Volume 16 — Louisiana Reports

This is an injunction lo stay a seizure under execution. The sheriff seized under execution, which issued on a judgment obtained by David Simmons against Pierre Joubert, jjUS|jan(j 0f the plaintiff, and one J. N. Franchebois, his surety, seven bales of cotton and a horse, which the plaintiff alleges is her separate, paraphernal property, and was pointed out to the sheriff by Franchebois, who was one of the defendants in the execution.

This is a petitory action. The plaintiff alleges, he is owner and possessor of one thousand arpents of land situated at the confluence of the rivers Teche and Atchafalaya, having twenty-five arpents front on the Teche. He derives title from the heirs and legal representatives of Henry and John Bosler, deceased.

<p>Tlie mere fact of a person’s dying in another parish, is not conclusive that his succession ought to be opened and administered there, or that it ought not to be administered in another parish where from an inventory the deceased left property.</p> <p>When a succession has already been opened and partially administered in a parish where the deceased left property, the former proceedings will be considered as prima facie evidence of the facts necessary to base the jurisdiction on an application to continue and complete the administration in the same place.</p> <p>The mere fact of a person’s dying- in another parish, is not hisClU»uooes3\on oughttobeopened and administered there, ought not1 to be administered m where, from an decease/’ left</p> <p>cession has aie/aÜ/pa/tíí/iy a^parisif where the deceased left property, the former proceedsl’dered Aprima ?r!faVtsdeiecesf sary to base the a/apphra/onTo continue and ministration in the same place,</p>

This is an action for the value of a slave which the plaintiff hired to the defendant, and who was killed whilst in the employ of the latter.

APTEAL FROM THE COURT OF TIIE FIFTH DISTRICT, FOR THE I’ARISII OF ST. LANDRY, THE JUDGE OF THE SIXTH DISTRICT PRESIDING. This is an action against the maker and endorser of a promissory' note. It was signed by L. DeKerlegand, and made payable to the order of William Wikoff, who endorsed it in blank.

<p>A judgment of the Probate Court, unappealed from, appointing the plaintiff agent, with power to collect the debts of a partnership firm, is full authority for him to sue and recover all accounts and debts due the firm.</p> <p>The authority of a judgment of court, cannot be inquired into collaterally.</p>

<p>An action for a divorce, based on abandonment of the husband, cannot be maintained, until a decree of separation of bed and board be rendered two years previous to the application for a divorce, with proof of abandonment for five years.</p> <p>The admission or confession of the husband, that he lives with another woman, in a foreign country, is insufficient evidence to authorize a divorce and to dissolve for ever the bonds of matrimony.</p> <p>The mere acknowledgment of the truth of the facts alleged, made by either of the parties, even in an authentic act, can never be deemed sufficient foundation for a decree of separation from bed and board ; a fortiori, of a divorce.</p> <p>An action for a divorce, based on abandonment of the husband, cannot be maintained, until a decree of separation of bed and board be rendered two years previous to the application for a divorce, with proof of abandonment for five years.</p> <p>The admission or confession of the husband that he lives with another woman in a foreign country, is insufficient evidence to authorize a divorce and to dissolve forever the bonds of matrimony.</p> <p>The mere acknowledgement of the truth of the facts alleged made by either of the parties, even in an authentic act can never be deemed sufficient foundation for a decree of separation from bed and board \a portion of a divorce.</p>

<p>An agent may possess for his principal, and his possession is sufficient to maintain the possessory action.</p>

This is an action instituted by F. Connelly, who sues as surviving partner of the commercial firm of P. Connelly & Son, consisting of his father and himself, and lately trading under that style in New-Orleans. The suit is instituted on two promissory notes, signed by the defendant and made payable to said firm.

This is an action to recover the sum of six hundred dollars, for plastering the defendant’s house, according to a written agreement between them. The plaintiff alleges, that he had nearly finished plastering the house, when, without any just cause, he was discharged by the defendant; but, that he has offered to finish said work in a workmanlike manner, as agreed on, but that the defendant refuses to permit him. He prays judgment for the entire sum agreed on.

ArPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. LANDRY, THE JUDGE OF THE SEVENTH PRESIDING. This case arises on the opposition of Catharine McDonald, wife of the ceding debtor, and separated in property from him, to the proceeding of the syndic, in allowing one John L. Daniel the return of a certain sum of money, which he had advanced on the price of a house and lot, purchased by him of Miles, but to which the latter was unable to make him a title.

<p>APFEAE FROM THE COURT OF PROBATES FOR THE PARISH OF ST. EANDRV.</p> <p>This is an action by the legitimate heirs of the deceased wife of the defendant, in right of their mother, in which they. claim an amount, say fifteen hundred dollars, alleged to be part of the community property existing between their late mother, and the defendant, their father, as her half of the commn. nity existing at her death. They allege, that at the death oi their mother, there was no inventory taken, and that the defendant has since intermarried with another woman, and refuses to settle with them ; and that he estimates his separate property which he brings into the second marriage at three thousand dollars. They insist that the estimated amount is not the real one ; that there was community property at the death of their mother, their half of which was worth at least fifteen hundred dollars. They pray that a settlement take place, and that the defendant be condemned to pay over whatever amount be ascertained to be actually due.</p> <p>The defendant pleaded a general denial, and averred that, in 1831, he intermarried with the plaintiff’s mother, all of whom, except the youngest, were born out of wedlock. That he brought into marriage five thousand dollars, and their mother nothing, either at the time or during marriage. That during marriage, there were no acquests and gains, but, on the contrary, losses; and the deceased left no property. That on his second marriage, in 1836, he brought in property valued at three thousand dollars; and that, whatever may have been the actual value, it, was all his separate property. He prays that the plaintiff’s demand be rejected.</p> <p>There were several witnesses examined touching the amount and character of defendant’s property during the marriage, and at the beginning of second. The judge of probates was of opinion the plaintiffs showed no community property existing during the first, or beginning of the second marriage. There was judgment for the defendant, and t he plaintiffs appealed.</p> <p>1. The plaintiffs, the offspring of defendant’s first marriage, having been legitimated by a subsequent marriage, have the same rights as if born during marriage. Louisiana Code, article 219.</p> <p>2. The court below erred in permitting the defendant to contradict, by evidence, his marriage contract with his second wife. It is a notarial instrument, and the recital and acknowledgment that he brought so much to the second marriage, was binding upon him in favor of the heirs of the first. Louisiana Code, articles 2233-4; Slarkie on Evidence, vol. 3,p. 1020.</p> <p>said there was no evidence in the record explaining or contradicting the marriage contract with the second wife of the defendant. It was the plaintiffs who attempted to introduce if, but it was properly rejected..</p> <p>2. The only question at issue is, the amount of the community property. It is shown, that community commenced with the marriage, and terminated with its dissolution ; consequently, it was only competent for the plaintiffs to show the property owned, by either of the parties, at the time it was contracted, that received while it continued, and that existing when it was dissolved by the death of the wife. Louisiana Code, 2369-70; 7 Louisiana Reports, 221; 9 Idem., 538 ; 10 Idem., 25 ; 3 Martin, 119-20-21.</p>

This is a possessory action, in which the plaintiffs claim the possession of a negro man named Stephen, which they allege, the}' and. their ancestor, Nathan Kemper, had been a long while in the quiet and peaceable possession, say, fifteen years ; until the defendant, without their knowledge or consent, about the 9th of April, 1837, inveigled and enticed him away from their lawful possession, and still retains him.

This is an action on two promissory notes of the defendant, and a merchants’ account. The latter admitted the execution of his notes, and the account was proved. He, however, averred that he had sent to the plaintiffs in New-Orleans six bales of cotton, worth four hundred dollars, which they had failed to place to his credit, and which he prayed might be allowed.

<p>Where the appellant fails to cause citation of appeal to issue, he will not be entitled to relief under the 19th section of the act of March 20th, 1839,</p> <p>“ amending the Code of Practice but in such eases the appeal will be ■ dismissed.</p>

This is an action to render the defendant liable as agent, or attorney at law, for the balance on a promissory note placed in his hands for collection. The plaintiff alleges that in October, 1830, he put in the defendant’s hands, as his attorney at law, for collection,.a note 00 one L. Johnson, for six hundred and forty dollars, bearing interest.

<p>APPEAL FROM THE COURT OF THE FIFTH DISTRICT FOR THE PARISH OF LAFAYETTE, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This is an action, by sundry citizens, for the right of way, or passage, having farms in the Prairie Sorel, some distance from the wood, access to which is indispensable to them, for the purpose of getting timber. They allege, that two of their neighbors, (Ursin Patin and Narcisse Begnaud,) reside between them and the woods, and deny them the right of way, to pass over their lands. They pray that the defendants be required to allow them a direct and straight way through their land, with liberty to pass to and from said woods, and to bring timber for the use of their farms.</p> <p>The defendants pleaded the general issue, and expressly deny that the plaintiffs have any claim to such right of way, without first indemnifying them, and paying for all the damages they may sustain,- if the right of way is allowed.</p> <p>The plaintiffs showed, by evidence, that some of them lived six miles from the woods, and have no fire-wood, or fencing, except as they get it from this wood. That they have been in the habit of bringing timber along a road nearly in a direct line, for the use of their farms. This road, ran in pan between the lands of the two defendants, and the last sPr'ng> ihey (defendants,) interrupted this road, by connecting their fences, and cutting a ditch across, thus obstructing . , six or seven arpents in length. Each of them had a separate fence, along this part of the road, before.; and it run on the property of both defendants, equally. There is another road, higher up, which the plaintiffs might travel to these woods, but it is longer; runs across some low grounds, and at some seasons of the year, it is impassable. The principal witness for the plaintiffs, supposes one hundred dollars would cover all the damages which the defendants could sustain, by the road continuing to run where it had been, when shut up by them.</p> <p>The district judge gave judgmenlrequiring the defendants to remove the obstructions placed by them across the road, within thirty days, after (he sum of fifty dollars was tendered to each of them, by the sheriff, and to give to the plaintiffs, the right of way thereon. The defendants appealed.</p> <p>The plaintiffs claim a right of passage and of way, on the estate of the defendants. They have shown, by legal evidence, that this passage is absolutely necessary for them to procure wood and timber from the Prairie Sorel wood common, for the use and working of their farms, which are situated at a considerable distance. Louisiana Code, arts. 660, 670, 695, 698 and 702.</p>

This is an action on a factor’s or commission merchant’s account, for advances in money, and acceptances on a consignment of sugar. The plaintiff, after selling the defendant’s sugar under full powers, to get the best price they could, and allowing all credits, claim a balance of two thousand and sixty-eight dollars and forty-one cents .

This is a suit for the interdiction of the defendant, who is alleged to be subject to a habitual state of madness or insanity, from his childhood, and rendered incapable of taking care of his person, or of administering his estate, which should be administered by a curator after interdiction.

<p>Where the deposition of a witness is not annexed, or fastened to the commission and process verbal, but is enclosed with them in an envelope, sealed and directed to the clerk, it is sufficient.</p> <p>A defendant cannot avail himself of an error in the name of his co-defendant, in a joint judgment against them.</p> <p>A judgment against partners in a sugar estate, must in its form be joint, and against each one, separately, for his proportion.</p> <p>Where (he deposition of a witness is not annexed, or fastened to the commission and process verbal, but is inclosed with them in an envelope, sealed and directed to the clerk, it is sufficient.</p> <p>A defendant cannot avail him self of an error in the name of his co-defendant in a joint judgment against them.</p> <p>A judgment against partners in a sugar estate, must in its form he joint, and against each one separately for liis proportion.</p>

This is an ■ action against the surety in a curator’s bond. The plaintiffs allege that in December, 1834, they obtained a judgment against the curator of the estafe of William’S. Barr, deceased, for three hundred and sixty-seven dollars, with interest. That on the 30th of June, of (hat year, Robert B. Brashear, obtained a prolongation of the curator-ship of said Barr’s estate, with W. Brashear as his surety.

