City Bank at Natchitoches for- that purpose, and was protested for non-payment; he prays that the defendant be held to bail and condemned to pay the amount.</p> <p>The defendant pleaded a general denial. The plaintiffs offered the protest and note in evidence, and proved the signature of the payee and first endorser, and had judgment against the defendant, and he appealed.</p> <p>prayed affirmance of the judgment with damages ; and relied upon the case of Hill etal. vs. Holmes <§• Smith, 12 Louisiana Reports, 97.</p> <p>1. That there should be judgment of non-suit for the defendant, because thfere was no evidence of the endorsement ofW. Greenewalt.</p> <p>2. There was a special endorsement to Greenewalt, which made it necessary to prove his signature, which was not done.</p>

This case comes up on an injunction to stay executory proceedings. The defendants, D. F. Burthe and L. S. Hilligsberg, sold ten lots of ground in New-Orleans, among others, to R. Hagan, the 5th of March, 1836, the price payable by instalments, for which notes were given, and the usual mortgage retained, with the clause de non alienando, by which the purchaser bound himself neither to alienate or encumber said property. Hagan sold these lots to the present plaintiff.

This is an opposition and injunction by a third possessor to stay an order of seizure and sale, which the original vendor had obtained against the mortgaged property for the payment of the original price.

This is an action against the drawee of a bill of exchange, drawn at Cincinnati, the 9th of August, 1838, by Channing Richards, in favor of and endorsed by Wolcott Richards, for four thousand dollars, payable three months after date. It was addressed to the defendant in New-York, and never accepted, but protested at maturity for non-payment.

<p>APPEAL PROM THE CITY COURT OP NEW-ORLEANS.</p> <p>This is an action by the husband and wife to recover from the defendant a promissory note for six hundred dollars, taken for part of the price of a slave, the dotal property of the wife, and which her husband had put into the defendant’s hands to get discounted.</p> <p>The defendant pleaded a general denial, except such allegations as were expressly admitted ; and averred that Defau, the husband, had put the note in question into his hands for discount, and authorized him to discount it at a loss of two hundred'and sixteen dollars; that the plaintiff, Defau, is the owner of said note, and owes him two hundred and seventy dollars, leaving a small balance, which he is and always has been ready to pay. The defendant pleads the sum of two hundred and seventy dollars in compensation.</p> <p>The evidence showed that the note was the exclusive property of the plaintiff’s wife, and had been by him put into the defendant’s hands to get discounted. The judge presiding rejected parole evidence offered by the defendant to prove that the plaintiff agreed to lose three per cent, per month on the note, and gave judgment for the plaintiffs, that they recover of the defendant the amount of said note, or the note itself; and he appealed.</p>

This is an action against the makers and the endorsers of a promissory note, drawn to the order of and endorsed by the firm of Whittemore, Blair & Co. The defendants, Whittemore & Blair, severed in their answers, and pleaded a general denial; and Whittemore set up a special defence, averring that the endorsement of his late firm was made after itá dissolution, without his consent, and is not binding; that plaintiff has released A. B. Bein, one of the original parties as…

<p>An action of damages for malicious prosecution and false imprisonment, should not be maintained without clear proof of malice and the absence of probable cause of guilt.</p> <p>Whether the defendant disclosed the grounds of his belief in his affidavit, charging the plaintiff with a criminal offence, is immaterial. In an action of damages for malicious prosecution, &c., he will be permitted to show his motives, and the absence of malice.</p> <p>An action of damages for malicious prosecution and false imprisonment, should not be maintained without clear proof of malice and the absence of probable cause of guilt.</p> <p>Whether the defendant disclosed the grounds of his belief in his affidavit, charging the plaintiff with a criminal offence, is immaterial. In an action of damages for malicious prosecution, &c., he will be permitted to show his motives, and the absence of malice.</p>

This is an action against the makers of a note for one thousand two hundred and fifty dollars. The note was given in consideration of the defendants’ subscribing for one quarter of a share of a tract of land, to be divided and laid out into town lots.

This is a case of mandamus. Silas Lillard, a creditor, having taken a rule on the syndic of the creditors of Tarbe & Nash, to produce his bank book, and in default pay twenty per cent, damages on the money of the estate surrendered and not deposited, and be dismissed from office. The judge refused to make the rule absolute on the expiration of the time, but allowed three days longer to produce the book, on account of sickness.

The plaintiff alleges, that according to an agreement entered into between him and the defendants, James Priestly and Malcolm M‘Nabb, he sold and delivered to them at his plantation, in the parish of Assumption, nineteen thousand nine hundred and ninety-nine gallons of mdlasses, at twenty-two and a half cents per gallon, amounting to four thousand four hundred and ninety-nine dollars ninety-seven cents, for which the defendant, M‘Nabb, drew a draft on his co-partner,…

This is an action by the holder against the maker and endorser of thirteen promissory notes, given for immoveable property with mortgage. There was judgment in solido, with the right of enforcing the mortgage on the property, and the defendant, Adams, alone appealed.

This case commenced by the executory proceeding. The defendant, Madame Constance Rochon Duplantier, having sold to the plaintiff a plantation, slaves, and three hundred shares of Union Bank stock, took his seven promissory notes, payable in instalments of thirteen thousand two hundred dollars each, for the greater part of the price, secured by endorsement and mortgage on the premises, took out an order of seizure and sale, when the first note became due and was protested,…

<p>Where an agent is employed to buy a quantity of fish, in barrels, with discretionary powers to do the best he can in executing the order, and he procures fish which have passed inspection, but in consequence of the barrels not retaining the brine,, the greater part of the fish are spoiled on their arrival, and sold at great loss : Meld, that this is not such a degree of negligence on the part of the agent, as will authorize a recovery in damages.</p> <p>is empioyedTo ^ “^ban-et^ wilh discretionary powers to do the best he can ordTr^amf 'hi p™cures fish which have passed inspection, q||nce' of°nthe barrels not re-taming the brine the greater part spoiled on their |jri™r1éatndiMs<í Held, that this is such a de« gree of negiifnlTagenfa""! wil1 authorize a recovery m damages.</p>

<p>AMEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action on a draft or order accepted by the defendant, as follows :</p> <p>“ Mr. H. G. Heartt,”</p> <p>“Sir: Please to pay to ffm. H. Ker, the above sum of three hundred and eighty-three dollars and five cents, and charge the same to me, on account of the building I am now constructing for you.</p> <p>CHARLES FERDON.”</p> <p>“I will pay to the order of Wm. H. Ker, the above sum of three hundred and eighty-three dollars and five cents, out of the second payment I have to pay Charles Ferdon, on my’ building on Constance-street, as per contract before W. Y. Lewis.. New-Orleans, 23d August, 1839.</p> <p>H. Gl. HEARTT.”</p> <p>The defendant excepted, alleging the suit was premature ; that the second payment was not yet due, on which the payment of the order depended as a precedent condition. This exception was overruled.</p> <p>In answer to the merits, the defendant denied that the terms and conditions of his acceptance were fulfilled, or the work was done on which the second payment depended, and further, that the plank and lumber charged in W. H. Ker’s bill, for which the order was drawn, was not in fact furnished, as stated, by him, but by another person.</p> <p>The contract showed that the second payment or instalment was to be paid as the building advanced and when the work arrived at a certain stage.</p> <p>The evidence showed that the building was progressing when payment of this order was demanded ; but the precise state of forwardness cannot be ascertained from the statement of the witnesses. Ker assigned this order or draft to the plaintiff.</p> <p>There was judgment in his favor, and the defendant appealed.</p>

This is an action first instituted against the maker and endorser of a promissory note. They both expressly denied that they signed and endorsed said note, and charged that their names were forged or counterfeited, and prayed to be dismissed.

