Volume 17 — Louisiana Reports

This is an attachment suit. The plaintiff alleges, that D. & J. B. Walker, [2] of Mobile, lately trading under the firm of Walker, Knight & Oo., in New Orleans, are indebted to him in the sum of $1000. That they have a large interest in a cargo of logwood, consigned to J. Roberts & Oo., in New Orleans, which he attaches, and prays judgment for the amount of his claim.

This is an action against the indorser of three checks or drafts drawn at Vicksburg in Mississippi, on the cashier of the Girard Bank in Philadelphia, and “ acceptance waived.” They were indorsed by the payee and the present defendant; and protested at maturity for non-payment. The usual allegation is made of protest and due notice thereof given to the indorser.

This is an action to recover the possession of three promissory notes deposited with a notary and to remain until a competent jndicial tribunal shall decide whether they are to he given to the plaintiff or defendant Ailiex.

Appeae from the court of the first judicial district. This is an action to compel the defendant, Henry Parish, to deliver up a bill of exchange, in his possession and deposited in the Oanal Bank.

<p>Appeal from the court of the fourth district for the parish of Pointe Coupee, the judge of the second district presiding.</p> <p>This is an action against the defendant, Taylor, and Ms vendees and co-defendants Coyle, Falconer, Jontes, Laurans, Hiriart and Sneed, to compel a compliance with the terms and conditions of the will of the late Julien Poydras, which required Ms plantations and the slaves on each to be sold together and the slaves on each, kept, maintained and emancipated thereon under certain regulations, and in a specified manner. The defendant, Taylor, had become the owner of one of these plantations, under the conditions of said will, and had sold several of the slaves attached thereto, to Ms co-defendants, when the plaintiff as one of the heirs and relative of Julien Poydras, instituted this suit, alleging the illegality and nullity of the sales of said slaves, as having been made in contravention of the provisions of said will. He prays that all these sales be annulled, and that the slaves therein mentioned be restored to the plantation from whence they were taken, and there kept and maintained according to the testamentary dispositions of the said Julien Poydras. This case has already been before this court. See 9 La. Reports, 488; and also the case of Poydras v. Mowram, Id. 492, in which the clauses of J. Poydras’s will, drawn in question in these cases, are recited and set forth.</p> <p>In an elaborate opinion of the district judge he came to the concia- [18] sion that the plaintiff ought not to succeed. There was judgment for the defendants, and the plaintiff appealed.</p>

This is an action under the will of the late Julien Poydras, to enforce its provisions and rescind the sale of several slaves belonging to one of the plantations of .the testator, now owned by tho defendant Taylor, who, it is alleged, sold off and separated these slaves from the plantation, contrary to the express provisions of the will of J. Poydras and the conditions under which he purchased the plantation and slaves.

This is an action in the name of the former sheriff of the parish of Orleans, on a judicial bond taken from the purchasers of the steamboat Baltic, sold at sheriff’s sale. The bond was taken and, made payable to him as sheriff, while he held the office, but this suit was instituted since his resignation. The defendants, among other defences, excepted to the right of the plaintiff to sue on the bond; which was overruled.

This is an attachment suit against the goods and effects of an absconding debtor. The plaintiffs show they are creditors of ¥m. R, O. Hays, for merchandise sold and delivered according to a detailed account, and balance due on anote, which are annexed; amounting to $1180.

This is an action by the descendants of the brothers and sisters of André Bernard, living in France, who sue as his heirs and legal representatives, to recover a lot of ground situated in Ohartres-street, New Orleans, and in the possession of the defendant, who claims it as owner.

Ok a rehearing. In this case a rehearing was prayed for on the part of the plaintiff and granted. contended that the sheriff was the proper person to take the bond in question. Buisson was the sheriff, the bond was payable to him as sheriff; he had a right to collect and receive the money on it; hold it subject to the right of the parties litigating about the proceeds and pay over the money to the party entitled to x-eeeive it.

This is an action instituted against the maker and indorsor of a promissory note. The defendants denied that the plaintiffs were the owners of the note, but that it belonged to one Daniel Murphy and was given to him in part payment [26] of the price of certain lots of ground in Lafayette, for which a suit has since been instituted by the heirs of Poultney, and is now pending.

This is an action to recover from the defendant the sum of $244 80, for moneys overdrawn by him as clerk of the plaintiffs, over and above his salary, which they allege was only $1000 per year. The defendant sets up an account against the plaintiffs, charging them at [27] the rate of $125 per month for eight months, amounting to $1000; for which he prays judgment in reconvention.

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an action against the defendants as makers of a note. There was judgment against them (Barnes & Tilghman) in solido. Barnes appealed, considering himself only liable for one half of the debt; it being for a particular partnership.</p> <p>The certificate of the clerk states the “transcript contains all the proceedings, as well as documents filed in the cause,” but does not say it contains all the evidence adduced, <&c.</p> <p>insisted that the defendant Barnes, was only [28] liable for one half the plaintiffs’ demand (if any), because it was only a particular partnership the defendant was concerned in.</p>

This is an action against the defendant, W. M. Gwin, a resident of the [29] State of Mississippi, as the second indorser of a promissory note.

This is an action on a promissory note. The defendant admitted his signature, but averred the note was given for goods unmerchantable, and that the consideration had failed. A supplemental petition was filed; to which the defendant replied, that he admitted his signature but denied all consideration. There was judgment against him and he appealed.

This is an action against the maker of a promissory note. The defendant admitted his signature but averred the consideration had wholly failed. There was no attempt to support the defence by proof, and judgment was rendered in favor of the plaintiffs; hut from the record it does not appear to have been signed by the judge.