This is an action (o recover twelve arpents of land by forty in depth, situated on the east side of the Bayou Courlableau, in the parish of St. Landry. The plaintiff, William C. Collins, alleges that his father, John Collins, acquired title to the above tract of land by purchase from one Charles Yigé, who by several mesne conveyances acquired it from the original grantee of the Spanish government.

This is an action against the drawer of a bill of exchange. The defendant, at New-Orleans, 12th of May, 1834, drew his draft for one thousand seven hundred and twenty-three dollars and seventy-four cents, on Bemiss, Brashear & Co., of Franklin, in the parish of St. Mary, payable the 1st of November following, to the order of John B. Bemiss, and by him endorsed.

The plaintiff, who is the widow of Julien Baras, deceased, presented his last will and testament for probate; and prayed that she be put in possession of all his estate, as instituted r r . i .11 heir, according to the provisions of said will. The heirs at law, of the deceased, intervened and made opposition to the probate of the will, and to its being ordered to be executed ; alleging its nullity on various grounds. 1.

This is an action to evict the defendant, and recover from him one hundred and sixty acres of land, which he hadentered at the land office, and proved up as a settlement right.

MARTIN. This is a suit purporting to be an action of partition.

<p>The exception of quiz temporalia su,nl ad agendum, sunt perpetua ad ex-cipiendum, exists only in favor of the defendant in possession of the property, or right sought to be recovered.</p> <p>So, where a person has delivered possession of property, or ratified a sale, when a minor, he cannot afterwards bring a petitory action, to compel the purchaser to produce his title, and then, by way of exception, ask for the rescission or nullity of the sale, when in fact he was barred by prescription from bringing a direct action of rescission or nullity.</p>

This is an action for the possession of a tract of land, for damages, and for waste committed thereon. The plaintiffs allege they are owners, with a good title, of a tract of six hundred and forty acres, on' the Bayou Teche, and that the defendant has entered thereon, and committed great waste. They pray judgment for damages, and to be quieted in their possession.

<p>APPEAL FROM THE . COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. MARY, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This is a suit on an injunction bond, against Saunders the surety therein ; and against the syndic of the creditors of George Whiting & Co., for the sum of six hundred and seventy-five dollars, for damages occasioned by the wrongful suing out of an injunction. The plaintiffs show that they had a judgment against one William Youngblood, and had seized twenty-seven hogsheads of sugar, which was enjoined, The injunction was dissolved with damages, but the sugar ]je¡ng released the plaintiff’s demand was not paid.</p> <p>On the trial of'the case, there was no counsel appeared for Saunders. He was absent, and his former counsel, one had died and the other was made a judge.</p> <p>It was suggested by Gibbons that the defendant was not represented by counsel. There was, however, no motion for a continuance and the judge proceeded with the case.</p> <p>There was judgment against the defendant, Saunders, for three hundred and seventy-four dollars, witli 10 per cent, per annum interest. The defendant appealed.</p> <p>urged the affirmance of the judgment.</p> <p>briefly adverted to the hardship of the case, caused by the party’s absence, and the trial without counsel. He urged upon the court the necessity of granting relief, and a new trial.</p> <p>2. In order to obtain a reversal of the judgment, and to have the case remanded for a new trial, the counsel offered the affidavit of the defendant Saunders, showing the facts and hardship of his case, in being tried in his absence and without counsel.</p>

This is an action against the syndic’ of the creditors of Whiting & Co., and G. Y. Saunders, as surety, on an injunction bond, enjoining an execution of the plaintiff, which had been levied on a quantity of sugar, the property of his debtor, William Youngblood. The injunction was adjudged to have been wrongfully sued out, and was dissolved with damages-This suit is instituted to recover of the plaintiffs and surety, in the injunction. There was no defence at the trial.

<p>APPEAL FROM THE COURT OF THE FIFTH DISTRICT FOR THE PARISH OF ST. MARY, JUDGE LEWIS, OF THE DISTRICT, PRESIDING.</p> <p>This suit commenced by injunction to stay an order of seizure and sale, which the defendant had obtained, and was proceeding to sell certain mortgaged property.</p> <p>The pleadings on which the parlies joined issue are fully stated in the opinion of the court.</p> <p>On hearing the parties, the district judge dissolved the injunction as having been wrongfully obtained ; condemning the plaintiff and his surities to pay (en per cent, interest on four hundred dollars, the amount of the debt; and ten per cent, damages, and all costs; and that the sheriff proceed as if no injunction had been granted, and execute the order of seizure and sale. The plaintiff appealed.</p> <p>assigned various errors in the proceedings, and urged the reversal of the judgment.</p>

<p>An affidavit for an injunction which states, “ that the facts contained in the petition are true,” is sufficient, if sufficient facts are set out in the petition itself.</p> <p>If the debt is in existence and has accrued, although it be not due at the time of a judgment obtained or contract made in fraud of creditors, it will authorize the complaining creditor to institute'.the revocatory action to annul and set aside such contract or judgment.</p> <p>The attaching creditor, who seehs to annul a judgment or contract made in fraud of creditors, must bring his action within one year from the date of his judgment, and not of that attached.</p> <p>An affidavit for an injunction which states “that the facts petition'1 '"are true,” is sufficient, ij sumcient facts are set out in thepetition itself.</p> <p>If the debt is in existence and has accrued, although it be not due at the time of a judgment obtained or contract made in fraud of creditors, it will authorize the complaining creditor to institute the revocatory action to annul and set aside such contract or judgment.</p> <p>The attacking creditor, who seeks to annul a judgment or contract made in fraud of creditors, must bring his action within one year from the date of his judgment, and not of that attacked.</p>

This case comes up from the decision of the judge a quo, on a rule taken by the plaintiff on the clerk of the District Court, requiring him to show cause why he should not issue an alias fieri facias against the defendants.

This is an action of damages. The plaintiff shows that he contracted with the defendant to build him a house, which ‘was not finished and built in a workmanlike manner ; but on the contrary was so defective, and badly built and covered, i-hat plaintiff had to take off the entire roof from the house.; and cover it with new shingles. The rain beating through the roof, had destroyed the painting, and injured (he furniture. He claims seven hundred dollars in damages.

<p>APPEAL PROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. MARTIN, THE JUDGE OF TnE SEVENTH PRESIDING.</p> <p>This is an action by the legal representatives of John Linton, deceased, against the defendant, as drawer of three drafts, amounting to seven hundred and forty dollars ; which were drawn on, and paid by John Linton, in his lifetime, as is alleged, for the benefit of the defendant.</p> <p>The defendant admitted he drew the draffs as alleged, but averred that he drew them as agent of F. D. Conrad, Esq. He denies that he is liable, in any manner, for the amount of said drafts, inasmuch as he never authorized John Linton, to accept any draft for him.</p> <p>The drafts were drawn in the following form.</p> <p>“New Iberia, 22d June, 1833.”;</p> <p>“ At ninety days sight, please pay to the order of Messrs. H. R. Lee & Co., $150; value received, on account of F. D. Conrad, and oblige your obedient servant.”</p> <p>“S. W. WALSH.”</p> <p>“ To John Linton, Esq. )</p> <p>New-Orleans.” )</p> <p>The evidence showed that the defendant was agent of P. D. Conrad, in the management of a plantation ; who states that he drew the drafts on account of it; but Conrad expressly disavowed his authority to draw the drafts in question. They were paid by Linton, and afterwards put in the hands of Joshua Baker for collection, who states that the defendant. promised to give a draft on the firm of Lastrapes & Desmare, for their amount, but failed to do so. He said he or Mr. Conrad would pay them by the 1st March, 1836. Walsh always said Conrad should have paid them. Witness told him, that Linton’s estate had no obligation from Mr. Conrad, and that they had to look to him for payment, and he to Conrad. The latter said, defendant was to pay them and not him, as they were for the defendant’s individual account.</p> <p>The defendant in a letter, says it is out of his power to give a draft on Lastrapes & Desmare as he expected. He says, “ I shall do all I can to see it paid, either by Mr. Conrad, or myself, between this time and the month of March. Should you insist on suing me, it will only be making costs, without hastening payment of the debt. I consider Mr. Conrad as bound, in his settlement with me of the affairs of Parc Perdu plantation, for all the drafts I gave, and were accepted by Mr. Linton, or none of them.”</p> <p>There was judgment for the defendant, and the plaintiffs appealed.</p> <p>showed that during the progress of the trial in the lower court, the defendant offered as eviáence the depositions of Thompson and others, taken under a commission dated 25th July, 1837; to the admissibility of which the plaintiff, by his attorney, objected, and filed a bill of exceptions, the ground of which objection is :—</p> <p>That the commission was ordered to be returned without delay, instead of specifying a particular day; See Code of Practice, 439; 8 Martin, N. S., 450.</p> <p>2. That proof of agency devolved on the party claiming the right, and having failed to establish his legal authority to draw said drafts, he became personally liable for their payment. 4 Martin, N. S., 528, 502; 5 Idem,., 138 ; 2 LovAsiana Reports, 244; 6. Idem., 47; Civil Code, 2971, 2982.</p> <p>insisted that, by the evidence and declarations of the defendant, he was not persona (these drafts. And his promises only go would see the drafts paid : But he always sá^Mr. Conrad[ was liable, and not him. They were for, ¡ account.</p>

This is an action for damages, in which the plaintiff seeks to recover the value of a slave, which he alleges was killed, or his death caused by the conduct of the defendants.

ArPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE FAIRISH OF ST. MARTIN, THE JUDGE OF THE SIXTH PRESIDING, ', This is an opposition to the tableau of distribution, filed by tfie syndic of the creditors of Edward Le Blanc, the ceding debtor. ' On the 23d of May, 1823, Edward Le Blanc was appointed dative tutor to Modeste Le Blanc, the opponent in this case, and gave a special mortgage on a plantation and four slaves to secure the payment of the sum of one thousand four…

<p>Judgment creditors of an estate in the course of administration, cannot tali\e out execution against the administrator, without first notifying such judgment to him, that he may show he has no funds to satisfy and pay it. ' ^</p> <p>Creditors having judgments against an estate, have it in their power, at any time, to compel the administrator to account, and show the true state tbf the funds. 1</p> <p>Judgment creditors of an estate in the course of administration, cannot take out executionagainst the administrator, without first notifying such judgment to him, that he may show he has no funds to satisfy and pay it.</p> <p>Creditors having judgments against an estate have it in their power at any time, to compel the administrator to account and show the true state of the funds.</p>

IpPFEAD FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. MARY, THE JUDGE OF THE DISTRICT PRESIDING. ' This is a suit on a promissory note.