This is a petitory action for a lot of ground which the plaintiff alleges he purchased from the defendant, by public act, the 17th day of May, 1830, but that she continues in possession and refuses to deliver it up. He prays that he be decreed to be the true owner of said lot, and that possession be delivered to him, together with thirty dollars per month for the time she has withheld it from him. The defendant pleaded a general denial.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT, JUDGE BUCHANAN PRESIDING.</p> <p>This is an action against the maker of a promissory note, secured by mortgage.</p> <p>The defendant admitted his signature, but averred that the note was extinguished by payment made by H. G-. Schmidt, who had assumed the payment thereof; that the mortgage given by Schmidt on assuming the payment, was cancelled and extinguished, or, if not extinguished, the right was so impaired by stamping the note as paid, as to prevent any recourse thereon by the executory proceeding. He avers he is discharged from all liability, and prays to be dismissed.</p> <p>The evidence showed that the note in question was given, with another of the same tenor and amount, for the purchase of property; but the first was payable the 27 th February, 1837, and the other, 27th February, 1838. H. G. Schmidt afterwards purchased the same property, and assumed the payment of these notes, with mortgage to secure payment.</p> <p>The two notes were discounted in bank, and by an error of the clerk, both were placed on the books as due on the same day, and given to the clerk who receives payment of notes discounted, or deposited in bank for collection.</p> <p>Schmidt came, on the 27th February, 1837, to pay the note of Slidell, which became due on that day, and the clerk gave him the note of February, 1838; it was stamped as paid, on its face, and on the back was endorsed “ received payment, of H. G. Schmidt,” and signed by the- note clerk. On the close of the day, the other note of Slidell being due, and remaining unpaid, and he having a larger amount to his credit in bank, he was debited with the amount of the note, and was credited with the amount of the other one paid by Schmidt. Some days afterwards, Slidell was notified that his account was overdrawn, which, on examination, was found to proceed from charging him with the first note which was due. He stated that Schmidt was bound to pay those notes, and had the entry in the bank book corrected crediting his account, and debiting the account of the person who had got the note discounted, with its amount. Schmidt being informed of the mistake, applied to the note clerk who gave him the discounted note, and received back the note not then due, but which had been stamped and receipted as paid, through error, and which is the, subject of the present suit. Before this note became due, Schmidt was insolvent, and made a cessio bonorum.</p> <p>There was a bill of exceptions taken by the defendant’s counsel, to the opinion of the judge, admitting parole evidence to show that the note had been paid through error, and also to show generally the circumstances under which it had been stamped and receipted as paid.</p> <p>Judgment was given for the amount of the note against the defendant; but the plaintiff was required to give security to warrant the defendant against any loss or delay, in the prosecution of his claim against Schmidt, occasioned by the erroneous stamping and receipting said note. The defendant appealed.</p>

This is an action of damages against the defendant, for building on the wall of the plaintiff, and_ breaking and injuring it so as to render his house untenantable; and for stopping up his windows, and obstructing his chimneys, and causing them to smolce; also in constructing his own windows, and leaving openings in the common wall between them, from which filth and dirty water is constantly thrown upon petitioner’s roof, and into his yard.

<p>The law is well settled, that notice of the non-payment or dishonor of a bill given to the drawer by the acceptor, or any of the parties to it, is sufficient, and enures to the benefit of all the other parties.</p> <p>Letters written on the day the bills become due, by the acceptor, and addressed to the drawer, that they must go back protested, is sufficient notice to him.</p> <p>So, if a note or bill is presented in the forenoon of the day it becomes due, and payment is refused, notice given in the afternoon is good.</p> <p>Part payment, or a promise to pay a bill or note, furnish grounds to infer presentment, and notice of the dishonor or non-payment.</p> <p>So, where the defendant, as drawer of bills, after being advised by letter from the acceptor of their dishonor, acknowledged the debt, and promised to pay the holder of the bills by instalments, on short time it must be viewed either as an admission that the notices were good or a waiver of them.</p> <p>The law is well settled that notice of the nonpayment or dishonor of a bill given to the drawer by the acceptor, or any of the parties to it, is sufficient, and enurestothe benefit of all the other parties.</p> <p>Letters -written on the day the bills become due, by the acceptor, and addressed to the drawer,that they must go back protested, is sufficient notice to him.</p> <p>So, if a note or bill is presented in the forenoon of the day it becomes due, and payment is refused, notice given in the afternoon is good.</p> <p>Part payment, or a promise to pay a bill or note, furnish grounds to infer presentment, and notice of the dishonor or non-payment.</p> <p>So, where the defendant, as drawer of bills, after being advised by letter from the accept- or, of their dishonor, acknowledged the debt, and promised to pay the holder of the bills by instalments on short time, it must he viewed either as an admission that the notices were good,or a waiver of them.</p>

<p>APPEAL PROM THE COURT OP PROBATES, POR THE PARISH AND CITÍ OP NEW-ORLEANS.</p> <p>This is an opposition of John Slidell to the tableau of distribution filed by the testamentary executors of I. LM‘Coy, deceased, demanding to be placed on said tableau as a privileged and mortgage creditor for the amount, of two promissory notes of six thousand six hundred and sixty-seven dollars each, and five hundred dollars for professional services rendered. The notes were signed by M£Coy, .payable to the order of E. Salzman, and by him endorsed. The evidence shows that they were given for part of C. F. Zimpel’s interest in a speculation or purchase of several small tracts of land on the coast above New-Orleans, on which the towns of Dublin and Germantown were laid] out. They were placed in the hands of Slidell, in pledge and as security against his endorsements for Zimpel, by his agent.</p> <p>The circumstances under which M£Coy gave these notes, and the grounds on which payment is resisted are so fully set forth in the opinion of this court, that it is needless to recapitulate them.</p> <p>The judge of probates allowed the claim and ordered the tableau to be amended, by placing the plaintiff and opponent thereon as an ordinary creditor, for the amount of his claim. The heirs of M‘Coy appealed.</p> <p>insisted, that there was no failure of consideration, even as between the original parties, but if (here was, Slidell was not privy to the contract. He was the bona'fide holder of the notes, negotiable in their form, and binding on the maker.</p> <p>contended that Slidell was not the legal pledgee of the notes, and could not recover. He attacked the case of King vs. Gayoso, 8 Martin, JV. S., 370, as not law, and urged the court to revise and overturn that case.</p> <p>2. He insisted that Zimpel had the entire control of the speculation and so mismanaged its affairs as to exonerate M£Coy, who had confided in him.</p>

AFrEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS. This is an action against the maker of three promissory notes, payable to the' order of the plaintiffs. The defendant resides in Texas, and an attachment was obtained against the cargo of the schooner Oregon, about to sail for that country, consisting of four hundred and ninety-nine barrels of lime, eighteen boxes marked for Houston, (Texas,) and two trunks, as the property of Sanderson.

This is an action against the maker of a note payable to his own order, nine months after date, with six per cent, from its date, until paid. The defendant pleaded a general denial. There was judgment for the amount of the note, with eight per cent interest, from maturity until paid. The defendant appealed. asked that the judgment be amended so as to give but six, instead of eight per cent, interest; and that it be affirmed, as to the other points, with ten per cent, damages.

In this case, Andrew S. Barker became the purchaser of a lot of ground sold under execution, in the suit of James Erwin vs. John Wilcox, and after paying Erwin’s debt, there remained a balance of two thousand and sixty-seven dollars and thirteen cents, which was claimed by trustees of certain creditors of Wilcox, under a conventional mortgage, to come in next after that under which the property was sold.

APPEAL EE0M THE OOUET OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS. This is in the nature of an action on an appeal bond against the surety in the Court of Probates. The plaintiffs having obtained a judgment in the Probate.Court against the late N. Cox, as administrator of the estate of the late Samuel Elkins, deceased, a suspensive appeal was taken to the Supreme Court, with Jeremiah Berry as surety; which judgment was affirmed, with damages.