<p>Appeal from the court of the first district.</p> <p>This ease commenced by an order of seizure and sale, on a mortgage retained for the price of a slave, evidenced by the defendant’s note.</p> <p>The defendant took a rule to set aside the proceedings, on the ground that no copy of the petition in the Trench .language had been served on him, which was his vernacular tongue. On the trial, the plaintiff obtained leave to amend in this respect, on payment of costs up to this time. He was proceeding with his seizure, when he was arrested by a second rule, to have the order of seizure set aside, on the ground that the costs of the amendment had not been paid. This rule was discharged and the defendant appealed.</p> <p>prayed that the judgment discharging the rule, he affirmed, with ten per cent, damages.</p>

Appear from the court of probates, for the parish and city of blew Orleans. This is an action on a judgment rendered in Virginia against the estate of Henry De Ende, who died during the pendency of said suit.

<p>Appeal solely for delay, and judgment affirmed with tbo maximum of damages. — 3 L. 101, and cases there noted.</p>

This is a petitory action in which the plaintiff seeks to recover a tract of 640 acres of land in the possession of the defendants. He sets up as the basis of his title, a sheriff’s sale, and offered in support of it, the deed of sale made by the sheriff, together with a certified copy of the judgment from the minutes of the parish court of Livingston, on which execution issued and under which the sale was made. The sheriff’s deed is in due and legal form on its face.

<p>Tlio exclusion of warranty in a sale, does not absolve a vendor from the obligation of disclosing the redhibitory vices not apparent — O. C. 2480,2526; 1 M. 150; 6 M. 696; T M. 83; IT L. 9T; 4 R. 155; 6 A. 304.</p> <p>Where tlie seller failed to inform the buyer that the slave was a runaway, it was held sufficient to rescind the sale, although sold without any warranty except as to title.</p>

This is a suit by the indorsee of a note, against the maker. The note is for $600, payable in two years from the 29th June, 1837, with four per cent, interest. The defendant pleaded several matters in defence, and among them, the want of amicable demand. There was judgment in favor of the plaintiff, for the amount of the note, with ftoe per cent, interest, and the defendant appealed.

<p>Appeal from the commercial court New Orleans.</p> <p>This suit commenced by attachment. The defendant, West, is sued on his promissory note, and property attached in the hands of garnishees. A curator ad hoe was appointed to represent the absent defendant, who pleaded a general denial. The garnishees answered, they had nothing in their hands belonging to West, at or since the service of the attachment; hut that they had received 229 bales of cotton from him, 125 bales of which were sold before the attachment, and the remaining 104 bales they were directed to hold subject to the order of Benjamin Odom, which has been sold by his order, and the proceeds remain in their hands to his credit.</p> <p>Odom now intervened and claimed the proceeds of this property.</p> <p>After the cause was thus at issue, on the suggestion of the counsel for the intervenor, that the plaintiff had departed this life, it was ordered that I. W. Smith, Esq., he appointed curator ad hoc to represent the heirs of said plaintiff.</p> <p>In this manner the cause proceeded. The plaintiff had judgment for the amount of his demand against the defendant, and that the property attached be applied in satisfaction, dismissing the petition of intervention. The intervenor appealed.</p>

This is an action of nullity and to stay an execution, which had issued on a judgment obtained hy Oliver Akin in his lifetime against Gaiennié' and Deneufbourg, after the dissolution of their partnership.

<p>Appeal from the .commercial court of Mew Orleans.</p> <p>, This is an hypothecary action on six promissory notes executed by [43] H. Lockett, and payable to the order of E. Erey & Oo., amounting to $3900, with interest, given as the price of certain city lots, with mortgage in favor of the plaintiff, the original vendor, and assumed by the defendants as the vendees of Lockett. Judgment is prayed against them with mortgage and privilege on the lots of ground.</p> <p>The defendants denied their liability to pay the notes sued on, because the consideration, they allege, for which they assumed their payment has failed, inasmuch as it was represented at the time they purchased from Lookerl, that St. John-street, upon which the lots are situated, would be opened immediately, and upon that consideration alone they purchased; that they have been deceived and led into error; the said street not having been opened, which was the only inducement to purchase the lots at the high price they consented to give for them. They pray that the plaintiff’s petition be dismissed.</p> <p>Upon these pleadings and issues the parties went to trial.</p> <p>The evidence consisted principally of the acts of sale of the lots in question from the plaintiff to H. Lockett, Esq., and from him to the defendants, in which they assume the payment of his notes to the plaintiff. On the trial, the deputy city surveyor was produced by the defendants as a witness; and a question propounded by them for him to state at what time St. John-street was opened, &o.; to which the plaintiff’s counsel objected on the ground that the act of sale in which the defendants assumed the payment of the notes contained no condition as to the opening of St. John-street, and it was not competent to form such condition by parol evidence. The witness was also asked if in 1836, St. John-street was not closed, which was also objected to. All the objections were overruled, and the evidence admitted by the judge, with the remark that the plan was part of the act, and the testimony only explains its connection with and bearing on the contract.</p> <p>There was a verdiot and judgment for the plaintiffs, after deducting $750 [44] from the demand, for damages suffered in not opening St. John-street, as expected by the defendants. The defendants appealed.</p> <p>asked that the judgment be so amended as to allow the entire amount of the notes claimed.</p>

This is an action based on a letter of credit. [47] The plaintiff alleges that on the 4th April, 1839, B. A. Gamble, acting in the name and by the authority of the defendants, addressed a letter of credit by which they engaged to accept such drafts as Samuel Armistead might draw on their house between the first of December, 1839, and first of February, 1840, to the extent of $2000.

This case comes before the court on an opposition made by the heirs at law to the application of the executors of Alexander Milne, deceased, for the homologation of their account of administration of his estate. ' On the 9th November, 1839, the executors filed their account, and prayed that it he homologated. ^ The attorney appointed to represent the absent heirs came forward and filed an opposition to said account, on behalf of the absent heirs and next of kin of the…

The plaintiffs had judgment on attachment, against the defendant for the sum of $2126 96, with interest, &c., and appealed. The statement of facts shows that they claim $2814, with interest; and allow a credit of $440, leaving a balance of $2374, without interest’. It is admitted the latter sum is correct, and that the judgment should have been so rendered.