<p>APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF LA FAYETTE, THE JUDGE OF THE DISTRICT PRESIDING.</p> <p>This is an aclion by the plaintiff, as agent of Don Louis Thibodeaux, to recover from the defendant, Pierre Paul Thibodeaux, the amount of a note and interest, which, it is alleged, Don Louis signed, with the defendant as his surety, io Thomas Berard, for seven hundred and thirty-two dollars; and which he has had to pay.</p> <p>The plaintiffclaimed the sum of seven hundred and seventy-nine dollars and ten cents, with ten per cent, interest from the 1st March, 1836.</p> <p>The defendant pleaded a general denial; and averred, that the note sued upon is prescribed by the lapse of five years.</p> <p>The note which the two Thibodeaux’s gave to Berard, is dated the 20th July, 1830, and payable in all the month of March, 1831.</p> <p>In 1834, Berard, in two receipts endorsed on the back of the note, acknowledges to have received three hundred dollars from the defendant. In August, 1835, he commenced suit for the balance. The defendants expressly denied their signatures, which had been signed by making their ordinary marks. In May, 1836, the plaintiff dismissed his suit, on the defendants paying costs.</p> <p>At the foot of this judgment is the following receipt:</p> <p>“Received of the defendant in the above entitled suit, by the hands of A. Mouton, Esq., in notes, the sum of seven hundred and seventy-nine dollars and ten cents, in full satisfaction of the note upon which the present suit is instituted.</p> <p>March 1, 1836.</p> <p>J. BERARD.”</p> <p>J. Berard, the only witness examined, says “ that both the , Thibodeauxs had accounts with his father, and each one set-; tied his account. That Pierre Paul, the present defendant.^ settled his by giving his note for upwards of seven hundred* dollars, and that Don Louis Thibodeaux signed the note in. solido with him. Thinks the note was written by himself? the note in question is not in his hand-writing, but believes is, is a renewal of the first note written by him.” , j</p> <p>No part of the debt due by Don Louis, was included in the: first note written by witness. The debt due by Don Louis,? he gave a separate note for, which he exhibited in court.</p> <p>On this testimony, there was judgment for the amount of the note, with interest from March, 1831, until paid. The defendant appealed.</p> <p>urged the affirmance of the judgment, as clearly authorized by law.</p> <p>strenuously resisted payment* on the ground that there was no evidence tó show that the defendant was really indebted.</p>

This is an action against Andre Martin and Alexander Arcineaux, as joint and several obligors, with one PierreCyprien Arcineaux, on the promissory note of the latter. The plaintiff alleges, that Martin is liable as principal, and A. Arcineaux as security, and prays judgment against them, jointly and severally, for the amount of the note. The defendants severed in their answers. Martin admit- .... ' ted his signature, and pleaded a general denial.

■, This is an action to compel the heirs of Theophile Broussard, among whom his succession was partitioned, to contribute proportionally to make up the loss the plaintiff sustained, in being evicted from a piece of wood-land, which had been set apart as part of her share in the succession. She alleges she has sustained a loss of five hundred dollars thereby.

<p>APPEAL FROM THE COURT OP THE FIFTH DISTRICT, FOR THE PARISH OF St], MARY, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This is an action instituted the 10th April, 1835, by the plaintiffs, to recover from the defendants, Bemiss, Brashear & Co., the amount of anote for the sum of nine hundred and eighty-eight dollars and fifty cents, being the amount of an account for the sale of a carriage and gig, sold by them to said firm, and dated the first May, 1834.</p> <p>The plaintiffs allege that they have a privilege on the carriage or its proceeds, which is worth six hundred and seventy-five dollars, but that in November, 1834, Bemiss, one of said firm, and insolvent, attempted to make a transfer and sale of it, on his own account, to one Judson Harman, Milton Johnson, and Josephs. Tarkington, and actually delivered the same to Harman in pursuance thereof.</p> <p>They allege that said sale is null and void, as made without consideration, and in fraud of creditors, to the knowledge of the vendees, and pray that it be annulled, the carriage sequestered, and they allowed the benefit of their privilege.</p> <p>Harman pleaded a general denial, and averred that he purchased the carriage for a valuable consideration, from J. B. Bemiss, and in good faith.</p> <p>On the 21st April, 1836, there was judgment by default made final against the defendants, Bemiss, Brashear & Co., for the amount of their note; and annulling the sale as to Tarkington and Johnson.</p> <p>The case was left open between the plaintiffs and Harman. At this stage of the-proceedings, Dwight and Hartman intervened, and set up claims against the defendants Bemiss, Brashear & Co., alleging that the latter were in insolvent circumstances at the time of the sale of the carriage, and that it is null; that the plaintiffs have no privilege; but having previously instituted suit against the present defendants, they (intervenors) should be preferred. They pray that the vendor’s privilege on said carriage be rejected, and the proceeds of the sale of it held subject to their judgment.</p> <p>To this petition of intervention, the plaintiffs pleaded a general denial; but join in the alleged nullity of the sale to Harman, and .insist on the enforcement of their privilege on the price of the carriage.</p> <p>Upon these pleadings and issues, the parties went to trial.</p> <p>The plaintiffs produced their account of sale of the carriage and a gig, of the 1st May, 1834, amounting to nine hundred and eighty-eight dollars and fifty cents; at the foot of which was the following receipt.</p> <p>“ Received payment by note, payable at four months, with the understanding that if themote is not paid when due, Messrs. Bemiss, Brashear & Co., are at liberty to give a city acceptance, adding interest at six per cent, until paid. ”</p> <p>“M. WALTON & SON.”</p> <p>There were many witnesses examined on both sides, louchjng- the insolvency of Bemiss at the time of making the sale of the carriage to Harman, and also to establish the claims of the intervenors. It was also shown that the intervenors instituted the revocatory action about the same time that the plaintiffs commenced the present suit, and that both suits were brought to the April term, 1835. The intervenors joined in this suit to dispute the plaintiffs’ right of preference.</p> <p>From all the evidence, the district judge decided that the sale of the carriage was null and void ; that the plaintiffs be allowed their privilege on the carriage, or its proceeds, worth four hundred and seventy dollars, against Harman, and the claims of the intervenors were dismissed. Dwight & Hartman, the intervenors appealed.</p> <p>insisted on the affirmance of the judgment. The plaintiffs were entitled toa privilege on the carriage, being the vendors, and should be allowed the proceeds in preference to the intervenors.</p> <p>objected to parole evidence being received to show the consideration of the note sued on. Its consideration is not attacked as fraudulent, and the admissions of Bemiss, the insolvent debtor, are not evidence. The intervenors should be allowed and paid by preference, having commenced the revocatory action first.</p>

This is a revocatory action. The plaintiffs, who were creditors of John B. Bemiss, an insolvent debtor, instituted this their revocatory action against him and others, to whom he made sales or transfers of his property, on the eve of insolvency, in fraud of them as bom fide creditors.

This case involves a series of litigated contests, remarkable in the history of our jurisprudence, beginning in the year 1819, coming down to the present time, and still pending.

MARTIN. This suit commenced by injunction, to stay an execution and sale, under a judgment of Joseph Guidry et al vs. Louis Guidry, for one thousand one hundred and forty-two dollars, which the plaintiff alleges is null and void, for the following reasons: 1. He never was cited, or appeared. 2. There was no issue joined by him, or any one authorized to appear for him. 3.

<p>Discrepancies in a notarial act of sale and of protest, which appear to be , . , , , , mere clerical errors, and are immaterial to the decision of the cause, do not affect the validity of such acts.</p> <p>Where certain notes are not paraphed and identified with a mortgage, yet, if upon comparison of dates, and the notes having been executed according to the terms and conditions of the act of sale and mortgage, it is sufficient to support the executory proceeding.</p> <p>A mortgage is in its nature indivisible, and prevails over every part of the immoveable subjected to it, and the mortgaged premises must be sold to satisfy the whole debt it was taken to secure, and not a part thereof.</p> <p>The purchaser of property at sheriff’s sale, is personally bound for the surplus of the adjudication, still secured by special mortgage on the property sold, and holds the surplus subject to the claim of the inferior mortgage creditors; and if he fails to pay when it is demanded of him, he is liable to be proceeded against as a third possessor.</p> <p>So, where a seizing creditor only sues for such instalments of a debt, secured by privilege or special mortgage, as áre due, the property so mortX gaged is to be sold for the whole of the debt, on such terms of credit as, are granted by the original contract; although such creditor does not' show that the subsequent instalments belong to him, or that he is the holder of all the notes included in the contract of mortgage.</p> <p>Discrepancies in a notarial act of sale and of protest, which appear to be mere clerical errors, and are immaterial to the decision of the cause, do not affect the validity of such acts.</p> <p>notes ave noipo{¡tied ™o^fompm-ison of dates, and the noteshaving been executed tevmsan'Icondlof the act of sale and movtgage, ¡tis suffiExecutory proceeding-,</p> <p>¡n ¡ts^Ttmxflnp¡.eya’nse¿rei.eTd evy part of the jected to it, and the .raortsage<i be sold to satisfy it was taken to secure’ and not a pavt thereof.</p> <p>The purchaser of property at sheriff’s sale, is ¡>ersonallybound for the surplus of the adjudication, still secured by special mortgage on the property sold, and holds the surplus subject to the claim of the inferior mortgage creditors; and if he fails to pay when it is demanded of him, he is liable to be proceeded against as a third possessor.</p> <p>So, where ?a seizing creditor only sues for such instalments of a debt, secured by privilege or special mortgage, as are due, the property so mortgaged is to be sold for the whole of the debt, on such terms of credit asare granted by the original contract; although such creditor does not show that the subsequent instalments belong to him, or that he is the holder of all the notes included in the contract ofmort gage*</p>

APfEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RAPIDES, JUDGE KING OF THE FIFTH PRESIDING. This is an action on a bail bond. The plaintiffs sued out a writ of arrest against one P. W. Robert, their debtor, who gave bond with the defendant as security, conditioned to appear at the next term of the coutt, or satisfy any judgment which may be obtained against him.

This is an action to recover from the defendant Robert, a negro woman named Lavinia and her child, which the plaintiff alleges he purchased from Gilbert C. Russell, the 3d June, 1832, for the price and sum of seven hundred dollars, and which slaves he alleges are in the hands of the defendant, who refuses to deliver them up. This suit was instituted the 1st April, 1833.

ArPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RAPIDES, JUDGE KING OF THE FIFTH DISTRICT PRESIDING. This is an action for two instalments, of five percent. each, on the defendant’s subscription to the capital slock of the Red River Railroad Company, of three thousand dollars, The amount of subscription demanded is three hundred dollars.

This is an action by the purchaser against the vendor, to recover the sum of five hundred dollars, as (he proportionate diminution of the price, to the proportion of diminution in quantity of a tract of land, sold by the defendant to the plaintiff.

This is an action on a penal bond against the principal and sureties therein, given according to law, on the defendant Thorn’s removing a suit, instituted by the present plaintiffs against him in the District Court of the parish of Rapides, to the United States District Court, holden at Opelousas, on the ground that he was a citizen of Texas.

This is.an action instituted by the plaintiff’s wife, Elizabeth E. Graham, with his consent and assistance, against her tutor to compel him to account and surrender up and deliver over her effects and property.

This is an action instituted in the Court of Probates, by the heirs of Elizabeth C. Graham, deceased, against William Benjamin, administrator of her estate, as is alleged, to compel a settlement of his administration, and that he be required to pay and deliver over to them all the funds and property of the estate of their deceased mother.

This is an action to recover damages from the defendants, for interfering with the plaintiff’s rights, in beeping a ferry across the Ouachita river, at the town of Monroe.

This is an action against the maker and endorser of two promissory notes of the following tenor. $1020. “ Alexandria, 24th December, 1835.” “On the first day of April, 1839, I promise to pay to the order of Archibald P. Williams, the sum of one thousand and twenty dollars, value received, in a tract of 1360 arpents, this day purchased of Girard and Francois Chretien. ” “ JOSIAS CHAMBERS.” (Endorsed) “ Archibald P. Williams.” “ Passé a Vordre de Mr. Jlnloine Mamin, sans…

This is an action against the defendant, as maker of a promissory note, payable to the order of A. P. Williams, and by him endorsed in blank.

This is an action against the defendant, endorser of a bill of exchange, drawn on Thomas Toby & Brother, and by them accepted. The bill was protested at maturity and notice given to the endorser. The defendant pleaded a general denial; and averred that he was not liable, because the plaintiff had released the acceptors, who were first liable.