<p>Where an engineer of a cotton-press was employed by the year at a fixed salary, and was discharged before the end of the year, without any other cause than that his services were no longer required by the company, it was held that he is entitled to recover his salary for the whole term.</p> <p>The engineer was entitled to receive his full salary as soon as he was discharged; and no condition could be afterwards imposed by his employer, to return and perform his service for the remainder of the year.</p> <p>Where an engineer of a Cotton Press was employed by the year, at a fixed salary, and was discharged before the end of the year, without any other cause than that his services were no longer required by the company, it was held that he is entitled to recover his salary for the whole term.</p> <p>The engineer was entitled to recover his full salary as soon as he was discharged ;and no condition could be afterwards imposed by his employer, to return andperform his service for the remainder of the } ear.</p>

This is an action against the defendant, captain Clark, of the steamer Brilliant, as drawee and acceptor of a draft. There was a confession of judgment, with privilege on the steam-boat for the amount of the draft. Manning and Wilson intervened and made opposition, and prayed to have their claims against said steam-boat allowed, by privilege and preference over other creditors, being, for supplies furnished.

<p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLBANS.</p> <p>This is an action by George P. Shipman and Thomas N. Ayres, residing in New-York* on the following promissory note :</p> <p>“ New-Orlecms, 13th November, 1838.</p> <p>“Thirteen months after date, we severally and jointly promise to pay to the order of H. Haynes, nine hundred and seventy-seven dollars and ninety-six cents, for value received.”</p> <p>é. HAYNES,</p> <p>JACOB SHAUB.”</p> <p>Endorsed. “HENRY HAYNES.”</p> <p>The plaintiffs allege, that Shaub is absent from the state, and pray an attachment against him, and for judgment, in solido, against all the defendants.</p> <p>The defendants admitted their signatures; and denied that the plaintiffs were owners of the note; that it was the property of William B. Ayres, and the proceeds to go to his benefit; they also aver that he is indebted to one of them, in the sum of three thousand seven hundred dollars, for moneys advanced and services rendered, which they set up in compensation. They also propounded interrogatories, requiring the plaintiffs to answer separately, in substance, that Wm. B,. Ayres was the true owner of the note, and that the proceeds, when collected, were to be remitted to him.</p> <p>The plaintiffs’ counsel declined having these interrogatories answered, as they resided in New York, and it would have a tendency to delay the trial. Their counsel also consented that the interrogatories might be taken for confessed.</p> <p>There was judgment against the makers of the note, and and one of non-suit in favor of the endorser.</p> <p>Execution issued on this judgment, and six hundred dollars was made out of the sale of 40 shares of Firemen’s Insurance stock standing in the name of Shaub, the absent defendant.</p> <p>In the mean time, Stewart H&ynes, one of the defendants in the execution, obtained a judgment in the Parish Court for three thousand six hundred and eighty dollars and eleven cents against Wm. B. Ayres; and he took a rule on the plaintiffs and sheriff to show cause why the money made on the exection, should not be paid over to him, in part satisfaction of this judgment; and adduced as evidence, that the money belonged to said Ayres, the confession of defendants' interrogatories by the plaintiffs in this suit, through their</p> <p>attorney. The plaintiffs’ attorney offered his own testimony to show that the admission was made for the sole purpose of preventing delay, and to facilitate the trial of the suit, and was not binding in this case.</p> <p>The judge presiding was of opinion it was competent for the attorney to make the confession, or consent, on behalf of the plaintiffs, that the interrogatories be taken for granted, and having been made, it could not be recalled or retracted. He gave judgment on the rule ordering the money to be paid over to S. Haynes. The plaintiffs appealed.</p>

ArPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT. This is an action against Charles Byrne, and three others, for auction commissions due to the late Isaac L. M'Coy. The petition charges that the defendants are indebted in the sum of one thousand nine hundred and six dollars for the amount of commission and charges on the sale of thirty-one lots amounting to ninety-five thousand and three hundred dollárs.

This is an action on a due bill, payable to J. Shill & Co., and by them transferred to the plaintiff. Judgment by default was made final without any appearance of the defendants ; and from which they appealed.

This is an action against the Union Bank of Louisiana, to recover the amount of a promissory note, which they failed to have protested in due time, and notice thereof given to the endorsers, by which they were released. The defendants pleaded a general denial. The note is for one thousand dollars, signed by D. S. Parrish, payable to the order of J. P. Overton, and by him endorsed in blank.

This is an action to rescind the sale of a house and lot, made by the plaintiff to the defendant, Henrietta Shallus, widow of W. C. Clark. He alleges, that she has abandoned the premises, and gone to Texas, leaving some furniture in the house, and failed to pay her notes, given for the price of the property.

This is an action against the endorser of a promissory note. The defendant pleaded a general denial.

<p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the maker and endorsers of a promissory note, secured by mortgage.</p> <p>Gove, one of the endorsers, denied every allegation, and set up in defence, that on the 1st of August, 1837, the Merchants’ Bank, (plaintiffs,) which is not authorized, by its charter, to take more than seven per cent, interest, per annum, discounted two notes for him, (defendant,) bearing each ten per cent, interest per annum, and which were made payable to a third person as payee and endorser, at the instance of the plaintiff, to evade the law and the charter; and that for the loan of one thousand and forty dollars, they required, and did receive in payment, at the end of one year, one thousand one hundred and forty-four dollars; and on the second note of one thousand and forty dollars, at the end of two years, they received one thousand two hundred and forty-eight dollars; making in all, an excess of three hundred and twelve dollars over seven per cent., the highest rate of interest authorized by the charter of said bank.</p> <p>The defendant avers, that this sum was usuriously and illegally demanded and received from him by the plaintiffs, and which he pleads as a demand in compensation and reconvention of this action.</p> <p>There was judgment against all the other defendants, by default.</p> <p>The evidence showed that the note sued on, is the property of the Merchants’ Bank; and that the two notes mentioned in the answer and plea of reconvention, were given to the United States Bank of Pennsylvania, in payment of exchange purchased by the defendant, and protested for nonpayment, while held by the United States Bank; that the Merchants’ Bank only acted as the agent of the former, and has never purchased exchange, at least up to the time of giving the note now sued on.</p> <p>There was judgment against the defendant, for the balance due on the note in suit, and he appealed.</p> <p>There was an affidavit filed for a new trial, on the ground of newly discovered evidence, that defendant can prove an equitable defence, and offset to the note in suit. This motion was overruled.</p> <p>1. The plea in reconvention ought to have been allowed by the court below, because it was in proof that the Merchants’ Bank, in all its transactions with the defendant, Gove, held itself out as principal.</p> <p>2. The judgment of the court below, overruling the motion for a new trial, was erroneous, after the affidavit taken and filed as the basis of said motion.</p>

This is an action against the maker and endorser of a promissory note, given for the price of a lot, and secured by mortgage on the premises.

This is an action on a draft, against the drawer and acceptor on a promissory note, given as collateral security of the draft, signed by Charles Wilkinson, the payee of the draft, and one C. Watson, endorsed by F. Bryde. The tenor of the draft is as follows : “ New-Orleans, February 26, 1839. “ Mr. Barnes; Please pay Charles Wilkinson the sum of- - $560, for plastering done on your building, and charge the same to my account.