This is an action by the holder against the acceptor of a bill of exchange drawn and made payable at Portland, in the State of Maine. [51] There were various circumstances set out in the defence to show that the acceptor had received no consideration for the draft; that it was drawn, and accepted under certain conditions known to the present holder, which were never fulfilled or complied with.

This is a suit by the payee and holder of a promissory note, signed with the partnership name of the defendants. Charles Tiernan, the liquidating partner of the defendants’ firm, pleaded a general denial, and averred that the partnership was not in any way liable for the note in suit, .because it was not given for the benefit of the concern, but was an individual transaction for the private benefit of one of the partners who then conducted the business of the firm.

<p>An attachment is dissolved on bonding the property attached. The plaintiff then looks to tho bond and not to the property to satisfy his demand. If he fails the bond is discharged.</p> <p>So, a third party claiming the property attached and bonded cannot intervene in the suit between the plaintiff and defendant. Ho must look to tho person in possession of the property.</p>

<p>Either party has a right to interrogate Ins opponent, and the penalty for not answering is that the interrogatories are to he taken pro confesso. — G. P. 849, 350; See 8 A. 272.</p> <p>The party propounding interrogatories has only to obtain the older of court to have them answered. The adverse party is bound to answer at his peril. — lb.; 3 R. 243.</p> <p>"When the answers are to be taken out of the parish, a commission issues and the .party interrogated must give notice of the time and place of answering, so that the person propounding the interrogatories may be present</p> <p>' A commission is necessary to take the answers to interrogatories out of the State, in like manner as for a distant parish in it — 16 L. 282 (I.), and cases there noted.</p> <p>The mere production of a commission is not sufficient to authorize the person to administer an oath and take the answers, as it does not prove he is the' actual person named in the commission and Vho swore the party.</p> <p>A commission from the governor that such a person was a magistrate in 1838, does not establish the fact that he was one in 1840, the time when be acts as suoh.</p> <p>"When a commission is directed to a person by name, no proof of his authority or identity [60] is required, but when directed to any judge or justice of the peace out of the State, it must bo shown that 7ie is such an officer^ at the time he acts, as he purports to be. — £ L. 118, and cases there noted.</p>

Appear from the court of the fourth district, for the parish of Iberville, the judge thereof presiding. This is an hypothecary action against a plantation and certain slaves in the possession of the defendant, as a subsequent or third purchaser.

This is an action against the makers and indorsers of a promissory [65] note. The defendants set up a special defence which is set out in the opinion of the court, and need not be recapitulated. The note was negotiable in its form, signed by J. Whitehead, president, payable “ to the order of Messrs. Ferguson, Parker & Oo.,” and indorsed by them “ pay to Van Pelt & Fowler, or order.

This is an action by Robert Heath, who alleges that he carries on mercantile business under the firm of S. Heath & Oo., and that the defendants are indebted to him in the sum of $2560 49, with costs of protest and interest; being for the amount of their promissory note, executed by Samuel Locke & Oo., payable to the order of S. Heath & Oo., sixty days after the 4th April, 1840.

This is an action on an overseer’s account for the balance due him on his wages. There was no defence, and judgment by default was made final on proof of the plaintiff’s demand. The defendant appealed. prayed the affirKUVOTe of tixo judgment with damages. No eoim-Uaypearod fry tbs defendant.

This is an action against Pierre Laurans as owner, and Stansbury & Tens-field a firm doing business, and lessees of Laurans’s house on the corner of Magazine and Gravier streets, to render the former liable with the latter for their debt due by note to certain builders, which was transferred to the plaintiff. He alleges that Laurans leased his house to the other defendants, who employed Messrs.

This is an action against the surety in an attachment bond taken under the laws and in the State of Mississippi, authorizing attachments to issue for debts not due; and also allowing the defendant in such cases to give a bond with security to pay the debt when it becomes due, and thereby release his property.

This is an action to recover seven slaves of which the plaintiff, Sarah Turner, alleges she is the owner, who were taken from the State of Georgia where she always resided, brought to this State without her knowledge or consent, and in fraud of her lights, and are now in the possession of the defendants who refuse to deliver them up although amicably requested to do so.