<p>ArrEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RAPIDES, JUDGE KING OF THE FIFTH PRESIDING.</p> <p>This is an injunction case. Gordon, as the tutor, &c., of the minor heirs of J. L. Lecroix, deceased, obtained a judgment against one William Justice, as principal, and T. J. Wells, the present plaintiff in injunction, for three hundred and seventy-five dollars, on I heir joint promissory, note. Execution issued against the principal, returned “ no property found.” A second execution issued in February, 1839, against Weils, and he obtained an injunction to stay it, on the ground that he had paid the judgment in his draft given to J. B. Scott, clerk of the court, who was authorized to receive it in payment. Gordon the defendant, and who had obtained the judgment, disavowed Scott’s authority to take the draft in his own name. Before issuing the second execution, he wrote a letter to Wells, staling “ that he had requested J. B. Scott, to say, that he would take his draft for the amount of the judgment, rather than issue an execution. But he informs me he has taken your draft payable to himself, at sixty days, which was wholly unauthorized by me and furthermore, he states, “that he has applied the draft to the payment of his own debts, which makes the matter still worse, so that I think it necessary to inform you, that the judgment still remains open against you.” J. M. Wells, sworn, says that Gordon (old witness he had authorized Scott to receive the draft of plaintiff, for the amount of his judgment, but instructed him not to take the draft in his name or to his order, but did not say in whose favor he had directed the draft to be drawn. It was shown, that Wells drew a draft for the amount of the judgment and interest, payable to Scott., who used it.</p> <p>There was judgment perpetuating the injunction, and (he defendant appealed.</p>

This case commenced by injunction. It appears that in June, 1837, John F. Cortes of the commercial firm of Peter Petrovic & Co., composed of Peter Petrovic, John F. Cortes, and John Laplace, purchased ten slaves, in the name of the firm, for the sum of eleven thousand one hundred dollars, and executed a mortgage on nine of said slaves to secure the payment of a note given for their price, amounting to nine thousand two hundred dollars.

APPEAL prom' THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE rARISH OF NATCHITOCHES, THE JUDGE THEREOF PRESIDING. This suit commenced by injunction.

This is an action against the endorsers of a promissory note of two thousand four hundred dollars, signed by Moore & Henderson, payable twelve months afterdate, to the order of Martin, Mears & Co., and of which the branch of the Union Bank, at Natchitoches, alleges it is the holder; that the said note was duly presented for payment, protested for non-payment, and due and legal notice thereof given to the endorsers.

<p>A suit on the bond of a curatrix, against her sureties, to render her personally liable, and recover against them individually, must be instituted in the courts of ordinary jurisdiction.</p> <p>A suit on the bond of a curatrix against her sureties, to render her personally liable, and to recover against them individually, must be instituted in courts of ordinary jurisdiction.</p>

<p>APPEAR FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF CARROLL, JUDGE DAVIS PRESIDING.</p> <p>This is an action against the defendant, for killing the plaintiff’s slave Henry, and to recover his value, estimated at seventeen hundred dollars.</p> <p>This case was before the court at a former term, and remanded for a new trial: See 12 Louisiana Reports, 573.</p> <p>On the return of the cause, it was again tried by a jury. The evidence on the first trial was again read.</p> <p>W. Sutton, sworn, says he saw the boy, Henry, in the field with M‘Corkle’s hands with a butcher knife. Believes there was a quarrel between the boy, Henry, and some of M'Corlcle’s hands. M'Corkle was sent for in a hurry from the house. He came and told the negro (who was making off) to stop. The negro started to run, and about the time he reached the fence, he shot him; heard something said, but does not know what passed between the boy, Henry, and M'Corkle : Says the gun was loaded with small shot; he (witness) loaded the gun, and was forty or fifty yards from M'Corkle when he shot the negro. The cotton in the field was about as high as his head, and was open ; the negro was about twenty yards distant from M'Corkle, and he does not know whether he was on the fence or in the field, when shot. He says he saw him when he died. He did not go with M'Corkle in the field, but went directly after him. He saw the negro running up to the fence ; M£Corkle telling him to stop. The negro had the butcher knife in his hand, when shot.</p> <p>It appeared, also, in evidence, that M£Corlde was overseer for Chambliss, on whose plantation the negro was killed. That the negro had left the plaintiff’s plantation after twelve o’clock, when he had come in and weighed his cotton. Only a lane separated the two plantations. The negro had run away once before. He was found quarrelling with Chambliss’ slaves, and brandishing a butcher knife.</p> <p>Upon the whole evidence, the jury returned a verdict for the defendant. From judgment rendered thereon, the plaintiff appealed.</p> <p>This is an action by the owner of a slave, to recover the value thereof, the slave having been killed by the defendant, without any legal cause. Such killing could only be justified under particular circumstances, to be found in 1 Moreau’s Digest, page 108, section 32, and page 109, section 35 ; and there is no evidence on record, to show that the defendant had brought himself within the provisions of those statutes.</p> <p>submitted the case after a few explanatory remarks, relying on the evidence supporting the verdict of the jury.</p>

This suit was originally instituted against the makers and endorser of a promissory note secured by mortgage. The mortgage appears to have been- executed alone by the endorser, Glasscock. The plaintiff alleges (hat the note remains unpaid, and he prays judgment with mortgage, and that the mortgaged properly be sold to satisfy his judgment. The defendant, Glasscock, admitted his endorsement, but denied every other allegation in the petition.

This is an action on a promissory note, signed- “Ives, Henry & Parham, by J. C. Henry,” for two hundred and fifty dollars, and also, an account annexed, against Parham, for sixty dollars and fifty cents. The defendant denied his liability to pay the note, averring, that Henry had no authority to sign his name, and also denies, that this debt is included in an agreement he came under to pay the plantation debts.

<p>APPEAL FROM TIIE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RAPIDES, JUDGE KING OF THE FIFTH PRESIDING.</p> <p>This is a suit instituted by H. Erskine, Hugh Lynch, H. Robei tson, and the legal representatives of Robert B. Menniss, deceased, heretofore trading under the firm of Menniss, Lynch & Co., against the defendant on his promissory note.</p> <p>The defendant excepted to the petition, on the ground that one of the representatives of Menniss was a minor. The exceptions were overruled, and there was judgment for the plaintiffs, from which the defendant appealed.</p> <p>Both the appeal and appeal bond, were taken against Hugh Lynch & Co.</p> <p>moved to dismiss the appeal for want of a proper appeal bond, or one given to the proper persons as appellees.</p>

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF NATCHITOCHES, JUDGE KING OF THE FIFTH DISTRICT PRESIDING.</p> <p>The plaintiff sues for the price of a slave, which he sold to the defendant for the sum of one thousand five hundred and ten dollars, by public act, dated the 15th September, 1838, in which the defendant bound himself to take up a note of the petitioner to one Daniel Murphy of New-Orleans, of the same amount, and which he had given for the purchase of this same slave, on the 28th February, 1837.</p> <p>The plaintiff annexes both notes and acts of sale to the petition, and alleges that the defendant refuses to pay him the said sum, although amicably demanded. He prays judgement for the amount of his demand, and that the slave, Isaac, be seized and sold to satisfy the same.</p> <p>The defendant pleaded a general denial, and averred that the plaintiff was indebted to him, in the sum of one thousand six hundred dollars, by promissory note, which he pleads in compensation ; and prays that it be recognized, and that he havejudgment over against the plaintiff for this or such other sum as may be found due ; and for a trial by jury.</p> <p>Upon these pleadings and issues the parties went to trial. The judge overruled (he prayer for a jury, on the ground that the suit was on an obligation which had ceased to be conditional, and there was no affidavit annexed. The defendant’s counsel took his bill of exceptions.</p> <p>The act of sale of the slave from plaintiff to defendant, has the following clause:</p> <p>“The above sale is made for and in consideration of the sum of one thousand five hundred and len dollars, foi which the purchaser hereby binds himself, his heirs, &c., to take up and pay a certain promissory note for the like sum, signed by the said Mahle, payable six months after date, to the order of Thomas H. Airy & Co., endorsed by them and Michael Colgan & Company, which note bears date the 27th day of February, 1837, and is negotiable at, the City Bank, &c., and was given for the consideration of the sale of said slave, from Daniel Murphy to the present vendor.”</p> <p>There was judgment for the plaintiff, for the amount of his demand ; also, allowing the defendant credit fór thirty-three dollars, with interest, in compensation of the costs of suit.</p> <p>insisted on the affirmance of the judgment as a delay case, and with damages.</p> <p>submitted the case on written points, urging, in substance, that the suit is upon .a contract which coniained a condition which had ,not happened, and that until then, the plaintiff had no cause of action, and that the judgment should be reversed.</p>

This is an action against the endorser of a promissory note, for six hundred and eighty-nine dollars and ninety-two cents, signed by Spencer Griffin, and made payable to the order of V. F. Cotton. Flint was the only endorser that made defence. He pleaded the general issue, and there was judgment against him in solido, from which he appealed. insisted that the appeal was frivolous and taken for delay, and that the judgment should be affirmed, with damages.

This is an action of slander, for slanderous words charged to have been spoken by the defendant, maliciously and with a view to slander, defame and injure the plaintiff in his good name and character. The plaintiff alleges that he has sus(ained great injury in consequence of this slander, and prays judgment for twenty thousand dollars in damages, and a trial by jury.

<p>An order of seizure and sale is so far a judgment as to authorize an appeal; but it is not a judgment in the true and legal sense of the term.</p> <p>So, the granting an order of seizure and sale does not prevent the prescription of five or ten years from running against the note and debt on which it is founded.</p> <p>A deed of mortgage executed before a justice of the peace, will not authorize an order of seizure, as that officer is wholly unauthorized to pass such acts.</p> <p>An order of seizure and sale is so far a judgment as to-authorize an appeal; but it is not a judgment in the true and legal sense of the term.</p> <p>. So>the srant; lng an order of seizure and sale fhepreseriptfon of fiv? or ,en years irom running against the "vhfchnd ubt °fs founded-</p>

An affidavit for a trial by jury, in an action on a monied obligation, where a plea of compensation and reconvention is set up, is insufficient under the act of 20th March, 1839, “ amending the Code of Practice,” when the facts stated do not clearly show they would affect the plaintiff’s right of recovery. The defendant, to obtain a trial by jury, when sued on his note or monied obligation, must swear to all the allegations in his plea or answer.

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, POR THE PARISH OF ■NATCHITOCHES, JUDGE KING OF THE FIFTH PRESIDING.</p> <p>This isa petitory action. The plaintiff alleges that he is the rightful owner of a tract of land, containing six hundred and forty acres, situated on that part of Red River called Old River; the title to which tract was confirmed to one Jean Lassoure, by act of congress, bearing date 5th February, 1825, and has now passed to him by a regular chain of mesne conveyances. That the defendant has taken possession without title, and continues to hold it illegally, and against his just claim and rights.</p> <p>The defendant pleaded a general denial. That if the plaintiff had any title, it was false and fraudulent, and did not cover the locus in quo. He claims five hundred dollars as damages, in compensation and reconvention. There was an order to have the land accurately surveyed, and a diagram made thereof.</p> <p>Under these pleadings and issues the trial progressed before the court and a jury. The plaintiff offered evidence to prove his title to the land ; .and for this purpose offered the sheriff’s deed of sale, which was objected to by defendant’s counsel, because it appeared by the records of the suit, in pursuance of which it had been sold, that the land or property had not been duly advertised before sale, during the time prescribed by law, and that the irregularity was not cured by the monition law of 1834. The court sustained the objection, and the plaintiff excepted to its opinion.</p> <p>Before closing his evidence, the plaintiff moved for leave to take a non-suit, which was denied, the court being of opinion, that the defendant having plead a demand in compensation, the plaintiff could not discontinue. To this decision, the plaintiff took his bill of exceptions.</p> <p>There was judgment for the defendant, quieting him in his title to the land in question. Thé plaintiff appealed.</p> <p>urged the reversal of the judgmenl. They showed, that even if the deed was defective, yet it was in due form, and must be admitted in evidence. It is not so defective as to be a nullity, and, therefore, cannot be disregarded. The objection goes more to the effect than its admissibility.</p> <p>insisted that the rejection of the sheriff’s deed was properly decided, because it was shown to be defective on its face, and conferred no title : 8 Martin, N. S., 526.</p> <p>2. The sheriff’s deed in question, is declared by law to have no manner of effect in transferring property. In this respect, and in legal contemplation, it does not differ from an unsigned or unproved deed. The latter is just as good a title to property as the former. ' Both are equally defective. Why, then, should a court err, in rejecting one, when it is permitted to reject the other 1 It seems to me to be the peculiar province of the court, to decide what is legal evidence of title to go to the jury. This deed is a nullity upon its very face, and as such, wholly incapable of transferring properly. This point was conceded, I believe, in argument, but if not, it is easy to establish it from the decisions of the court. If such be the fact, then, and it cannot be questioned, it would have been a very useless thing to permit it to go to the jury, and it would now be equally as useless to remand the case, for the purpose of allowing a nullity to go before the jury. The law surely cannot require so vain a thing as this. As to the effect of informalities in judicial sales. See 9 Louisiana Reports, 421; 4 Idem., 150 and 207 ; 3 Idem., 421 ; 8 Martin, N. S., 246; 7 Idem., 185 ; 11 Martin, 610 and 615.</p>

This is an action against O’Neal as maker, and De Russy, William Long and John Tucker, as endorsers of a promissory note. O’Neal and De Russy, confessed judgment in solido ; and there was judgment by default, made final against Long and Tucker. Long appealed. The protest and notices to the endorsers, are all the evidence adduced by the plaintiff.