This is an action against the defendant as possessor of a lot of ground, purchased by him at public sale, and subject to a mortgage to secure the ultimate payment of two notes, given by H. Florance & Co., as part of the consideration of said lot, to French and Meux, for four hundred and eighty-one dollars each.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an aclion to recover the sum of twelve thousand dollars, as the difference between the first and second sales of property, first adjudicated to the defendant; and on his failing to comply with' the terms, resold on his account, and at his risk. He bid nineteen thousand dollars at the first sale, and at the second, it was struck off to Joseph E. Whitall for seven thousand dollars.</p> <p>The defendant pleaded a general denial, but admitted he bid for the property as alleged, and it was struck off to him ; that if the contract of sale was not carried into effect, it was the fault of the plaintiff in not removing sundry mortgages, of greater amount than the value of the property. He denies the right of Banks to resell the premises, or claim from him the difference between the two sales.</p> <p>Upon these pleadings and issues the cause was tried. The plaintiff offered evidence to show that he tendered the necessary act of sale, and required of the defendant to comply with its terms.</p> <p>Whitall, to whom the property was struck off at the second sale, was called as a witness, and declared he was not present at the sale ; that some one met him, soon after, and told him he had bought the property very cheap, and advised him to go and accept the sale, which he did ; but states he subsequently conveyed the property to the plaintiff, without receiving any of the money or notes mentioned in the act as the price or consideration: in fact, Banks paid him no consideration.</p> <p>There was other testimony adduced on the trial, not material to notice.</p> <p>The district judge was, however, satisfied with the plaintiff’s proof and right to recover. Judgment was rendered against the defendant for the sum claimed, and he appealed.</p> <p>insisted that the defendant was duly and properly put in default, for having failed to comply with the terms of the first sale, and that he is bound for the deficiency in price. Louisiana Code, J 1 , ' 1905-6-7, 2539; 3 Louisiana Reports, 384; 5 idem., 375; 7 idem,., 506.</p> <p>urged that the plaintiff was in fault in not disincumbering the property, as was required ; and that there was no legal delivery.</p> <p>2. The plaintiff sustained no damage, and has no right whatever to recover. The second sale was feigned and simulated, and does not authorize an action of damages for thé difference in price.</p>

This is an action by way of opposition filed by Thomas H. Maddox, testamentary executor of Eliza Baldwin, deceased, and tutor of her minor son, to an item of seven thousand five hundred dollars, charged in the account of Henry Carleton, his co-executor, for professional services as attorney and counsellor at law, rendered the estate administered by them.

This is an action by the curator of the vacant estate of the late John Gravier, to recover two lots of ground in New-Orleans, which had been seized under execution as the property of Gravier, and sold at sheriff’s sale, and purchased in by the late Pierre Liquet, for one thousand and thirty dollars, in November, 1823, who gave his twelve months bond; and entered into a written agreement with Gravier to reconvey him the property, on being reimbursed and secured for the price…

This case commenced by injunction. The Orleans Navigation Company and H. J. Ranney, Esq., were availing themselves of a provision in the charter of said company, to construct a rail-road, or two connected rail-roads, from a point in the city of New-Orleans to lake Pontchartrain, which, the plaintiff’s allege, is in violation of their exclusive privilege and right to make and use a rail-road from the city to the lake.

This is an action against the Gas Bank, to render it liable for failing and neglecting to have a certain bill of exchange, deposited with them for collection, presented to the acceptor for payment at maturity, and in not giving the proper or necessary notice to secure the liability of the parties to it.

The plaintiff took out an order of seizure and sale against a lot of ground, which he had sold to the defendant. In the mean time, one James Wright had obtained a judgment by attachment against the defendant, with a privilege on the lot for repairs made, and work done on it. The lot was sold under the plaintiff’s order of seizure, and purchased in by him.

<p>ATPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action against the maker and endorsers of a note.</p> <p>The defendants pleaded a general denial; and averred, that said note was given for the price of property in Lafayette, of which they are in great danger of eviction, by Poultney’s heirs ; suit having been commenced against part, and threatened against all the possessors of property within the limits of the Poultney claim ; and that the consideration has failed, and the plaintiff took said note, with, full knowledge of this, after it was due.</p> <p>There was no proof offered in the defence, at the trial. The plaintiff had judgment, and the defendants appealed.</p>

The heirs of Peirre Auguste St. Martin, the insolvent, made opposition to the tableau of distribution filed by René Lemounier, syndic of the creditors of the insolvent, claiming to be placed on said tableau as privileged and mortgaged creditors, of superior rank, for three thousand and thirty-seven dollars, the alleged amount of paraphernal property inherited by their deceased mother, and received by her husband, the insolvent, during marriage.

<p>APPEAL FROM THE PARISH. COURT, FOR THE PARISH AND CITY OF-' NEW-ORLEANS.</p> <p>This is an action against the defendant, in which the-plaintiff alleges, he is a creditor of the firm of Tarbe & Nash,, who have made a surrender, and Tarbe has been appointed syndic.</p> <p>He expressly alleges, that they have not made a fair surrender ; that Tarbe has certain goods and merchandize in his possession and store, which he has never given up, and still, retains, to the injury of the petitioner He further states,, that he fears said Tarbe will place said property and goods beyond the reach of creditors. He prays for a writ of sequestration and that the property be sequestered and held subject to the further order of court-* or that it be sold for the benefit? of creditors, and for- general relief.</p> <p>The sequestration was, on a rule taken by defendant on-> plaintiff, set aside.</p> <p>The defendant then filed an exception, averring that there. was no cause of action set forth in the petition, and that he„ as syndic, could not be sued in this manner.</p> <p>The plaintiff appealed from the judgment on the rule setting aside the sequestration.</p> <p>insisted that the suit was in the nature of a conservatory measure, to preserve and secure the property of the insolvent for the benefit of all the creditors, and that the sequestration was improperly set aside.</p> <p>1. The judgment appealed from is correct, and must be affirmed. The whole proceedings were illegal. There is no law authorizing suit to be instituted against a syndic; the plaintiff should have ruled him into court to file a tableau, and if guilty of malfeasance or negligence, should have caused him to be removed from the syndicship, and then sued him for damages, in his individual capacity. 6 Martin, JV. S. 126 ; Laws of 1837, p. 96.</p> <p>2. The sequestration was properly set aside ; there is no law authorizing the writ to issue in such a case. Code of Practice, article 275 ; 2 Moreau's Digest, 426, section 9.</p>

This is an action on an account rendered, against the defendants, for materials and articles furnished, and work done at their instance, and employed in the building of four houses for Messrs. Field, Pritchard, Gasquet and Bringier.

This is an action by the drawer against the firm of Tilghman & Barnes, as the acceptors of a draft, and judgment is prayed against Barnes alone. He appeared, pleaded the general issue, and averred, that if he is liable at all, it is only for one-half of the draft sued on; their firm being an ordinary partnership.

This suit commenced by attachment. Parmele swears, that “ he is a partner of the firm of Parmele & Baker, and that James H. Johnston is really indebted to said firm in the sum of five hundred and ninety-two dollars and seventy-five cents, &c. On the same day, the writ was put in the hands of the sheriff, and property attached in the hands of Taylor, Gardiner & Co., who were cited as garnishees.

<p>Where the facts are fully stated in the petition, and the appellant swears that “ the matters of fact set forth in the petition, are true and correct,’ it is sufficient to support an injunction; for if the facts are false, the oath would subject the party to the penalties of perjury.</p> <p>The article 739 of the Code of Practice, points out the only reasons for which the sale of mortgaged property, by the executory process, can be arrested.</p> <p>A mortgage for a principal sum, secures also the interest and costs in enforcing payment.</p> <p>Taking a note in renewal of one secured by mortgage, is no novation when the first one is not given up.</p> <p>In the executory process, no copy of the petition is required to be served on the defendant. A simple notice is necessary.</p> <p>Want of amicable demand does not authorize an injunction, to prevent or delay the payment of a debt.</p> <p>"Where the facts are fully stated in the petition, and the affiant swears that “(he matters of fact set forth in the petition are true and correct,” it is sufficient to support an injunction ; for if the facts are false, the oath would subject the party to the penalties of perjury.</p> <p>The article 739 of the Code of Practice, points out the only reasons for which the sale of mortgaged property by the executory process, can be arrested.</p> <p>A mortgage for a principal sum, secures also the interest and costs, ¡n/ enforcmg payment.</p> <p>Taking a note one Secured by mortgage, is no novation when the first one is</p> <p>In the executory process, no copy ot the petition is required the^6 defendant A simple notice is necessary.</p> <p>Want of amidoes not authortopreventorde^ lay the payment of a debt.</p>

This is an action against the maker of a promissory note. The defendant denied owing the plaintiff any thing, as he received no value for the note. On the trial, the plaintiff produced the note and protest in evidence, and also the testimony of a witness, which was not taken down in writing. The clerk and judge both certify this fact. There was judgment for the plaintiff, and defendant appealed.