<p>Appeal from the court of the second district, for the parish of Ascension, tho judge of the fourth district presiding.</p> <p>This case comes before the court on an opposition to a monition taken out by the plaintiff to have a sheriff’s sale made to him homologated and confirmed.</p> <p>Tho defendant confessed judgment, on the 14th October, 1887, on an account for advances, commissions and supplies furnished, by the firm of J. W. Zacharie & Oo., for $14,927, with ten per cent, interest per annum; eleven thousand dollars of which was secured by mortgage. Execution was stayed for one half until March, 1839; and on the balance until March, 1840. The first half of said judgment not having been paid at the expiration of the delay given, execution issued on the 5th April, 1839, for this half and the sugar plantation of the defendant adjoining the town of Donaldsonville, containing 800 superficial arpents, together with 47 slaves, were seized. The sheriff returned that after having complied with the legal formalities, and after advertising the property by advertisements at the church and court house doors, and in the newspaper published in Donaldsonville, on the 6th June he proceeded to the plantation of the de[77] fendant where the sale was advertised to take place, and adjudicated the property to the present plaintiff, J. W. Zacharie, for the price of $40,050 as the highest and last bidder; but the amount of the adjudication was not paid in consequence of an agreement the day after the sale was passed, between the parties, plaintiff and defendant in the execution, in which they declared the sale was null and void, and all the proceedings under the execution were by them held as though they had never taken place. “The deed of sale was made out in due form by the sheriff to the purchaser on the 8th,” and recorded the 9th June. All this is stated in the sheriff’s amended return of the 27th May, 1840.</p> <p>On tho 27th January, 1840, a second execution issued on this judgment for the whole amount, and the sheriff seized the plantation and slaves of the defendant, and all the stock thereon, and advertised them in the newspaper, and by advertisements posted up at the court house and church doors of the parish fijr 30 days. Upon the day of the sale the defendant was duly notified and failed to appoint an appraiser. The sheriff appointed Manuel Euentes and the plaintiff J. „V. Oresap, who were sworn and made the appraisement. The sheriff then proceeded to sell the entire property seized, in block, and it was adjudicated to J. W. Zacharie as the last and highest bider for $32,250 on the 6th March; the purchaser retaining $9,261 for the payment of his debt, and the balance after paying costs of sale, &c. was to be applied to the payment of the mortgage debts due by the defendant and existing on the property.</p> <p>Zacharie took out a monition under the Act of 1834 to perfect the sheriff’s sale to him, to which the defendant made opposition on various grounds.</p> <p>1. That the judgment on which the second execution issued was satisfied by the first sale.</p> <p>2. The execution issued for the whole amount of the judgment when only half of it was executory.</p> <p>3. That the land, slaves, &c. were not legally advertised in the man- [78] ner and for the length of time required by law.</p> <p>4. There was no legal and proper appraisement; and by the illegal acts of the sheriff and of the plaintiff, the property was falsely and fraudulently appraised at not more than half its value.</p> <p>5. The sale was not made at the seat of justice of the parish as the law requires.</p> <p>The opponent avers that the plaintiff was well acquainted with all the nullities of the sale when the property was delivered to him, by reason of which and of all the defects and nullities set forth the said sale should he annulled and the said Zacharie ordered to deliver up the property to him.</p> <p>It appeared by the evidence that Oresap one of the appraisers, had a judgment and mortgage against Winter at the time of this sale for $5,568, and that he had an understanding and an arrangement with Zacharie that ha should buy in the plantation and slaves and they would both take them into possession and conduct it; that two other appraisers declined acting because the negroes and part of the property was not shown to them.</p> <p>There was judgment dismissing the application for a monition; rescinding and annulling the sale and ordering Zacharie to deliver up the property to Winter. The former appealed.</p> <p>insisted on the reversal of the judgment •, that the monition law only extended to mere defects in the manner of making the sale. The formalities required by law were pursued by the sheriff and the sale should be maintained.</p> <p>urged the nullity of the sale on the grounds stated in the opposition, and cited various authorities in support thereof.</p>

<p>Although a vessel maybe old, and when injured by sea accidents require more repairs than a now one, the insurers are nevertheless bound for the necessary repairs to place her in statu quo.</p>

This is an action for work done and services rendered; money lent and advanced, to and for account of the defendant during part of the year 1887 and the year 1838; amounting to $1157 25, for which the plaintiff claims judgment. The defendant pleaded a general denial and required strict proof of each and every charge against him.

district for the parish of Iberville, the judge thereof presiding. This is au action to recover the sum of three hundred dollars and the interest thereon; the balance of the price of a tract of land, which the [88] plaintiff shows he sold to the defendant in 1835, for the sum of twenty-five hundred dollars. He prays judgment for the amount of his debt and interest.

This is an action on a policy of insurance in which the plaintiffs claim $859 67, for damage done to fourteen hogsheads of zinc on their passage from Mew-York to Mew Orleans. The zinc was much corroded and rusted on its arrival, evidently occasioned by salt water on the voyage. The defendants insisted they were not liable and set up several matters in defence which are fully noticed in the opinion of this court.

<p>The owners of a steamboat transporting passengers and carrying merchandise for hire are commercial partners and maybe sued individually or a portion of them, for a debt due by tho boat, without joining all the parties in the action. — 4 L. 47, and cases there noted.</p> <p>After dissolution of the partnership the partners should be sued in the parish or place of their domicil, and only those residing in the same parish can be joined. — 13 L. 422; 9 It. 45.</p> <p>The acknowledgment of masters of steamboats, of the correctness of bills presented for supplies or other things furnished the boat, are binding on the owners. — 14 L. 492.</p>

This is an action by Madame Adele Baird, wife of O. Biernacki, on a promissory note signed by Madame Charlotte Mexia, widow of the late General Mexia, and payable to the order of the plaintiff the 24th October, 1840, for $300. The defendant admitted her signature, but pleaded an account for goods sold and delivered to the plaintiff amounting to $500, in compensation and veconvention.

This is au actioa to recover damages for failing to finish and complete a large hotel in Pensacola, by tbe time agreed on in a contract of lease of the premises from the defendant to the plaintiff. The plaintiff alleges that he leased of the defendant tbe large hotel in Pensacola, by public act before H. B. Oenas, for two years, commencing the first of May, 1837.

Tammany, the judge thereof presiding. This is an action to recover a tract of land in the possession of the defendant.

This is an action to compel the defendants to compensate a judgment which the latter had obtained against Erwin’s heirs, with one which it is alleged Erwin’s heirs recovered against one Abram Wright, the first husband of Mrs. Bissell.

<p>Th© indorser of a note, when sued "by the indorse© or holder, has no right to inquire whether the plaintiff, in whom the legal title appears, was tli© agent or real owner, unless by a fictitious assignment he is about to bo deprived of his defence against the true owner. — 2 L. 263, and cases there noted; 3 L. á30, and cases there noted.</p>

This is a petitory action by the heirs of André Bernard to recover from the defendant a lot of ground in Ohartres-street, New Orleans. The plaintiffs claim as heirs of their ancestor, who, they allege, died in possession, and as owner of this property, in 1790.