<p>The letter of law may be disregarded with the honest intention of seeking its spirit when it leads to an absurd conclusion, and the judge is bound to recede from the letter until he arrives at a reasonable eonelusion.</p> <p>The article 391 of the Code of Practice, provides that “one may intervene either before or after issue joined, provided the intervention do not retard the principal suit; yet time must be allowed to cite the party against whom it is directed, and the same delays, to answer or respond to interrogatories, given as in ordinary suits.</p> <p>So, where the plaintiff has treated the intervening parties as properly in court, he must allow them the usual delays to bring in the answers of all the necessary parties.</p> <p>The letter of the regarded ^wUh the honest intenits” spu-ue\vhen sunfcoVciusion" and the judge is from the letter atnla reasonable conclusion.</p> <p>The article 39t of the Code of Practice, provides that <‘one either befoVíor after issue join-intervention do principa*' suit"; allowed "to^iie the party against rected, the same or^*respóndate interrogatories, given, as mordínary suits.</p> <p>So where the piaintiffhastreated the intervening parties as courtT'he must usual delays*to bring intimannecessary* paríies-</p>

This is an action against the principal and surety, on their obligation for five hundred and seventy dollars, given to take up a note for about this sum, due and given by the present plaintiff’s, and which had been transferred. The notes were suffered to be protested, and this suit was instituted on the note or obligation given to secure their payment. The defendants to the suit pleaded a general denial. The following is the note sued on.

This is an action by the surviving wife, against ti istrator of her deceased husband’s estate, to reco^ of two thousand five hundred dollars, the amt donation propter nuptias, made in their marriage passed before a justice of the peace, the 21st Nover She alleges, she has a right to take out of any succession of her deceased husband this sum, wfiteh she^ demands from the administrator.

AI*PEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OP CARROLL, JUDGE DAVIS PRESIDING. This is an injunction suit. The plaintiff alleges that the sheriff has seized and advertised his land and improvements for sale, under an execution which issued on a judgment of the defendant against him, for five hundred dollars.

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH "OF NATCHITOCHES, THE JUDGE OF THE FIFTH PRESIDING.</p> <p>This is a suit against the maker of a promissory note. The signature was admitted, and a general denial pleaded.</p> <p>The note was payable at the plaintiffs’ domicil, and it was proved the defendant had no funds there to make payment. There ivas judgment against him, and he appealed.</p> <p>The case was submitted to the court.</p>

This is a petitory action, to recover two quarter sections of land, containing three hundred and six acres, more or less, which the plaintiffs allege their ancestor, John Kirkby, purchased or acquired right thereto, from one Henry Slaughter, but that the defendant has taken possession of the greater part of the same, and continues to hold it and claims to be the owner thereof. They pray that they be restored to the possession and quieted in theiv title to all of said land.

This is an action against the payee and endorser of a note. The plaintiff alleges he is a citizen of Mississippi and holder of the note, and that the defendant is a citizen of Concordia, in Louisiana, and the first endorser thereon; and he prays judgment for the amount, the same having been protested and due notice given.

There was judgment against the defendant as surety in a bail bond, given by one Abraham Anding, charged with having committed an assault and battery with the intent to kill. The defendant obtained an appeal, and sent up the record, but in an imperfect state. asked for the dismissal of the appeal.

<p>JVhere a party is condemned as surety on a bail bond, without notice of judgment ni si, or a copy served on him, his remedy is by appeal, and not injunction.</p> <p>If a judgment is so illegal as to be a nullity, an action of nullity and not an injunction should be resorted to.</p> <p>. Where a party surety cnVbaü tócfofludgmení “*\dor a ®?Py his remedy is by f¿junctíomd n0t . If a judgment is so illegal as to be a nullity, an junction, should</p>

This is an opposition to a tableau of distribution of the funds and effects of the estate of William T. Crain, deceased, filed by his administrator. The opponents are workmen and claim a privilege on the balance of the price of a house, in the hands of (he administrator, for work and labor done and materials furnished, as far back as 1835.

This is an action against the principal and two sureties on a promissory note. The plaintiff sues as executrix of Lorenzo A. Griffing, deceased' She alleges that the defendant, Caldwell, is principal, and that Brigham & Downes are sureties, and prays judgment against all of them, in solido., There was final judgment by default against Caldwell; the other two defendants severed in their defence.

This is an action in which the plaintiffs sue, as judgment creditors of one Walter Byrnes, to annul a mortgage given by him, as is alleged in insolvent circumstances, to the defendants, in fraud of other creditors. The plaintiffs show that they obtained judgment against Byrnes, the 12th April, 1839, for thirteen thousand seven hundred and forty-six dollars, which was duly recorded 14th June following.

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING.</p> <p>This is an action against several endorsers of a promissory note. The note was executed in Alexandria, the 10th June, 1837, and made payable to the order of Spencer Griffin, at the Union Bank in New-Orleans. It was protested at maturity for non-payment, and notice given to the endorsers residing in Rapides, by notices addressed to them at Alexandria, and put in the post-office at New-Orleans.</p> <p>Griffin alone made defence. He pleaded the general issue, and averred that his endorsement was for accommodation, ■and the note was intended to be negotiated in bank, but was improperly transferred to the plaintiffs.</p> <p>There was judgment against the defendants, and Griffin appealed.</p>

APPEAL PROM THE COURT OP THE SIXTH DISTRICT, POR THE PARISH 0» NATCHITOCHES, THE JUDGE OP THE DISTRICT PRESIDING. This is an action against the maker and endorsers of a note. Hunter the maker, and Bullard first endorser, waived citation, and let judgment go by default, which was made final on the production of the note and protest.

This is an action against the makers of a promissory note. There was judgment by default made final against Coley, on the production of the note and protest, and evidence that he admitted the debt, and the case was continued as to Smith, the partner of Coley. Coley appealed. prayed the affirmance of the judgment, with ten per cent, damages.

• This is an action by the acceptors of a draft against the drawer. The plaintiffs allege that Luman Phelps of the parish of Catahoula, on the 1st January, 1834, drew his draft on them for seven hundred dollars, which was accepted in favor of Fisk, Watt & Co., payable sixty days after date, and that the drawer had no funds in the hands of the drawees, but was accepted purely for the accommodation of the drawer.

<p>Where the bill and protest are produced in evidence without objection, it will be deemed sufficient proof of the drawer’s signature, to authorize judgment against him, as endorser of his own bill.</p> <p>Where a bill was accepted but not paid, it is no defence, in an action against the drawer, that it is not proved he had no funds in the hands of the acceptor.</p> <p>Where tho notary sends notice of protest to a particular post-office, specifying it by name, it will be sufficient, if it is the nearest to the residence of the party, without stating in what parish it is situated.</p> <p>Where the notary states he “ demanded payment of the draft at the counting-house of the acceptor,” it is sufficient, without saying the '■'■draft was presented and payment thereof demanded.”</p> <p>Where the notary sends notice of protest to a particular post-office, specifying it by name, it will be sufficient, if it is the nearest to the residence of the party, without stating in what parish it is situated.</p> <p>Where the notary states he “ aemandedpayment of the draft at the counting-house of the acceptor,” it is sufficient, without saying “ the draft was presented and payment thereof demanded.”</p>

This is an action against the maker of a promissory note. Two interrogatories were propounded to the defendant. 1st, Did he sign the note ; and 2d, was not payment demanded ? There was no answers or defence, and judgment by default being made final, the defendant appealed.

This is an action against the defendant, as endorser'of a promissory note. The plaintiffs allege that the note was presented for payment at maturity, where it was made payable, and protested for non-payment, and due notice given to the endorsers. The defendant admitted his signature, but denied all the other allegations in the petition.

<p>ArrEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING.</p> <p>This is an action against the maker and endorsers of a a promissory note. The maker and first endorser made no defence. Flint, the second endorser, pleaded the general issue</p> <p>The plaintiffs offered in evidence the note and protest, with proof of the signatures to the note.</p> <p>The notary certified that he deposited notices of protest to E. H. Flint, addressed to him at his domicil near Alexandria, and to Messrs. Thomas and E. H. Flint, at their domicil near Alexandria, as executors of M. P. Flint, deceased.</p> <p>There was judgment against the defendants, and Flint alone appealed.</p>

<p>Damages as for a frivolous appeal, will not be allowed on the affirmance of judgment dissolving an injunction, which already gives ten per cent, interest, and twenty per cent, damages.</p>

ArPEAD FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF CONCORDIA, JUDGE DAVIS PRESIDING.

In this case, Lucy Hudson, widow and administratrix of the estate of J. J. Filhiol, deceased, rendered her account as she alleges, of moneys paid out for the estate, of her own funds, amounting to five hundred and twenty-two dollars, and for which she prays judgment with interest, against the estate. She died and Hempkin was appointed her administrator.

This is an action against the defendant as maker of three promissory notes, payable to and endorsed by B. G-. Tenny, Esq., and secured by mortgage on a plantation and slaves, in the parish of Madison. The plaintiff shows that there has been several payments made and credits given to the defendant, but that there is a balance of five thousand seven hundred and sixty dollars yet due, for the payment of which, he prays an order of seizure and sale against the mortgaged property.