This is an action against the maker of a promissory note. There was, first, a plea of the general issue, and admitting the signature; and in a supplemental answer, the further plea of a prolongation of time of payment, for eighteen, twenty-four and thirty-six months; a kind of voluntary respite. A document to support this plea, signed by three or four creditors, and among them the plaintiff, consenting to give this time on condition that all agreed to it, or signed.

This case commenced by a surrender and application on the part of the plaintiff and insolvent, for the benefit of the insolvent laws. Some of the creditors charged fraud, and denied him the relief and protection of those laws, and that he acted in gross fraud of creditors, in not making a fair surrender of his property, and exhibit of his affairs. This case has been before this court on a former appeal, and remanded for a new trial.

This is an action against the drawer and acceptors of a bill, payable twelve months after date. ■ The defendant, Gaiennié, averred that Doughty, the drawer of the bill, and who is also the debtor, assured them he had settled with the plaintifi, and would soon be in the city; wherefore he reserved all exceptions, &c., and required strict proof. There was judgment against all the defendants, and Gaiennié alone appealed.

This is an action against the maker and endorser of a promissory note. The defendants pleaded the general issue, and denied that the plaintiffs were the true owners, or ever gave any valuable consideration for the note sued on.

This is an action against the maker and endorser of a promissory note, under protest. The defendants admitted their signatures, pleaded the general issue and the want of amicable demand. There was judgment in solido against the defendants, on the production of the note and protest, and Crocker alone appealed.

This is an action against the maker and endorser of a promissory note. The defendants pleaded the general issue, and denied that the plaintiffs were the legal holders of the note sued on. On the production of the note and protest, the plaintiffs had judgment in solido, and the defendants appealed.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>The clerk’s certificate to the record, states that it contains all the evidence “ except the document withdrawn by agreement.” This was a record of the City Court, which both parties agreed might be withdrawn without diminution of the record, and each to have such papers copied from it as they might want to use. The suit was by attachment, and judgment obtained against the defendant, Pollitt, to be satisfied out of funds attached in the hands of Thorn, and he alone appealed.</p> <p>insisted that the court could not compel the parties to use testimony they did not want, and that the record contained all that was necessary to the decision of the case.</p>

<p>APPEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.</p> <p>This is an action against the endorsers of a note. The defendants pleaded general denial. There was judgment against them, and they appealed.</p> <p>No serious defence was offered in the court below, and-none made in this court.</p>

This is an action on two promissory notes, against the maker. A general denial was pleaded, but no defence made at the trial. The plaintiff had judgment, and the defendants appealed.

This is an action on five promissory notes, against the defendants, as makers, and S. Peyroux, as endorser. There was no serious defence set up, and none attempted to be proved. Judgment was rendered for the whole amount claimed, bearing five per cent, interest. The defendants appealed.

On the 28th May, 1838, P. Soulé, Esquire, one of the creditors of the insolvent, came and. informed the court, that J. B. Marks, who was appointed syndic of the creditors of the insolvent, had, without leave or authority, absented himself from the state; took a rule, that he be notified at the place of his domicil, to show cause within ten days, why he should not be removed from office, and a new syndic appointed.

This is an action on a promissory note for four hundred and thirty-seven dollars and fifty cents, given for rent of a house, and for one hundred dollars damages on account of injuries done to the house, and further, that the furniture be provisionally seized.

The plaintiff alleges, that he is the owner, and has been for some time in the quiet possession of a tract of land in Tunica Bend of the Mississippi, containing twenty arpents front, by the depth of forty, with scertain definite boundaries. • He alleges, that the defendants, within a year past, have illegally and forcibly taken possession of it, and cut down wood and destroyed timber, &c., to his,,great injury and damage.

This case commenced by the executory proceeding. Barker having sold to Banks and Cammack a lot of ground in New-Orleans for ten thousand dollars, the latter gave their six promissory notes, payable at different periods, drawn and endorsed in blank by each other, and secured by mortgage on the premisses.

<p>Where heirs sue their co-heirs for a partition of property inherited from their common ancestor, in the Probate Court, and another set of heirs intervene' and claim title to one-half the property, under another and different ancestor, it involves questions of title, which must be brought before the courts of ordinary jurisdiction.</p> <p>The Probate Court can inquire into the validity of sales and titles to immovable property, whenever the question arises collaterally in matters within its jurisdiction.</p> <p>In a contest about the right and title to property, between two sets of heirs, claiming under different ancestors, and which is not a necessary incident to a partition, the Probate Court is without jurisdiction.</p> <p>So, where one set of heirs intervene in the Probate Court, and claim title to half the property, in an action of partition between co-heirs, inheriting from diiferent ancestors, their petition of intervention will be dismissed for want of jurisdiction.</p> <p>Where heirs sue their coheirs for a partition of property inherited from their common mother, in the Probate Court, and another set of heirs intervene and claim title to one half of the properly .under another and different ancestor, it involves questions of title which must be brought before the courts of ordinary jurisdiction.</p> <p>The Probate Court can inquire into the validity of sales and titles to immovable property, whenever the question arises collaterally in matters within its jurisdiction.</p> <p>about the°°ri(jht and title to pro-two sets.of íiefrs'! ferent aneestors, and which is not a necessary incident to a Pro^ate'fcourtis without jurisdic-</p> <p>So, where one set of heirs intervene in the Probate Court, and claim title to half the property, in an action of partition between co-heirs, inheriting from diiferent ancestors, their petition of intervention will be dismissed for want of jurisdiction.</p>

This suit commenced by attachment. On the 5th October, 1830, Wm. T. Hepp instituted suit on their promissory note, against Glover & Rose, commercial partners residing in Mississippi, and attached a quantity of goods and merchandize in packages, in the hands of H. O. Ames, in New-Orleans, alleged to be the property of the defendants, or of defendant Rose, and cited Ames as garnishee. There was a general denial pleaded in behalf of the absent defendants.

This is an action against W. H. M‘Murray, on his bill of exchange drawn at Glasgow, in Kentucky, the 20th June, 1837, for one thousand dollars, on the plaintiffs in New-Orleans, and by them accepted, as is alleged, for the benefit and accommodation of the drawer. They pray judgment for the amount of said draft, and damages, &c., and that properly of the defendant in the hands of A. H. Wallace & Co., be attached to satisfy said demand.

This is an action to recover from the defendant the amount of three promissory notes, of six hundred and twenty-five dollars each, given for part of the profits of a speculation in a town lot.

<p>APPEAL PROM THE COURT OP THE EIGHTH JUDICIAL DISTRICT, FOR THE PARISH OF LIVINGSTON, JUDGE JONES, OP THE DISTRICT, PRESIDING.</p> <p>This suit commenced by injunction. The plaintiff alleges, that he is the owner of a lot of ground in the town of Springfield, in the parish of Livingston, which he alleges the defendant, as sheriff of said parish, has illegally seized under an execution from a justice’s court, for twenty-five dollars against him, and which he positively asserts issued without any legal authority. He prays for an injunction against the sheriff who he demands, may be perpetually enjoined from proceeding any further.</p> <p>The defendant pleaded a general denial, and prayed that the injunction be dissolved, with damages.</p> <p>It appears from the evidence that one Shipler obtained a judgment before one of the justices of the peace, against Freeman, for twenty-five dollars and costs, on the 17th May, 1837. An appeal was taken to the Parish Court the 1st of June following, and was dismissed by consent, in consequence of some arrangement. Execution, however, issued the 31st August following, in virtue of which the lot of ground mentioned was seized.</p> <p>There was judgment dismissing the injunction, and the plaintiff appealed.</p> <p>1. The injunction was dismissed. The only error is, that it should have been dissolved, with full interest and damages, according to the act of 1831.</p> <p>2. The evidence shows that the execution issued properly, for although it was attempted to be shown that the judgment was paid in part and settled, yet it is evident it remained unsatisfied ; therefore, the lot was legally seized, and nothing short of actual payment could stop the sale.</p> <p>3. The injunction was wrongfully obtained, in every respect. Even if there had been good grounds, the plaintiff in execution (Shipler) should have been made a party with the sheriff.</p>

This is an action against Merced Vidal, f. w. c. as principal, and M. Debergue, f. m. c. as surety on a merchant’s account. The plaintiffs annex their account for three hundred and sixty-six dollars and twenty-nine cents, and pray judgment against (he defendants, in solido, for the amount thereof. The defendants severed in their answers.