<p>Appeau from tho court of the second district, for the parish of Lafourche Interior, the judge of the fourth district presiding.</p> <p>This is an action for the rescission of a sale of a fiatboat, fitted up to be used as a floating ball-room, on the Bayou Lafourche and the Mississippi Biver.</p> <p>The plaintiff alleges that he contracted with the defendant for a fiatboat fitted up so as to be used for a ball room, and to be delivered to him at his domicil in the parish of Ascension, and for which he was to give seven hundred dollars. That on the first of July, 1839, the said boat was delivered and represented by the defendant to be in good order and free from leakage ; but that on the next morning it had leaked to such a degree that there was ton inches of water in it; and it was found to continue leaking so as to render it unfit for use, and so dangerous as to endanger the lives of all who ventured in it by sinking. The plaintiff further alleges that the defendant fraudulently concealed the defects, with a view to defraud and cheat him ; that the defects render the boat so inconvenient and useless, that had he known them lie would not have purchased; and he has twice tendered it to the defendant and demanded the rescission of the sale and return of his notes, which he refused. He prays judgment rescinding the sale and compelling the defendant to return him his notes given for the price, &o.</p> <p>The defendant pleaded the general issue, and denied specially that there [98] was any fraud, concealment or deceit, or that there was any hidden defect or vice; but on the contrary the plaintiff had a perfect knowledge of the boat, and caused it to be thoroughly examined when he received it, and expressed his conviction of its- soundness; that the boat was sold without warranty, and expressly with the understanding that it was to he received by the buyer upon his own examination.</p> <p>Upon those pleadings and issues the cause was tried before the court and jury.</p> <p>The testimony of the witnesses was somewhat contradictory. It appeared that the boat was taken up to the parish of Ascension after its preparation where it was delivered That it commenced leaking so as to make it antirely useless, and was abandoned to the seller ; he being twice notified to receive it back and return the price.</p> <p>The suit was instituted at the defendant’s domicil in the parish of Lafourche, witnesses were called from the vicinity of the defendant’s residence, who only saw the boat before it was delivered, and testified differently from those whose depositions were taken in Ascension, and who saw the boat at and after its delivery. It was clearly shown however that the boat was leaky and almost worthless.</p> <p>The jury, from all the evidence returned a verdict for the defendant, and from judgment rendered thereon the plaintiff appealed. •</p>

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an action to recover a large sum of money as damages occasioned hy the defendant’s misconduct and had faith, while acting as agent of the plaintiff in the purchase of a quantity of tobacco.</p> <p>The plaintiff alleges that he advanced money to the defendant to purchase [100] for him and ship to his order at La Bacca, in Mexico, a quantity of tobacco in bales. That he purchased and shipped 1000 bales, invoiced at $4 per bale, with the expenses amounting to $4400, for which he reimbursed himself out of the funds advanced to him; and shipped it in his own schooner at 25 per cent, higher freight than usual. That the tobacco was damaged unmerchantable, and wholly unsuitable to the market, by which he lost $2C per bale. He prays judgment for $10,000 in damages.</p> <p>The defendant denied generally tlie plaintiff’s allegations, and especially all fraud and had faith; admitted the purchase of the tobacco and shipment in his own vessel, and did so as agent, in pursuance of his orders; that he acted as agent and in good faith, and averred that if the plaintiff has suffered-any loss he is not responsible. He admits he did not give $4 per hale as charged, hut hy good management hegot the tobacco for $3; and it was customary to charge the market price; if the court think proper, however, one dollar may he deducted ; that he purchased the schooner expressly as there was no vessel to he chartered; and shipped a larger quantity of tobacco, as the plaintiff stated he was determined to engross the whole trade. The defendant expressly avers that so far from owing the plaintiff, the latter is indebted to him in the sum of $2929 24, for freight, charges, insurance, commissions, &c. &c., according to an account annexed, and for which he prays judgment in reoonvention.</p> <p>On these pleadings and issues, and the mass of evidence adduced hy the parties, the cause was submitted to a jury, who returned the following verdict:</p> <p>“ We, the jury, find a verdict for the plaintiff, Dwyer, in the principal cause, for $3770, which includes damages.”</p> <p>A strenuous effort was made to obtain a new trial, and overruled. There was judgment confirming the verdict from which the plaintiff appealed.</p>

This is an action to recover a bull, which the plaintiff alleges belongs to him, but that the defendant has illegally taken him into his possession and detains him, although he has made amicable demand of him. He further states .that said bull is worth one hundred dollars, and that his use and profits and hire are worth fifty cents per day.

This is an action of jactitation, or slander of title, instituted hy L. Millaudon, John Slidell, J. Kohn in his own right, and as syndic of the creditors of H. G. Schmidt, and F. Frey, against John McDonough.

[105] This case arises on an application of the widow of Manis Jacobs, deceased, to be confirmed in her office of natural tutrix of her minor children, and as such to have the entire administration of her deceased husband’s succession without giving any security.

This case was before this court at March term, 1840, and remanded to inquire into the heirship and authority of Paulin and Laurent Desormes, to appear in the suit for the settlement of the succession of their deceased father Jean Baptiste Desormes. See 15 La. Rep. 16.

In this case, Oollins had been curator of the vacant estate of Gamaliel Pease, deceased, and while it was in a course of administration, he presented [117] a claim of his own in his own right, and sued to recover it contradictorily with the attorney appointed to represent the absent heirs. The attorney pleaded a general denial and put the plaintiff on strict proof of his demand; and he further pleaded payment and prayed that the demand be rejected.

This is an action against the defendant, as payee, and on his promise to indorse a promissory note for $1439 18, signed hy John Hoey, given as alleged for work and mechanical labor done and materials furnished, at the plaintiff’s iron foundry. The note is not indorsed by the payee, who, it is alleged, refused to indorse it as he promised to do. Judgment is demanded against him for the amount of the note. The defendant pleaded a general denial.

This is an action by the curator of the vacant estate of Jean Gravier, deceased, to recover from the executor of Antoine Oarraby, deceased, the sum of $55,000, the value of certain property, which he… Held: “ en nantissement,” was made out at least once a year. From 1817 down, they had no new dealings with Gravier, and only renewed notes ho had given them for his debt, at short intervals, raising the interest to 18 per cent.