<p>APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF NATCHITOCHES, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>This case- commenced by injunction, to stay an order of seizure and sale. The plaintiffs’ allege, that at the probate sale of the estates of Perot and wife, they purchased of the defendant, as administrator of said estates, a tract of land containing about two hundred and twenty arpents, more or less, with definite boundaries, for the sum of eight thousand eight hundred dollars, for which they gave their notes with mortgage. The land was appraised at forty dollars per arpent. That they have since ascertained that the land falls short of the quantity sixy arpents, which is a diminution of more than one twentieth. That the defendant has taken out an order of seizure and sale to enforce payment of the whole price: wherefore, they pray that an injunction be granted to stay said order of seizure, and that they have judgment ¿¡mjjjjgfjjfjg pr0 raia ¿fog pnce 0f said land, for the quantity of sixty arpents, which at the price of estimation at the sale amounts to two thousand four hundred dollars.</p> <p>The defendant, moved to dissolve the injunction on the face of the proceedings, as having wrongfully issued ; the grounds and oath on which it was granted being insufficient in law; and for answer, he says, the land was sold by distinct and well known boundaries. The price of the entire tract was eight thousand eight hundred dollars, and not forty dollars per arpent, and that the plaintiffs well knew the land and the number of arpents contained within the boundaries, previous to and at the time of sale. Wherefore, he prays that the injunction be dissolved, with damages. The pro-cos verbal of sale, and the description of the land and all the titles were produced ; as also, a diagram and survey of the same.</p> <p>The boundaries and description of 'the tract of land, are given in the opinion of this.court.</p> <p>There was judgment dissolving the injunction, with two hundred and fifty dollars special damagss ; and ten per cent, damages on the amount enjoined, and the order of seizure was directed to proceed. The plaintiffs appealed.</p>

<p>APPEAL. FROM HIE COURT OF HIE NINTH DISTRICT, FOR THE PARISH OP CONCORDIA, JUDGE DAVIS PRESIDING.</p> <p>This is a redhibitory action., The plaintiff alleges that' he purchased' five slaves from the defendant, for the price of five thousand dollars, for which he gave his note at twelve months for five thousand five hundred dollars, including interest.-</p> <p>That the slaves are afflicted with redhibitory defects and maladies, both of body and mind, which render them worthless and useless to him; so much so, that had he known it, he would not have purchased them. That these defects were not discoverable on simple inspection, but were latent, and existed before the sale; and were not declared at the sale, which diseases were and are incurable. He specifies the different slaves and their diseases ; and prays that the sale be cancelled, his note returned, and the surviving slaves taken back; or, if refused, that their price be reduced to a nominal sum; and that he have judgment for damages, for his expenses and trouble about said slaves. Interrogatories, touching the-sale and price of the slaves, their condition and what passed between the parties at the time, were propounded to the vendee, Silas Lillard, and one of the defendants. The answers to interrogatories are stated in the opinion of the court.</p> <p>Lillard admitted he sold the slaves and received the plaintiff’s note, but pleads a general denial in relation to the other allegations. He denies that the slaves were unsound, or in any way afflicted with redhibitory vices. That the loss of the slaves which had died, was occasioned by the plaintiff’s cruelty ; and that all the slaves named in the act of sale, were, at the time, sound in body and mind, except what, is excepted and set forth in the act of sale itself.</p> <p>There was a verdict and judgment for the plaintiff, cancel-ling the sale, and for returning the sum of five thousand five hundred dollars, after deducting four hundred and fifty dollars, the hire of the slaves; and that the three surviving slaves be returned. The defendant appealed.</p>

This is an action against, the defendant, as one of several obligors in a promissory note of five thousand four hundred and twenty-eight dollars and sixty-five cents, alleged to be liable in solido. The suit commenced by attachment. The note was executed in Vicksburg, and (he attachment sued out in the parish of Madison, in this state.

This case was formerly before this court, and remanded to inquire into the fact of the existence of the executorship, at the time of his appearance as such in this case. See 12 Louisiana Reports, 613. The judge of probates decided, after hearing the evidence, that Isaac T. Preston was not executor of James Brown, deceased, at the time of filing his petition of appeal, his term having expired. The executor again appealed.

<p>APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, FOR THE PARISH OF CATAHOULA, THE JUDGE THEREOF PRESIDING.</p> <p>•This is an action against the defendants as joint and several obligors in a promissory note; they with one S. W. M'CIure having all signed. The note is payable to the order of the plaintiffs at Harrisonburg, in the parish of Catahoula, where the defendants reside.</p> <p>The defendants failed to put in any' answer; but at the trial filed an exception by counsel, averring that they had not been legally cited or served with a true copy of the petition.</p> <p>They offered the clerk and sheriff to show that the paper purporting to be a copy, was the only copy of the petition served on Dosson, and that it was not a true copy. The testimony was refused and the defendants’ counsel excepted to the opinion of the court.</p> <p>This copy differs from the original petition in this: The latter reads “ that the said note has often been demanded of the said defendants [at Harrisonburg, and of the defendants at other places and times.”] The copy reads, “that said note has often been demanded of the said defendants [personally, and at other places and times.”]</p> <p>There was judgment against both defendants, and they appealed.</p> <p>The clerk certifies that the record contains all the documents on file and proceedings in the case, but omits that it contains all the evidence adduced.</p>

This suit was for a tract of land, alleged to have been wrongfully taken possession of by the defendant. The plaintiff had judgment decreeing her the land, and one thousand ■six hundred dollars, for the use of it, and the defendant ‘appealed. By agreement of counsel and consent filed, the judgment jn this case was reversed, and the cause remanded for a new trial, the appellees paying the costs of the appeal.

This case comes up before the court on an opposition of one John W. Bailey, charging the defendant with fraud, in relation to his creditors, and denying him the benefit of the insolvent laws. The opponent shows that he had obtained a judgment against Campbell, the defendant in this opposition, and was proceeding to sell property, when, on the 14th August, 1838, he was stopped by the surrender of the insolvent’s .property to his creditors.

This case commenced in the probate court, in the nature of an action to compel a resale of certain property of the estate of the late Sterling G-. Bray, deceased. The plaintiff shows that she is dative testamentary executrix of her decease ed husband’s estate, and that a sale of a large amount of property was made about the 30th March, 1838, and purchased by the defendant, J. A. Bray, who refuses to comply (with the terms of sale, or give his notes as he was bound to do.

This is an action, to recover from the defendant the price of a plantation and slaves, sold by Harrison and wife, as long ago as the year 1826. This case has already been before this court: See 6 Louisiana Reports, 80. It was remanded for a new trial, with directions to submit the matters in contest to auditors, to make out and state an account between the parties. Three auditors were accordingly appointed.

This is an action on a promissory note, signed by defendant, Bowmar, for four thousand dollars, in which the plaintiff prayed for judgment; and also for an injunction to arrest an order of seizure and sale, obtained by Charles S. Abercrombie, of Natchez, against all the property of Bowmar, on his mortgage, to secure the sum of ten thousand one hundred and thirty-five dollars.

This is an action to annul a mortgage executed by the defendant Bowmar to Abercrombie, to secure the sum of ten thousand one hundred and thirty-five dollars, and which the plaintiffs allege was given by the mortgagor when he was in insolvent circumstances or on the eve of insolvency, to the knowledge of the mortgagee, for the purpose of giving an unjust preference of one creditor over others, and especially the plaintiffs.

This is an action against the defendants as makers of a promissory note. The note sued on is dated at Moscow, (Tennessee,) February 16th, 1837, and payable twelve months after date, to the order of the plaintiffs, for one thousand and twenty-eight dollars and seventy-six cents, and signed Cloman § Harrell. Cloman was a resident of the parish where suit was brought, and Harrell an absentee, to whom a curator ad hoc was appointed.

<p>APPEAL FROM THE COURT OF THE SEVENTH DISTRICT, FOR THE PARISH. O? OUACHITA.</p> <p>This is an action for the rescission of the sale of a tract of land, on account of lesion beyond moiety. The plaintiff alleges he sold a tract of two thousand, acres of land, situated in the parish of Ouachita, to the defendant, Flint, for the ... . . . , , . .. sum. and price of one thousand two hundred and seventy dollars, when, in fact, it was worth ten thousand dollars, and that he was imposed on, and induced by said Flint to take this small price, when the latter knew, at the same time, it was worth more than double the sum he gave; and that in consequence, there is lesion beyond moiety, which entitles him to a rescission of the sale and restitution of the property. He further alleges, he has tendered the price he received to Flint, and demanded the restitution of the property, but the latter refuses to take it and return him his land, or to make up the difference of price between the sum paid and that which the land is really worth ; and still persists in holding and retaining said property, contrary to good faith and equity, and to his great damage. Wherefore, he prays that the sale be cancelled, the land reconveyed, or that the defendant make up and pay him the difference in price, between the real value and that which he gave for the land.</p> <p>In an amended petition, the plaintiff alleges that the defendant, Flint, to avoid this action, made a sale or retrocession of this land to D. W. Cox, of Philadelphia, to whom it originally belonged. He prays that Cox be cited, made a party, and that he have judgment against both for the demand set up in his original petition. He also required that Flint be ruled to answer interrogatories touching the price and payments for the land.</p> <p>The defendants severed in their defence. Flint denied that he was suable in the parish of Ouachita, his domicil being in the parish of Rapides. He avers he had sold the land in question, by authentic act recorded in the parish of Ouachita before suit, and the court cannot retain jurisdiction as to him.,</p> <p>Cox denied that he was in any way liable for fraud or lesion, between his vendor and the plaintiff; that he purchased before this suit, and objects to being cumulated in the same action with his co-defendant, because there is no legal connection between them. He also pleads the general issue, and sets up various matters in defence.</p> <p>The sale in question was made without warranty, for one thousand two hundred and seventy dollars; the plaintiff having purchased the premises at á sale for taxes, for two hundred and seventy dollars, a short time before selling to Flint.</p> <p>There was several bills of exceptions taken during the progress of the trial, in relation to the rejection of evidence offered, to show the nature of the plaintiffs title and claim, and its value at the time of the sale to the defendant, Flint; and also to the charge of the judge, which are noticed in the opinion of the court.</p> <p>The Cciilse' was submitted to a jury, on all the evidence, undef á’.c&al'gV-from -the judge, which was excepted to, instructing the jury thajfthey must find the intrinsic value of the land ’’afthe ti.me df1 the sale, and to ascertain if it was worth more than'clouBle the price which it was sold at; and if so, to find for the plaintiff.</p> <p>The jury refifrhed á verdict, as follows : “We of the jury, find the tract of land in controversy to contain two thousand acres, and that it is worth three dollars per acre ; but find against the plaintiff, as neither of the defendants were put in delay before the institution of this suit.” ■</p> <p>Upon this verdict there was judgment rendered in favor of .the defendants, and the plaintiff appealed.</p> <p>the.defendants cannot, in an action like this, object to the plaintiff’s title, when they claim under it; and it was not necessary to put the defendants in morá before bringing suit, when they refuse to restore the land and receive back what they had paid : 4 Louisiana Reports, 40; 8 Idem., 522 ; \\ Idem, 240; I Idem., 193.</p> <p>2. The claim for rescission of a sale on account of lesion beyond moiety, is fully made out, by showing the premises to be worth more than double the price paid for them at the time of sale: Louisiana Code, 1854, 1871, 2567; 5 Louisiana Reports, 382, 360; 2 Idem., 360; 2 Martin, N. S., 73.</p> <p>1. In this case, the plaintiff declared in his petition that he had bought the land at a forced sale for non-repair of roads, under the ordinances of the police jury, as the property of Cox ; the value of such a title was a legitimate inquiry for the court to ascertain whether there was lesion or not, otherwise, actions of this kind might be sustained in every case where land was sold below'its intrinsic valué, on account of the parties knowing there was a defect in, or doubt resting upon the title, and, consequently, as in this sale from the plaintiff to Flint, refuse to warrant the title; the value,of such titles in the country should have been j^rmitled in evidence, which was refused by the com-</p> <p>2. The court correctly instructedmlii^jfry,TFiari!® defendant should have been put inmwmfats a condiUttt^l&cedent to this action, without which l^couMffn^t^^ver.\ln alternative obligations, demand is f</p> <p>3. The court erred in giving an opi|aioi^^S¡®TOunsg/for plaintiff, during the progress of the cau^fiT^oi^vbdX testimony was necessary for him to adduce. ~11~f</p> <p>4. This is a cumulation of actions for lesion and for fraud, and cannot be acted upon together.</p> <p>5. Cox cannot be affected by the non-payment of the price, when the deed by which vendor acquired, expresses payment in hand for the whole price.</p> <p>6. The court below assumed that in suits for lesion, the vendee cannot deny his vendor’s title but from the allegations of plaintiff; in this case testimony is admissible to deny the vendor’s title.</p> <p>7. The verdict of the jury is in the present tense, rendered nearly two years after the sale, and does not find the value of the land at the lime of the sale, which was the proper lime to estimate the value.</p>

This is an action of slander. The plaintiff alleges that the defendant, with a view to defame and injure bis character and good name, and destroy his reputation, did, on the 30th June, 1837, and at other times, maliciously, falsely, and wickedly charge him, (meaning plaintiff,) with being “a rascal, and having sworn falsely,” alleging at the same time, “that he had the documents to show for it.” That these words were uttered and proclaimed in public, on said 30th June, 1837,…

ON A RE-HEARING. The opinion in this case, was first pronounced at the close of the October term, 1839, and the judgment had not become final, at the adjournment of the court. The court then consisted of but three judges, and the presiding judge dissented, and was dissatisfied with the decision. On I he return of the judges from the Western District, judge Strawbridge resigned, who had made the opinion of the court.