This is an action against the defendant, and one Smith, for seven hundred and twenty-eight dollars, the price of one hundred and four barrels of flour, which the plaintiffs allege they sold and delivered to said defendant. They pray for judgment, and that the flour be sequestered, and held subject to their demand. The defendant denied, generally and specially, every allegation and fact set forth in the petition.

.APPEAL PROM THE COURT OF THE FIRST DISTRICT. This is an action to compel the defendant to perfect a sale, and make a title, to a certain lot of ground in New-Orleans, alleged to have been sold at auction, and bid off by the plaintiff for two hundred and seventy dollars, the 15th of January, 1830. The plaintiff instituted this suit the 15th of April, 1834, to compel a compliance, on the part of the defendant, with the adjudication.

<p>A judgment which is reversed hy the Supreme Court, and remanded for a trial de novo, does not settle the rights of the parties and form res judicata.</p> <p>The assignment of a part of a debt will be enforced in the courts of chancery, and by the courts in this state, where the obligation resulting from the assignment of a part of the debt may be implied from the custom of trade, or course of business between the parties.</p> <p>The courts of this state will enforce an equitable right arising in another state, when the remedy is sought here.</p> <p>Prescription is interrupted by a suit in the United States Court, sitting in another state.</p> <p>A judgment which is reversed by the Supreme Court and remanded for a trial de novo5 docs not settle the rights of the parties and form res jtfdicata.</p> <p>The assignment of a part of a debt will be enforced in the courts of chancery, and by the courts in this state, where the obligation resulting from the assignment of a part of the debt may be implied from the custom of trade, or course of busipa(.t¡egtween the parties.</p> <p>The courts of this state will enforce an equitable right arising in another state, when the remedy is sought here.</p> <p>. Prescription is interrupted by a suit in the Uni.'piinginaMtber state></p>

The plaintiff sues as administrator of Jacob Smith, deceased, to recover from the defendants the sum of one thousand one hundred and one dollars, the price of a tract of land adjudicated to G-. Davis, at the probate sale of Smith’s estate, in September, 1836, who gave Thomas Webb as his surety. He alleges, that he was appointed administrator while a resident of the parish of St. Helena, but that he now resides in the parish of St. Tammany.

<p>The maker of a note cannot object to the insufficiency of the protest, because whether the note is protested or not, does not increase his liability.</p> <p>Protest is necessary to give interest, when none is stipulated, and is good to prove a demand, if specially denied.</p> <p>The maker of a note cannot object to the insufficiency of the protest; because whether the note is protested or not, does not increase his liability*</p> <p>Protest is necessary to give interest when none is stipulated, and is good to prove a demand, if specially denied.</p>

This is an action on a promissory note, signed by “ Mondelli & Reynolds.” The plaintiff prays judgment, in solido, against the defendants; and for all general and equitable relief. Mondelli alone answered. He admitted the signature of the firm, but denied his liability, in solido ; his firm being a particular partnership. On these pleadings and issues the cause was tried.

<p>The court cannot receive as proper evidence, any document or fact which the judge a quo states in his judgment to have been proven. It must appear by proof independently of his opinion or statement.</p> <p>So, where the judgment of a Parish Court is olfered in evidence in the District Court, and which is not copied into the record, and attested by the officer of the court, but is embodied in the judge’s opinion, it is insufficient, and cannot be used as evidence on the appeal.</p> <p>This court will not dismiss the appeal for an imperfection in the record, but continue the case for a reasonable time, to have the record perfected.</p> <p>The court cannot receive, as proper evidence, any document or fact which the judge a quo states in his judgmenttohave been proven. It must appear by proof independently! of his opinion or statement.</p> <p>So, where the judgment of a Parish Court is offered in evidence in the District Court, and which is not copied into the record and attested by the officer of the court, but is embodied in the judge’s opinion, is insufficient, and cannot be used as evidence on the appeal.</p> <p>This court will not dismiss the appeal for an imperfection in the record, but continue the case for a reasonable time to have the record perfected.</p>

<p>ArrEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>This is an action instituted on two promissory notes, one for three thousand dollars, and one for four thousand dollars, executed by the defendant the 9th November, 1832, payable two years after date, to the order of Whitall, Jaudon & Co., of which firm the maker of the notes was a member, and by them endorsed in blank. They purport to have been given in part of the price of a lot of ground in New-Orleans, and secured by a mortgage retained on it. There was a payment made on one of them of fifteen hundred dollars, the 19th February, 1838, by the defendant,, to the present holder.</p> <p>The defendant expressly denied being indebted to the plaintiff, in any manner whatever; having been released from this and all other claims by a concordat with his creditors, to which the plaintiff was a party.</p> <p>The following clauses of the concordat constitute the grounds of defence :</p> <p>“Personally came and appeared, Joseph E. Whitall, of New-Orleans, one of the members of the firm of Whitall, Jaudon & Co., trading in the city of New-Orleans, and charged with the administration of the affairs of said firm, which said firm is composed of the said Joseph E. Whitall, and Ashbel G-. Jaudon, residing in Philadelphia, of the one part; and the undersigned, creditors of said firm, of the other part; who] hereby agree, that whereas the said firm of Whitall, Jaudon & Co. having, by the pressure of the limes, various failures of their debtors, and losses in trade, become unable to meet their engagements, they propose extra-judicially, to make a cession, as well of the partnership effects as the individual property of the said J. E. Whitall, and an adjustment with their creditors on the following terms and conditions, to wit.:</p> <p>“ The said parties of the first part hereby transfer and assign to the parties of the second part, all the property, moveable and immoveable, rights, credits and effects whatsover, in any wise belonging to or appertaining to said firm, or to the said J. E. Whitall, according to the annexed schedule, &c., to be administered, sold and disposed of by such syndic or agent, and at such times and on such terms as the said parties of the second part, or the majority in number and amount shall decide on; and in case of an equality in amount, as the majority in number shall decide on :</p> <p>“ The proceeds to be disposed of equally amongst said creditors, and any others who may within one year from the 'execution of this act choose to become parties; regard being always had to priority of privileges, and mortgages, where they exist, &c.</p> <p>“ That in consideration thereof, the said parties of the second part, as well as those wrho may hereafter become such, do covenant and agree, that they will give, and do by these presents give a. full and entire acquittance and discharge, as well to the said Joseph E. Whitall, as to the members of said firm, individually and jointly, of all claims, debts and demands whatsoever.”</p> <p>The foregoing are the clauses in the concordat relied on. The notes now in suit are placed on the schedule, which is headed, “ Statement of Whitall, Jaudon & Co.’s affairs,” and are endorsed by One firm as the payees. They are placed under the head of “Bills Payable.” Andrew Hodge, the plaintiff, is set down in the list of creditors, for twenty-six dollars and fifty-two cents. The lot of ground was placed among the assets under the head of “Real Estate,” for which Whitall gave the notes in question. On this evidence, the parish judge, presiding was of opinion, that the arrangement between the creditors of Whitall, Jaudon & Co. cannot be set up as a bar to the claim of a creditor of J. E. Whitall individually. Judgment was given for the amount due on the notes, and the defendant appealed.</p> <p>urged the affirmance of the judgment, as being in accordance with law and the evidence. The concordat relied on did not discharge the defendant from his individual liabilities ; and he is consequently bound as the maker of the notes sued on.</p> <p>insisted that he was discharged by the concordat, because it gives a full and entire discharge to J. E. Whitall, as well to the members of the firm, individually. The plaintiff was a party to this act discharging the defendant., and cannot now claim this debt from him.</p>

<p>ON A REHEARING.</p> <p>The court cannot inquire into the terms and conditions on which property mortgaged by special privilege, should be sold, which has been given up | to the creditors by a concordat.</p> <p>If the property mortgaged and ordered to be sold to satisfy the judgment I is not sufficient, the defendant not being released by the concordat, will bel personally bound to pay the balance due on the judgment, if there be any.</p> <p>The court cannot inquire into the terms and conditions on which property mortgaged by special privilege, should be sold, which has been given up | to the creditors by a concordat.</p> <p>mortgaged and soicf'*to satisfy the ^deYfYdant not being releasdahwiilbeperpay^the^baiance due on the judgany.5</p>

This is an action against the maker of a promissory note for five hundred and fifty-two dollars.