<p>The indorsee or holder of a note who takes it after maturity, holds it subject to all the equities existing between the original parties, — 7 L. 118 (T.) aud cases there noted.</p> <p>So, where S. makes his accommodation note to D. to enable him to raise funds, with an'understanding that the latter was to pay it, if he used it, and he passed it to the plaintiff after it was due, in his action to recover of the maker he was nonsuited.</p>

<p>The right to future allwvial formation or batture is a vested right; inherent in the property itself, and forms an essential attribute of it; resulting from natural law, in consequence of the local situation of the land to which it attaches.</p> <p>Cities may acquire jure alluvionis, hut it must he as owner of the front, or as riparian proprietor; for the alkwion is hut an accessory to the principal estate or land.</p> <p>There is nothing in the Roman law which restricts the right of alluvion to particular locnlilh-. or portions of land, having particular names; but the right depends on the question whether the land had fixed and invariable limits, or a natural boundary on one side by a watercourse</p> <p>The Jesuits’ plantation, out of which the locus in quo arises, was originally entitled to the alluvion or batkure in its front The mere act of incorporation of the city in 1S05, changing the name of this property from rural to urban, neither made the city a front proprietor, so as to acquire ju/re alluvionis, or deprive the front lots of the right to such accretion.</p> <p>The onns or burden consequent on the right of alluvion is natural, not civil; it is a risk arising from the exposed position of the land, not the expense of making embankments; for the right of alluvion exists on streams which do not overflow.</p> <p>The public, through the agency of the corporation, has the sole use of the levee and of the bank of the river; and the front proprietors cannot extend the levee without the consent of the corporation, which in the mean time has the right to make all improvements for rendering it useful to the public and favorable to commerce.</p> <p>The French government, in laying out the ancient city of New Orleans, left an open space be-[128] tween the front row of houses and the river, marked quai on the plan, which was a dedication of this space to public use, and it became thereby a locus publicus.</p> <p>If in laying out the faubourgs, the ancient proprietors of those riparian estates, had left an open space, between the front street and the river, marking it as a public place on the plan, it would have amounted to a dedication, if accepted by the public.</p> <p>But none of the plans show any indication of Madame Delord and her vendees having ever dedicated the front of her property on the river to public use; on the contrary she continued to exorcise acts of ownership as a riparian proprietor, and was required by the city ordinance of 1830 to keep up the levee in front as such.</p> <p>Garland, J —The right of alluvion is not based exclusively on the principle of being subject to the expenso and burden of keeping up roads and levees. The Roman jurists say it is a mode of acquiring property by natural law; that it is just the advantages of the thing should belong to him who supports its disadvantages.</p> <p>The plan of Madame Delord, leaving an open space between New Levee-street and the river, was not a dedication of this space to public use. There was nothing marked or written on it indicating an intention so to dedicate it.</p> <p>There is no particular form, necessary to a dedication of land to public use. But it requires tho assent of the owner and the fact of its being used for the purposes intended.</p> <p>Martin, J. dissenting. — Where the plan of a city or faubourg fronting on a navigable river, or the sea, has an open space between the front row of houses or street, and the water, it becomes part of the port, and is a locus publicus, dedicated, to public uses, without any other designation whatever.</p> <p>The batture which formed in front of the faubourgs.of the city of New Orleans, after their incorporation with the city, became th $ property of the city, and not of the front proprietors.</p> <p>In countries governed by the civil law, the ports or landing places of cities situated on navigable rivers, lakes or the sea, are locus publicus, in which individuals have no right of property.</p> <p>The plans of Faubourgs Delord and Saulet laying off these plantations into city lots and squares, divested the own ere of all interest, except in the lots and squares sold to individuals, &c. All the rest was dedicated to the public. The land or space between New Levee-street and the river became a locus publicus, destined to the public use. This dedication required no further evidence than the plan and the use of these places by the public.</p>

On an application for a rehearing. This case comes np on an application for a rehearing. recapitulated the facts of. the case and urged a rehearing on the ground that the decision was erroneous, in considering the exception filed in this court as going to extinguish the cause of action.

This is an action on a promissory note, executed by J. H. Gladding, a few hours before his death, in favor of the plaintiff, a free woman of color, with whom he lived and called his housekeeper, for the sum of $4000, payable thirty days after date. Suit was brought against the curator of the deceased, who refused to allow or pay it.

<p>Appeal from the court of the fourth district, for the parish of Iberville, the judge of the second presiding.</p> <p>This is an action on a promissory note, against the maker and indorser, given in part payment of the price of two slaves, purchased at the probate sale of the estate of plaintiff’s deceased wife; for the price of eight hundred dollars.</p> <p>The defendant, Dodd, who signed the note and purchased the slaves in question, pleaded the general issue and failure of consideration. He [150] further averred that the two slaves were sold with full guaranty, hut one was afflicted with redhibitory defects and diseases so as to render her useless and worthless to him. He prays that the sale he rescinded, the notes given up, and that he have judgment in reconvention for $523, &c.</p> <p>The other defendant pleaded a general denial, and denied that the plaintiff was the proper owner of the note sued on.</p> <p>The suit was instituted the 11th of September, 1837; and was called for trial at the April term following. At the trial the defendant prayed for a continuance on the ground of the absence of one B. McOarty, who was a ma-' terial witness to prove the redhibitory vices and defects in one of the slaves, &c. The motion for a continuance was overruled. Other witnesses were examined, and the cause submitted to a jury, who returned a verdict for the plaintiff, and rejecting the demand in reconvention. From judgment rendered thereon, the defendants appealed.</p>