<p>In an action to recover the rents and profits in a separate suit after eviction, and the defendant pleads in compensation and reconvention, of the plaintiifs’ demand, the enhanced value of the land of which he was evicted, he cannot afterwards avail himself of the plea of res judicata.</p> <p>Under the Civil Code of 1808, the party evicted, who was even in good faith, was bound to restore the fruits which he reaped, after the demand or institution of suit.</p> <p>Where a party has been in peaceable possession of land without title, in the hope of getting a pre-emption right, he will not be liable to account for the rents and profits previously to the inception of the suit evicting him.</p> <p>The right of a party evicted to be paid the value'of his improvements, rests on the broad principles of equity, that no man ought to enrich himself at the expense of another.</p> <p>In regard to the right of being reimbursed for useful improvements and expenses put on land, by which the property has been made more valuable to the owner, the code or law makes little or no distinction between a possessor in good or bad faith. But the sum to be repaid, can in no case ■exceed the increased value of the property.</p> <p>In an action to recover the rents and profits in seperate suit after eviction, and the defendant pleads in compensation and reconvention, of the plaintiffs’demand, the enhanced value of the land of vv Uicli he was evicted, he cannot after-wards avail himself of the plea of res judicata.</p> <p>Under the Civil Code of 1808, the party evicted, who was even in good faith, was bound whith lie reaped, after the demand or institution of suit,</p> <p>Where a party bus been in peaceable possession of land without title, in the hope of getting a pre-emption right, he will not be liable to account for the rents and profits previously to the inception of the suit evicting him.</p> <p>The right of a be^aid^hívalue of hl? inj* on the broad equityfThat no “hPmseif6at the expense of nnotbi6r</p> <p>In regard to the right of being reimbursed for useful improvements and expenses put on land, by which the property has been made more valuable to the owner, the code or law makes little or no distinction between a possessor in good or bad faith. But the sum to be repaid, exceed the°in-Sm property6 °f</p>

ON A REHEARING. The first opinion in this case was pronounced at October term, 1838. The counsel of the plaintiffs urged a rehearing and the following petition was presented.

This is an action instituted by John Brosnaham, in behalf of his minor child, (Clotilda,) and of Manuel and Francisco Villaverde, the two latter free people of color, as the heirs anti legal representatives of Antonio Villaverde, who died in Pensacola, the 29th August, 1821, to recover from the defendant a tract of land in the parish of Concordia, containing eight hundred superficial arpents.

ON A REHEARING. In this case, a rehearing having been granted, it was again argued at this term. Two important questions are submitted for the solution of the court. 1. Have the plaintiffs shown title in themselves as the heirs and legal representatives of Antonio Villaverde ] 2.

<p>There is no law or usage which authorizes the party on whom a check is drawn, to delay payment until he receives advice of its having been drawn, from the drawer.</p> <p>Where a bank pays a cheek, which has been altered and forged for a much larger amount than the true sum, it will have recourse to the party to whom or for whose benefit it was paid, for the amount of the forgery after its discovery.</p> <p>There is no law or usage which authorizes the party on whom a cheek is drawn, to delay payment until he receives advice of its having been drawn,from the drawer.</p> <p>Where a bank pays a check which has been altered and forged for a much larger amount than the true siim, it will have recourse to the party to whom, or for whose benefit it was paid, for the amount of the forgery, after its discovery.</p>

This is an action against the maker and endorser of a promissory note, duly protested for non-payment. The endorser alone made defence. He pleaded the general issue, and put the plaintiff on strict proof of his demand. In an amended answer he prayed for a trial by jury, which was disallowed, as the application was made since the promulgation of the law requiring a substantial defence to be sworn to in a suit on a monied obligation.

This suit was instituted by attachment the 27th November, 1838, and the petition filed the next day. The plaintiffs allege that they are the holders and owners of four promissory notes for one thousand one hundred and sixty-seven dollars thirty-five cents, signed by Samuel Perry & Co., to the order of and endorsed by James H. M'Clure, negotiable and payable at the Canal Bank, in New-Orleans, and all of them due and protested for non-payment.

This is an action for the rescission of a sale of a plantation in Point Coupée, made to William Smith, for the lum of eighteen thousand dollars, payable by installments, and for which notes drawn, by R. Pearse & Co., to the order of and endorsed by Smith, were given inpayment, and so expressed in the act of sale; the usual mortgage was retained, and the notes marked and identified with the mortgage. The notes were all protested for non-payment at maturity.

This is an action to render the City Bank of New-Orleans liable as an agent, undertaking to collect a note for nine hundred and forty-five dollars, on Michael Colgan, of Natchitoches, which was endorsed. The plaintiff alleges that the note in question was deposited in said bank, in New-Orleans, the 16th December, 1838, for collection, with the specified condition of a charge of one and a half per centum, on the collection.

ArPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY OF NEW-ORLEANS. This is an action on a promissory note given in part payment of the price of a quantity of logwood. The defendant denied being in any manner indebted to the plaintiff, and prayed that the suit be dismissed.

ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT; This is an action on a promissory note, payable at the Citizens’ Bank of Louisiana. The defence was simply a general denial. The note and protest were annexed to the petition, and are both in the record.

This is an action instituted by the widow of the late Dr. M‘Mahan to recover from the defendants the balance due on their notes given for-the purchase of a lot of ground.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action by a woman of color to recover her freedom. The plaintiff alleges she was born free, in the state of Virginia, but that one O. C. Vanlandingham, by some means got possession of her when but a child, conveyed her to Kentucky, and held her in slavery until about November, 1833, when he carried her to Shawneetown, in the state of Illinois, where she resided, with the consent of the said Vanlandingham, until about the 1st February, 1837, when he conveyed her to the parish of Jefferson, in Louisiana, and soon after sold her as a slave to the defendant L. F. Generis, who persists in keeping her in a state of slavery. She further shows, that by the constitution and laws of the state of Illinois, she became emancipated and free while residing there, even if she was a slave when she removed there. That she is entitled to her freedom, and has a right to be set free; wherefore, she prays that she be permitted to sue for her freedom in forma pauperis; that she be taken into the possession of the sheriff until the final decision of this suit; and that she have judgment emancipating her from bondage, and declaring her a free woman, and as such, to exercise the rights of a free woman of color.</p> <p>The defendant pleaded a general denial, and averred that he purchased the plaintiff as a slave for life, from one O. C. Vanlandingham, with full guaranty against all defects of title, or vices of body, &c., for a valuable consideration; and that should he be evicted, the said Vanlandingham, is bound and liable in warranty to restore him one thousand dollars as the price which he paid, together with all costs and expenses, &c. He prays that Vanlandingham be cited in warranty to defend this suit; and that in case he is evicted, that he have judgment over against his warrantor for the price he gave him, with interest and all costs.</p> <p>Vanlandingham appeared by counsel, and pleaded a general denial to the plaintiff’s petition, and denied specially any liability in warranty.</p> <p>Upon these pleadings and issues, the case was tried.</p> <p>The evidence showed among other things, that in 1832, th'e plaintiff left Kentucky with the consent of her master’s overseer, and went to Shawneetow'n, in Illinois, where Vanlandingham, her master, had a store, and where his family resided. She came, it is said, first under the pretext of receiving medical aid from an eminent physician residing there, but lived in her master’s family until 1837, a period of five years, when he brought her to Louisiana, and soon after sold her to the defendant, with warranty and guaranty. The constitution and laws of Illinois prohibit slavery.</p> <p>The district judge decided, that by the constitution and laws of Illinois, the plaintiff became ipso facto free, residing there with the consent of those who held her in slavery, and being once free could not be made a slave.</p> <p>There was judgment declaring the plaintiff a free woman, and decreeing the warrantor to return the price, &c. The defendant and warrantor both appealed.</p> <p>urged the affirmance of the judgment.</p> <p>relied for reversal of judgment on the cases of Frank, f m. c. vs. Powell, 11 Louisiana Reports, 502; U. States vs. Ship Garonne, 10 Peters' Reports.</p> <p>insisted that’ it was clearly shown Vanlandingham bought and owned the plaintiff as a slave, and could not be deprived of her as his property, without his consent. That she went to Illinois without her owner’s consent, so that her residence there could not avail her in obtaining her freedom. Although Vanlandingham had an establishment in Illinois, he was but seldom there, and never resided in that state.</p> <p>2. The owner of the plaintiff liyed in Kentucky until he came to Louisiana, and the plaintiff, at her own request, was allowed by the overseer of Vanlandingham, to go to Shawneetown, to consult with Dr. Posey, about her health. It was purely out of humanity she was permitted to go there. There is no evidence of the intention of her owner that she should go and reside in Shawneetown, which is necessary to give her freedom. See the cases of Berard vs. Berard, 9 Louisiana Reports, 158; Lewis, f. m. c. vs. Cabarrus et al. 7 Idem., 172; 2 Martin, N. S., 409.</p>

<p>A promise to accept, contemplates a specific bill or bills, whether drawn or to be drawn, and|not a general authority to draw to a certain amount, without,any description of the bills. In the latter case it will not be such an implied acceptance or promise to accept, as will bind the drawee.</p> <p>So, a letter of credit, within a reasonable time before or after the date of the bill, describing and promising to accept it, if shown to a person who takes the bill on the faith of the letter, is a virtual acceptance.</p> <p>But where bills are drawn and sold to a third person, on a letter of the drawee, written to the drawer, allowing the latter a limited credit, available on certain conditions, the drawee is under no obligation, express or implied, to the holders to accept the bills.</p> <p>Letters of credit should be addressed to the persons who advance the funds, or buy the bills drawn under it; and then they become the mandatories of the drawee or writer, and have nothing to do with the equities or relations between the drawer and drawee. •</p> <p>A promise tl accept, content-plates a specific bill or bills, OThtobbe draw™ and not a general authority to draw to a certain a^°UdLcription ofthe bills. In the latter case,it will not be such ceptance'or pro-win t0binde£>the drawee. ,</p> <p>* So a letter of credit, within a reasonable time beforeorafterthe date of the bill, describing and promising to accept it, if shown to a person who takes the bill on the faith of the letter,is a virtual acceptance.</p> <p>areUVráwtíe bjind sold to a third person, on a letter of the drawee drawer,allowing itedlilttei available on tionsi'the drawee js under no ob- or implied, to accept the bills, ditshonidbe°addressed to the vanee the funds drawn lheun<ier tiie^ mandatedrawee"'or wr¡ajjh •nandtol’aJ° -with the equities tween'the dráwer and drawee.</p>

This is an action on several promissory notes against Joachim Kohn, L. Millaudon, Frederick Frey, John Slidell, Henry T. Williams, H. G-.

This is a petitory action. The plaintiff alleges he is the owner of a square of ground, number 63, on the original plan of faubourg Annunciation, bounded by Camp, Colisium, Robin and Race streets, and which the' defendants have taken into possession. He prays to be declared the true and legal owner, and put in possession, with damages for the detention of the same.

This is an action against W. C. & D. Vaught, on their note, for six hundred and thirty-six dollars, payable to Walton & Co., in which the steam-boat Walker was attached as being commanded by one, and alleged to be owned in part by both. Dougherty & Co. intervened, and claimed the sum of nine hundred and eight dollars seventy-four cents for supplies furnished said boat at the instance of W. D. Vaught, the captain and part owner, and due them by privilege on the boat.