<p>Where two of the original plaintiffs, in a joint action, die after judgment, and a rule is taken by the other seven, on the surety in the bail, to show cause why he should not pay their share of the judgment: Held, that the judgment severed their joint interest, and that each has a right to recover his virile share from the surety.</p> <p>The authority of an agent of the plaintiffs, and of the attorneys, in prosecuting the original suit, is put to rest by the judgment, and cannot be questioned in a proceeding against the hail.</p> <p>The premature signing of judgment, as between the parties, is not assignable as error.</p> <p>When it appears that the defendant is a non-resident, but has an attorney of record, service of notice of judgment on the attorney, is sufficient.</p> <p>It is not necessary for the sheriff to call on the defendant’s attorney, when he is absent, to point out property; and the return of “ no properly, after demand of the plaintiff’s attorney,” was sufficient, to authorize a capias ad satisfaciendum to issue.</p> <p>The fact that the ca. sa. was returned two days before the return day, is not material in a proceeding against the bail, when the rule on him to pay the judgment was not taken until the return day, and full notice given before trial on it.</p> <p>Where the principal debtor was surrendered to the sheriff on the 23d, and judgment against the bail bears date the 18th January, the surrender comes too late to operate a release of the bail.</p> <p>plaintiffs, in a joint action, cue after judgment, taken* by'* the the*1'surely” i" their bail, to he^houw 'nol oflhejudlmen'c Meld, that the iered Iheiryoint ealh^as*”dright to recover his mrile share from the surety.</p> <p>The authority of an agent of the plaintiffs, and of the attorneys, in prosecuting the original suit, is put to rest by the judgment, and cannot be questioned in a proceeding against the bail.</p> <p>The premature signing of judgment, as between the parties, is not assignable as error.</p> <p>When it appears that the defendant is a non-resident, but has an attorney of record, service of notice of judgment on the attorney, is sufficient.</p> <p>It is not necessary for the sheriff to call on the defendant’s attorney, when he is absent, to point out property; and the return of i(no property, after demand .of the plaintiff’s attorney,” was sufficient to authorize a capias ad satisfaciendum to issue.</p> <p>The fact that the ca.5a.was returned two days before the return day, is not material in a proceeding against the bail, when the rule on him to pay the judgment was not taken until the return day, and full notice given before trial on it.</p> <p>Where the principal debtor was surrendered to the sheriff on the 23d, and judgmentagainst the bail bears date the 18th January, the surrende comes too late to operate a release of the bail.</p>

HELENA. This is an action of partition, instituted by the children and representatives of Thomas Kemp, deceased, against the brothers and sisters and their descendants, of David Kemp, who died in 1820, without issue, leaving a large property in the parish of St. Helena, which had been inventoried and partially divided, by several decrees of the Probate Court. The plaintiffs represent Thomas Kemp, who was also a brother of David Kemp, whose estate is sought' to be partitioned.

This is an application for a mandamus, to compel the judge of the Parish Court to try the case of Kernan vs. Chamberlain & Beldin, forthwith.

This is an action in which the plaintiff claims a deposit of seven thousand dollars, made in the Savings Bank of New-Orleans, by Mary Amanda Addison, late wife of Nott, on the ground that she is dead, and that he is her only brother and nearest heir. He shows that he has been recognized as the only lawful heir to the deceased, by the Probate Court of the parish of Jefferson, where she died, and where her succession was opened.

<p>This is an application for a mandamus to the judge of the Parish Court of New Orleans, commanding him to grant an appeal from an order or judgment discharging a debtor from imprisonment under a writ of habeas corpus,. in the case of the Citizen’s Bank and others vs. A. Maurin.</p> <p>The Citizen’s Bank and several others, presented their joint petition, alleging they were creditors of the firm of A. Maurin & Co., in the aggregate sum of eighty-eight thousand one hundred and sixty-five dollars, and had instituted suit therefor in the Parish Court, against Antoine Maurin, sole liquidating partner of said firm, and also charging said defenddant with fraud, in having sold a great portion of his real property and slaves, to the prejudice and in fraud of his creditors; that upon these facts being alleged they obtained an order of arrrest; the said A. Maurin was arrested and imprisoned under the provisions of the tenth and eleventh sections of the act abolishing imprisonment for debt, until he gave bond and security in the sum of ninety thousand dollars.</p> <p>On the first of June, 1840, Maurin’s counsel took a rule on the plaintiffs to show cause why the order of arrest should not be set aside, on the ground that the affidavit is insufficient to hold to bail. This rule, on hearing the parties, was made absolute, the order of arrest set aside, and a writ of habeas corpus issued, on which the defendant was brought up and discharged. The plaintiff then prayed for a suspensive appeal, from the orders or judgments setting aside the order of arrest and releasing the defendant.</p> <p>The parish judge refused the appeal, being of opinion that imprisonment, under the new act abolishing imprisonment for debt, is a criminal proceeding; that the act is a criminal law, and, according to the showing of the plaintiffs, the acts complained of were committed by their debtor before the passage of the law; and that with regard to him, it is an ex post facto law, and cannot be constitutionally enforced.</p> <p>The plaintiff now look a rule in this court on the parish judge, to show cause why a peremptory mandamus should not issue, commanding him to allow the appeal prayed for in this case.</p> <p>They contended that the proceeding was a criminal one. That the debtor was required to stand his trial for the fraud charged, and if found guilty, to suffer the punishment prescribed in the law. That he should be condemned as a convict, for defrauding his creditors, to three years imprisonment. From criminal proceedings, no appeal lies.</p> <p>That this case is not one in which an appeal lies, according to law; and refers to his judgments in the case for the grounds and reasons of the refusal of the appeal, as prayed for.</p> <p>“ The first ground upon which this rule is taken, is that the affidavit is insufficient to hold to bail.</p> <p>On the first ground, the court is clearly of opinion, that the order of arrest complained of is widely different from an order of arrest, or order of bail, as it is generally termed in practice, as defined and explained in article 210 of the Code of Practice, the latter being allowed only in cases of intended departure by the debtor; whereas, the former is a remedy of an entirely new species. The law creating this new remedy has not even required an affidavit, and the court, in requiring one in the case at bar, has only been actuated by a desire of affording greater security for the person of the debtor.</p> <p>The second and third grounds, which will be examined together, are that the order of arrest is illegal, and that defendant is not liable to be arrested on the showing of plaintiffs, and that their other proceedings are illegal and oppressive.</p> <p>Upon the two grounds, the court has been favored by most able arguments on both sides, a thing which was highly desirable, inasmuch as the act of 1840, abolishing imprisonment for debt, under which the proceedings in this case arose, being of but recent date, and operating great changes in our legislation, the court could derive no aid from any preceding jurisprudence.</p> <p>The plaintiff in the rule contends, that the order of arrest is illegal, because the provision of the law of 1840, under which the proceedings were had, are not applicable to acts done before the passage of the law; and that, with regard to acts complained of in the plaintiff’s petition, it is an ex post facto law, and, as such, unconstitutional.</p> <p>That the acts complained of were done anterior to the passage of the law, is positive, and results from the very allegations in the petition ; indeed, it is admitted at all hands. But, can the law in question be said to be one ex post facto ?</p> <p>The definition of an ex post facto law has not been the subject of discussion. It is well understood, and it is further admitted at all hands, that only such ex post facto laws are prohibited by the constitution as are of a criminal or penal nature.</p> <p>Now, are the provisions of the law of 1840, under which the present proceedings have been instituted, of a criminal or penal nature 1</p> <p>Every law that defines a crime or offence, and affixes a punishment to the commission of such an offence, is a criminal law.</p> <p>In the act of 1840, now under consideration, the 10th section defines a new class of offences, under the denomination of fraud ; and the 13th section, enacts a punishment upon a conviction of any of the offences mentioned in the 10th section.</p> <p>That a civil remedy is mingled with the punishment of the offence, does not deprive that law of its criminal character.</p> <p>It has been contended in argument by the plaintiff’s counsel, that the legal provisions, above referred to, partake no more of the nature of a criminal law than the legal provisions of the act of 1817 and 1808, relative to frauds committed by insolvent debtors ; but I think there exists between them a wide difference. Under the law of 1817, a debtor who makes a surrender of his property to his creditors, for the purpose of avoiding to go to jail, and who is found guilty of fraud, is deprived of a benefit which the law allows only to honest debtors. He is merely deprived of a benefit for which he had himself applied ; he is not, in fact, condemned to imprisonment, but he is merely left subject to the imprisonment to which he was subject before. Under the law of 1808, a debtor who is actually imprisoned for debt, and who asks to be liberated, if he be found guilty of fraud, is not condemned to be imprisoned, but the law does not take him out. Under both these laws, debtors guilty of fraud are merely deprived of a favor or a benefit for which they apply, and left in the situation in which they were before their application. But even then, their creditors can discharge them, either when they are paid of their debt, or if they choose to exonerate their debtor from the payment. Not so, however, under the tenth, eleventh and fifteenth sections of the act of 1840. Here the debtor applies for no favor or benefit, but his creditors arrest him, not because he owes a debt, but because he has committed fraud. He is tried, and if found guilty, the court is bound to condemn him to an imprisonment for a period not exceeding three years. Nor is it in the power of this creditor, except in one case specially provided for, to discharge him from imprisonment after sentence. The imprisonment, therefore, is evidently the punishment which the public inflict, for the commission of the crime of offence of fraud. If this reasoning be correct, the law under consideration is a criminal or penal law. In order to be . . r , constitutional, it can only provide for what happens posterior to its passage ; every act which, anterior to its passage, was not susceptible of punishment, cannot be punished in consequence of its provisions, for with regard to all such acts, it would be ex post facto, and as such, unconstitutional. In the case before us the acts complained of, and which are of the nature of those repealed by the 10th section of the law of 1840, are by the very showing of the plaintiff’s petition, anterior to the passage of the law. Then with regard to them, that law is ex post facto, and being ex post facto cannot be constitutionally enforced.”</p>

.PPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITV OF NEW-ORLEANS. This is an action on a promissory note, executed by George Green, for two thousand five hundred dollars, the 25lh January, 1837, payable to S. W. Oalcey, three years after date, by him endorsed in blank. The plaintiff was the second endorser, when the note was put in circulation, and at maturity it was protested for non-payment.

This is an action against the surety in a prison limits bond, to satisfy a judgment which the plaintiff had obtained against Puech & Duplessis, and another defendant; in which Puech had been arrested on a writ of capias ad satisfaciendum, which issued separately against him, and he gave bond, with the defendant as his surety for the prison limits. The condition of the bond being broken, the plain tiff instituted this suit against the surety for the amount of his debt.

<p>Notice of protest left at the domicil or dwelling house of the endorser, is sufficient.</p>

This is an action to recover the sum of two hundred and forty-nine dollars, which the plaintiff alleges the defendant, Bredall, owes him, and for which he gave his draft on J. A. Merle & Co., and that it was protested for non-acceptance. He prays judgment for the amount of said draft, and that an attachment issue against the property of the said Bredall. The sheriff returned, that he received the attachment the first of November, 1838, and attached the schooner Camanche.

In this case, a rehearing was applied for and granted. who are appellees, insisted that the plea of prescription had been overlooked, which was important, as regarded the claim of Wiltz, the appellant; and the ground on which the appellees relied for the confirmation of their judgment. 2. This claim is for supplies and things necessary for the equipment of the vessel, and is prescribed by one year. Louisiana Code, 3499.

This is an action on two promissory notes for five hundred and ninety-three dollars and twenty-three cents, and five hundred and ninety-five dollars and thirty-seven cents, signed by While, Turpin & Nephew, a commercial firm residing and doing business at Grand Gulf, in the state of Mississippi, dated the 7th April, 1838, payable on the 15th of November and first of December following, to the order of the plaintiffs, at the Grand Gulf Rail-road and Banking Company, in…

<p>In a possessory action, in order to bring the case within the doctrine recognized in the decision of Ellis vs. Prevost, 13 Louisiana Reports, 230, the plaintiff must show not only acts of limited and restricted possession, but also to indicate, by legal evidence, the extent and full limits of the property of which he claims the possession.</p> <p>Where the plaintiff, in a possessory action, fails to show that he possessed actually, to a certain extent and limits, the tract of land he claims, he cannot recover.</p> <p>It is insufficient, for one who alleges his possession to extend to a large tract of land with well defined limits and boundaries, to prove only acts of possession to a small part or fraction of it.</p> <p>In a possessory action, in order to bring the case within the doctrine recognized in the decision of Ellis vs. Prevost, 13 Louisiana Reports, *230, the plaintiff must show not only acts of limited and restricted possession, but also to indicate by legal evidence the extent and full limits of the property of which he claims the possession.</p> <p>Where the plaintiff, in a possessory action, fails to show that he possessed actually, to a certain extent and limits, the tract of land he claims, he cannot recover.</p> <p>It is insufficient, for one who alleges his possession to extend to a large tract of land with well defined limits and boundaries, to prove only acts of possession to a small part or fraction of it.</p>

On the 14t.h May, 1839, Mrs. Miriam Fowler, late wife of George W. Boyd, died in the city of New-Orleans, and on the 20th of the same month, Mr. Boyd presented his petition to the judge of probates, praying that an inventory be made of his deceased wife’s property, and that he be put in the possession of the same, in virtue of the following clause in their marriage contract. “1.

This is a petitory action. The plaintiff alleges that he is the owner of a tract of land situated in the parish of West ¡Baton Rouge, on the west bank of the Mississippi, having forty arpents in front, by the depth of forty, which he purchased from the heirs of Wm.

1. The court intimates very distinctly, that if this case were to be decided on the relative strength of the titles, the plaintiff would succeed; but it is decided against him, on the plea of prescription, “ the prescription of ten, and perhaps that of thirty years.” The points investigated by the court, in connection with the plea of prescription, were these two: 1st. The possession of Mathurin and others, from 1807 to 1814, caused an interruption. 2d. Baudin was a…

This suit commenced by injunction. The plaintiffs show that in July, 1837, they purchased one undivided eighth of a square or islet of ground in New-Orleans, paid part of the price in cash, and for the balance gave their notes, which they paid at maturity.

<p>The act of 1832, for opening streets in New-Orleans, requires that the commissioners of estimate and assessment should be competent to serve as jurors in the District Court, but a privilege of exemption from serving on the jury, does not render a person incompetent to serve as a commissioner.</p> <p>The assessment of commissioners, under the act of 1832, for opening and improving streets in New-Orleans, is their peculiar province; and like the finding of a jury or the report of experts, it should not be disturbed except for manifest error.</p> <p>The act of 1832, for opening streets in New-Orleans, requires that the commissioners of estimate and assessment should be competent to serve as jurors in the District Court, but a privilege of exemption from serving on the jury, does not render a person incompetent to serve as a commissioner.</p> <p>The assessment of commissioners, under the act of 1832, for opening and improving streets in New-Orleans, is their peculiar province; and like the finding of a jury or the report of experts, it should not be disturbed except for manifest error.</p>