<p>"Where part of a letter is offered in evidence and objected to, if any part of it is used, tho party must admit the whole of it as evidence. — 1 K. 13.</p> <p>Where a note is deposited as collateral security, or pledged, after it is due, it is subject in the hands of the depositor to all the equitable olfsets, which the maker had against the original payee or holder; or which ho may have, until he receives notice of the transfer.</p> <p>As a general rule the indorsement and delivery of a promissory note transfers the proporty in it; but it is not every deposit and indorsement of a note as collateral security, that transfers such absoluto property as will deprive the payee or depositor of all right and the maker of every defence he may have against it previous to notice of the deposit or pledge. — 12 L. 93 (II.), and cases there noted.</p> <p>The indorsee of a draft, though only agent, may maintain an action in his own name, but it will be liable to the equities of the defendant against the real owner.</p> <p>' So, the transfer of a noto before maturity under circumstances calculated to excite a reasonable suspicion in the indorsee of legal or equitable defences on the part of tho maker, will not preciado evidence of such equities or defences, in an action by tho indorsee. — 2 L. 268, and cases thero noted; 3 L. 430, and cases there noted; 7 L. 113 (V.), and cases there noted.</p> <p>A note must be transferred in good faith, in the ordinary courso of business, before maturity and without any circumstances to induce a reasonable belief of the existence of such equities or defence, to preclude evidence of them by the maker.</p>

<p>The taking of a mortgage on a vessel by notarial act, to secure loans or notes due by the owner oil account of the vessel, does not confer any right or privilege whatever; ships not being susceptible of mortgago. — 7 L. 4S5 (III.), and cases there noted.</p> <p>So, a creditor for advances or loans in money made to the owner, and applied to the use of the vessel, has no privilege allowed him by law.</p> <p>[159] Attaching or seizing creditors are entitled to a preference over ordinary creditors; and over each other, according to the order of their seizures, — 3 L. 17S (III.), and cases there noted.</p> <p>Claims for towage are not entitled to privilege, it not being expressly allowed by law.</p>

In this ease, the plaintiffs having seized the sum of $8,000, which was deposited to the credit of the defendant, Gurney, in the Oanal Bank, W. H. Robertson made opposition and claimed the money as belonging to him, and on deposit with the defendant as his cotton broker. He took a rule on the plaintiffs to show cause why the seizure should not be set aside, and the money delivered up to Mm.

<p>Where the adverse party is notified by a-rule before trial, to show cause why certain depositions shall not be read, and no valid objection is made, it is too late at the trial to have them excluded, although there aie glaring defects in them.</p> <p>Where the verdict substantially settles all the points in controversy, it will be deemed sufficient, although it may not technically embrace each issue arising out of the pleadings.</p> <p>If the judgment be diiferent from the verdict, it is not a cause for a new trial, or to remand the case. It will be amended so as to conform to the verdict.</p> <p>A contract for Moms Multicaulis trees partly executed is rescinded, and money paid, returned, on account of the imposition in delivering spurious trees.</p>

This case commenced by injunction, restraining an order of seizure and sale.

Appear from the court of the fourth district for the parish of Pointe Ooupée, the judge of the second district presiding. This is a possessory action.

The plaintiff obtained a judgment for $1248, against Angus McUeill who had been bailed by James Erwin. Execution issued on this judgment and property of the defendant seized in tbe bands of Erwin.

<p>A tutrix may appoint an attorney in fact to carry into effect any act of sale which she could legally executo.</p> <p>Security against the danger of eviction will be required when the title is not complete, although the lapse of timo rendeis the probability of a disturbance somewhat remote.</p> <p>When security is given against a disturbance or eviction the vendor may proceed with his executory process for the price due on the sale.</p>

<p>Where the minor’s rights against his tutor are secured by a special mortgage regularly accepted, by a family meeting and l)y the court, the purchaser is justified in concluding that the general mortgage in favor of the minor has ceased to exist — See 9 L. 192 (X.), and cases there noted.</p> <p>Third persons dealing with a tutor are bound to inquire how the minor’s rights are secured; and the general mortgage resulting from the tutorship only ceases to exist with regard to third persons after the special mortgage has been accepted and recorded. — 9 L. 196; 14 L. 470.</p> <p>The general rule is, that purchasers under the faith of proceedings apparently sanctioned by the probato court, or a judgment, cannot be affected by a suit of the minor seeking to annul those proceedings.</p> <p>So judicial mortgages resulting from recorded judgments of creditors of a tutor, acquired under the faith and protection of a decree of a court of competent jurisdiction, which had never been annulled or attacked, will be satisfied in preference to the minor’s general mortgage purporting to have been raised by this judgment. — 16 L. 120.</p> <p>But where the proceedings in the court of probates do not conform to all the provisions and formalities of the law required in giving special, in lieu of a general mortgage, the judgment rendered therein is not sufficient to protect purchasers against the minor’s general mortgage.</p> <p>And where no experts were appointed, no previous liquidation of the minor’s rights had and the act of special mortgage not accepted by the judge or under tutor, and never sanctioned by the court of probates, such proceedings will not authorize the purchaser from the tutor to disregard the minor’s general mortgage.</p> <p>A judgment not attacked as fraudulent or collusive is prima facie evidenco that the sum for which it is rendered, is justly due the minor. — S L. 193 (III.), and cases there noted.</p>

This case arises on an opposition made by Guiseppe Giordano, to the homologation of the tableau of distribution filed by the syndic of the creditors in this case. The opponent alleges that besides his mortgage claim, he is a privileged creditor of the insolvent’s estate in the sum of §55 62, for clerk’s and sheriff’s fees, by him advanced in a certain suit in -which he had judgment for costs against said insolvent.

This is an action on a promissory note. The note of defendant became due on the 1st December, 1889, and suit was commenced the 3d Sep- [210] tember preceding.