This is a proceeding against bail, The plaintiffs obtained judgment against George Polled, an absentee, and Frost Thorn, garnishee, which was entered up in the following words: “ It thus appears the garnishee was the mandatory of defendant, for the purpose of paying the debt now sued on, and the money in his hands for that purpose, it is clearly understood and agreed by all parties, must be considered as money of the plaintiffs and not of defendant, the latter having lost…

.This is an action to recover the sum of nine hundred and eighty dollars, as the value of nine hundred and ninety-five dollars in Illinois bank notes, which the defendant had received fiom the plaintiff’s broker and appropriated to the payment of his own account against the broker, who had failed.

This case comes up on an opposition,in the nature of a peremptory exception, to the report of commissioners appointed under the 3d section of the act of 1832, for opening and extending streets in the city of New-Orleans.

<p>APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.</p> <p>This is an action by the plaintiffs as the holders of ten bills of exchange, drawn by A. G. Sloó & Co., on the defendants, Sloo & Byrne, of New-Orleans, drawn and sold to the plaintiffs on the following letter of credit, written by the drawees to the plaintiffs.</p> <p>“New-Orleans, 23d December, 1836.”</p> <p>“Messrs. A. G. Sloo & Co., of Alton, Illinois, are hereby authorized to value on us at such times, and for such sums as may suit their own convenience, to the extent of fifty thousand dollars. Their bills on us for that amount, negotiated through your institution, or any part thereof, shall be duly honored and paid by your obedient servants.</p> <p>SLOO & BYRNE.”</p> <p>“To the cashier of the branch of the )</p> <p>State Bank of Illinois, at Alton.” 5</p> <p>“We do hereby guaranty the punctual payment of any drawn and negotiated upon the faith of the within letter.”</p> <p>“SHIELDS, TURNER & RENSHAW.”</p> <p>“ A. W. & R. M. HAINES.”</p> <p>A. G. Sloo & Co., in the spring of 1837, drew ten bills now in suit on this letter, and sold them to the plaintiffs, which were all duly accepted, payable four months after date and sight, and protested for non-payment at maturity, amounting in the aggregate to thirty-seven thousand six hundred and thirty dollars.</p> <p>The plaintiffs pray judgment against Sloo & Byrne, as acceptors,"and Shields, Turner & Renshaw, and A. W. & R. M. Haines, as guarantors for the amount of these bills, and all damages and costs.</p> <p>The defendants, Sloo <$■ Byrne, excepted to the plaintiffs’ right to maintain this action, because the plaintiffs are not a legally constituted corporation, under the‘constitution and laws of the state of Illinois, and that they cannot maintain this action in their corporate name.</p> <p>2. That the debt sued for, has been satisfied and paid on an execution, and judgment obtained in Illinois, against the principal debtors and drawers, A. G. Sloo & Co.</p> <p>3. That if said debt is not satisfied or fully paid, these respondents are discharged, by the release of A. G. Sloo, in consequence of the act of the plaintiffs, who was the principal member of the firm of A. G. Sloo & Co., and for whose accommodation, principally, they guarantied and accepted the said bills. They pray to be dismissed.</p> <p>Shields, Turner fy Renshaw, excepted to the plaintiffs’ right to sue in their corporate capacity, as not being legally constituted, and unconstitutionally incorporated. They deny all liability as guarantors.</p> <p>Jl. W. <$• R- M. Haines, also excepted to the constitutionality of the plaintiffs as a corporation, and to sue in their corporate name. For answer, they deny all liability as guarantors for want of notice, &c., and by the release of A. G. Sloo, from his liability as drawer and for whose benefit and accommodation the bills were accepted and guarantied. These exceptions were all overruled. A mass of testimony was taken and read on the trial. The plaintiffs instituted suit in Illinois, against A. G. Sloo & Co., soon after the bills in question were drawn and accepted, to wit, in April 1837, including all their liabilities of every character; A. G. Sloo, was absent from the state in New-Orleans. H. M'Clintock his partner, gave a power of attorney to a lawyer, to confess judgment in the name of the firm, and at the May term, 1837, of the circuit court of that state, judgment was rendered by confession against Sloo, and against M‘Clintock, for a large amount, (one hundred and twenty-five thousand dollars,) apparently embracing every liability which they had come under to the plaintiffs, whether due or to become due.</p> <p>A. G. Sloo, on his return to Illinois, disavowed any act or authority to confess judgment for him, and carried this case before the Supreme Court of the state of Illinois, by writ of error, in which the judgment was reversed and vacated as to him.</p> <p>It was'admitted there was no notice given to the guarantors of the acceptance of the bills, or, in fact, that the plaintiffs had accepted, and agreed to take and discount these bills on the faith of the letter of credit.</p> <p>There was judgment against the acceptors for the amount of the bills sued on, and in favor of the guarantors discharging them. The plaintiffs and acceptors appealed.</p>

Eusiis, Potts and Barton, insisted on a reheating in this case, on the ground that the court had mistaken the fact in stating and assuming the hypothesis that the bills sued on were not included in the judgment obtained by the plaintiffs in Illinois, against the drawers, A. G. SIoo & Co. They showed that they were so included, although not at maturity when that judgment was rendered.

This is an action for slander of title and disturbance of possession of the plaintiff, as the owner and possessor of a city lot, by the defendant, who claims to be owner ; exercising acts of ownership over if, by hauling earth and placing it thereon. He prays to be quieted in his title, and that the defendant be enjoined and prohibited from disturbing him in the possession thereof.

This is an action on two promissorynotes executed by the defendant, in the State of Maryland, the 21st October, 1837, payable in one and two years after date, to the order of the plaintiff. The defendant admitted his signature to the notes, but denied that he ever received any consideration therefor. He prays that the suit be dismissed.

<p>Where the answers of a garnishee are not explicit or responsive to the interrogatories, on his failure to make proper answers, the interrogatories will be takenpro confesso, and the garnishee held liable for the defendant’s •debt.</p> <p>explicit or responsive to the interrogatories, makeVrope'/an^ator*gin4ejn be^ taken g?fSsheeanheid defendant’s debt "Where the answers of a garnishee are not</p>

APPEAL PROM THE CITY COURT OP NEW-ORLEANS This is an action on a promissory note' against the maker. He pleaded a general denial, but made no other defence. There was judgment against him, and he appealed. The record comes up without any evidence, and there is no bill of exception, statement of facts, or assignment of error. prayed the affirmance of the judgment, with ten per cent, damages.

This is an action against the defendant as acceptor of a bill of exchange. He pleaded want of names and surnames of plantiffs, and some other matters which were overruled. In answer to the merits, the defendant pleaded the general issue. On the trial, a bill of exception was taken by the defendant’s counsel to the admission of the protest in evidence, for want of the attestation of two witnesses in addition to the signature of the notary.

This is an action against the maker of a promissory note, identified with, ánd secured by mortgage. The plaintiff alleges that the defendant signed said note, payable to the order of, and endorsed by H. Chirane, bearing ten per cent interest per annum. The defendant denies that he subscribed a simple note to the order of Chirane, as it is stated in the petition.

<p>A bank taking a note for collection, becomes the mandatory or agent of the holder or depositor, only ; there is no privity between it and any of the endorsers, or other parties to the note. Its responsibility is only to those who employ it.</p> <p>So, where a note is deposited for collection, and the notary of the bank fails to give notice of protest to the first endorser, who is thereby discharged ; the second endorser who takes it up, has no recourse against the bank.</p> <p>A second endorser wishing to hold the first responsible to him, should give him notice of protest; and for this purpose the law gives him until the next day to notify his prior endorser.</p> <p>a bank taking anoteforeoiiecmandatory or df^OTdepm^tor pri^jy'^eoleen n and any of the otherSparties to responsibility1^ on]y 10 -who employ it.</p> <p>So, where a note is deposited for collection, and the notary of the bank fails to give notice of protest to the first endorser, who is thereby discharged; the second endorser ■who takes it up, has no recourse against the bank.</p> <p>him notice of ■nrofpfif and for this purpose the unTiiS\he next day to notify his pnor endorser. A second endorser wishing to hold the first responsible to him, should give</p>

This is an action on a promissory note signed by the defendant, and payable to M. Perks, and by him endorsed. The note was duly protested for non-payment at maturity, and now judgment is prayed against the defendant, as the maker thereof, with costs of protest, interest and costs of court. The defendant pleaded a general denial.

This is an action against the defendant, as endorser of a promissory note, duly protested. The plaintiff made proof of the signatures of the payee, and also of the defendant as second endorser. There was judgment by default made final, and the defendant appealed. The principal grounds relied on are, that there was no legal service of citation and petition. insisted on the affirmance of the judgment. urged the reversal of the judgment, on the following grounds : 1.

This is an action against the acceptors of a bill of exchange, drawn at Alexandria, Louisiana, 'the 17th December, 1839, by William R. Brown, payable to the order of William H. Kitchen, sixty days after date.

<p>An attorney at law is competent to make the affidavit necessary, (in the absence of his client,) on which to obtain an attachment.</p> <p>An attorney at law is competent to make the affidavit necessary, (in the absence of his client,) on which to obtain an attachment.</p>

This is an action against the makers and endorsers of a promjSsory note duly protested for non-payment. Arthur, one of the defendants, who was arrested, made a sPec'al defence. The others pleaded the general issue. On the trial, defendants’ witnesses were called, and not being present, attachments issued.

This is an action to recover damages for the non-delivery of one hundred thousand bushels of coal, according to the stipulations of a written contract entered into between the parties. The plaintiffs allege and show that they contracted with the defendant, to deliver one hundred thousand bushels of coal in New-Orleans, as soon after the 10th November, 1837, as boats could be procured, and the navigation of the rivers permitted.

This is an action by the parish treasurer, of the Parish of Iberville, to recover from the defendants (he amount of four promissory notes given for the lease of the ferry across the Bayou Plaquemine, at the town of Plaquemine, in the parish of Iberville, by the police jury of said parish, for one year from the 12lh November, 1838.

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, FOR THE PARISH OF PLAQUEMINE, THE JUDGE OF THE SECOND PRESIDING.</p> <p>This is an action against the defendant and his sureties, on their four promissory notes, given for the sale of a ferry across the Bayou Plaquemine, by the city council of said town.</p> <p>The defendants admitted their signatures, but denied that they were bound, because there was a failure of consideration. That their notes were given in error of fact and law, and are void. They expressly aver that these notes were given for the sale of the ferry across Bayou Plaquemine, by order of the city council of Plaquemine, when the same ferry had been sold out to Jean Maillan, by the police jury; that the city council had no right or authority to sell, and consequently, have no right to compel a compliance with said sale. The defendant, Deeaudine, averred that he had sustained damages by the imposition, and prayed that the suit be dismissed; that his notes be cancelled and given up, and that he have judgment in reconvention for four hundred dollars.</p> <p>It was admitted there was a ferry over Bayou Plaquemine on both sides, which had been legally established by the police jury for a great number of years; that it is within the limits of the town of Plaquemine; that the notes sued on, were given for the sale or lease of said ferry on the town side, for ■one year; and that the whole ferry had been sold out and ■leased by the police jury to Maillan.</p> <p>There was judgment for the plaintiffs for '¡-he amount of ■the notes, and the defendants appealed.</p> <p>submitted the case on a written argument.</p>

This is an hypothecary action against the defendant, as third possessor of three lots of ground in the town of Mandeville.

This suit commenced by injunction, and is in the nature of an action of nullity, to set aside a judgment, obtained by Weatherby against the present plaintiff. Wetherby, the former plaintiff, having obtained a judgment against Sparks, while be was absent, residing in NeWOrieans, the latler, on returning to his former residence, rented the execution of this judgment, on the ground that'he had not been legally cited, and had no notice of the proceedings.

This is an action for overseer’s wages. The plaintiff alleges, he entered into a verbal agreement with the agent of Robert Bell, then owner and in possession of a plantation and slaves, in the parish of Iberville, to be employed as overseer on said plantation, for one year from the first of Jan-nary, 1839, at the rate of one thousand dollars a year, to be found his sugar and coffee, and allowed the hire of a negro woman as a field hand, worth ten dollars per month.