<p>Where it is established that the defendant has been judicially notified of the titles or claim which is the foundation of the demand for the whole of the property or debt, so as to acquire a sufficient knowledge of the rights sought to be enforced against him, there results a legal interruption of prescription in favor of those to whom such rights belong.</p> <p>So, where suit is brought on a promissory note by D. F. as the surviving partner of the commercial firm of D. B F. & Co., who was nonsuited, yet it being for the whole amount of the claim or noto, caused such an interruption in favor of the plaintiffs or firm, as to destroy the defendant’s plea of prescription. — 3 L. 274, and cases there noted.</p>

[221] This is a petitory action, instituted by the heirs of their grandfather, Jean Lavergne, to recover a small tract of land lying on the shore of Lake Pontchartrain, near the mouth of the Bayou St. John, in the possession and claimed by the heirs of the late Harvey Elkins.

<p>Appeal from the court of the third district, for the parish of East Feliciana, the judge thereof presiding.</p> <p>This is an action instituted on a promissory note against the maker and indorsers, which had been discounted at the branch of the Union Bank at Clinton. Tlie petition sets out the name and style of the plaintiffs in the following manner: “ The petition of the president and board of directors of the branch of the Union Bank of Louisiana, at Clinton, &c., whose principal establishment is in the city of New Orleans.” On this petition judgment is prayed against the defendants for the amount of the note sued on.</p> <p>The defendants admitted their signature, but pleaded a general denial to every allegation in the petition. After the cause was at issue, the defendants filed a peremptory exception, expressly declaring, that the Union Bank at Clinton (plaintiffs), were wholly incapable and without capacity to sue or stand in judgment, or carry on any suit for or in behalf of the principal bank in New Orleans, and prayed that this suit be dismissed.</p> <p>This exception was sustained by the district judge on the ground that the charter did not authorize the branch bank to sue. From judgment rendered therein the plaintiffs appealed.</p> <p>insisted on the reversal of the judgment:</p> <p>1. The judge a quo, erred in permitting a dilatory plea to be filed aeter [238] a regular judgment by default had been rendered. See said judgment, page 7 of the record; also the exception, at page 9 of the record ; the exception having been filed nine days subsequent to the rendition of the judgment by default. See “ an act to amend the Code of Practice, approved the 20th March, 1839,” section 28d; also Code of Practice, art. 344.</p> <p>2. The judge a quo, erred in permitting such an exception (or even a peremptory exception founded on form,) to be filed after a regular answer to the merits. See the answer at page 8 of the record, and bearing date the 12th of November, four days prior to the filing of the exception. On this point, no authorities, it is humbly conceived, need be cited.</p> <p>3. The suit (being instituted on a note payable to order and indorsed in blank) should have been sustained in the form in which it was brought, because, a-final judgment rendered therein, either for or against the plaintiffs, would have formed res judicata in favor of defendants. See Civil Code, art. 2141, paragraph 1st; also art. 2144. See also the following decisions of this court, viz., Banks v. Boston, 3 Mart. N. S. 293 ; Lacoste v. Be Armas, 2 La. Bep. 264; Boswell v. Zender, 13 Id. 366.</p> <p>Lyons, for the defendants, contended that peremptory exceptions founded in law may be pleaded even after issue joined, and when the pleadings show a total want of right and capacity in the plaintiffs to stand in judgment, advantage may be taken of it at any stage of the proceedings. Code of Practice, 345, 346 ; 4 Martin, N. S. 434.</p> <p>2. The Branch of the Union Bank of Louisiana has no power by charter to sue or be sued. A judgment in favor of the president and directors of a branch, would not form res judicata. Even payment to them would not be good. See Charter in Session Acts of 1831, p. 42, sections 1, 9, 33, 34, 35, 86.</p>

<p>Judgment of the inferior court affirmed "by consent; damages being waived.</p>

This is an action by tbe plaintiffs, as joint administrators of the succession of Gen. E. ~W. Ripley, deceased, instituted in tbe court of probates, against tbe defendant, who is tbe surviving widow, and alleged to have accepted tbe community of acquets and gains; praying for a sale of so much of said property as may be necessary to pay all tbe community debts, and that a partition be made of the residue according to law.

This is in the nature of a petitory action to recover a lot of ground which the plaintiff alleges be purchased at the prohate sale of Josiah Nettles’ estate, in January, 1835, for the sum of $156, as the last and highest bidder.

This is an action for the rescission of the sale of a house and lot in the town of Baton Rouge, which the plaintiffs allege was made to the defendant, a free woman of coloi-, by their debtor, in fraud of their rights as creditors. They show a judgment against their debtor for upwards of five hundred dollars, and expressly charge that he conveyed the house and lot in question to the defendant to secure it from the payment of- their just demand.

This is an action against the syndic of the insolvent succession of Green B. Davis, deceased, to recover the snm of $1,986, which he alleges was received from the estate of his father by the insolvent, while acting as his tutor and administrator of said estate.

[264] This is an injunction case. The plaintiff obtained an injunction to restrain an order of seizure and sale which the defendant, Bradford, had taken out and was prosecuting on his mortgage and vendor’s privilege. The plaintiff alleges that the defendant failed to make the necessary legal demand of him as third possessor, and to take the oath required before resorting to the hypothecary action against mortgaged property in his hands as a third possessor.

This is an action for professional services as attorney and counsellor at law. The plaintiff alleges he was employed with another lawyer to institute suit in the probate court of Pointe Ooupée, to compel a tutrix to render an account, and to annul certain probate proceedings and recover for the plaintiffs therein (present defendants) a plantation and about forty slaves; that the [268] petition was filed and he was at much trouble to investigate the law and facts of the case.

This suit commenced by injunction. The plaintiffs allege they have power and authority conferred on them by the laws of the late Orleans Territory, and an act of Congress passed the 3d March, 1807, to dig and make a canal from Lake Pontchartrain to the MississippiKiver.

[274] This case commenced by injunction. The plaintiff sues by his agent Joseph B. Thomas, and shows that lie is the transferree and owner of a judgment, recovered the 27th January, 1825, by O. McMicken as curator of the estate of Taliaferro Eeno, deceased, against Edmund Monroe and others, for the sum of $3773, which was duly recorded in the parish judge’s office, the 8th February following.

The plaintiffs allege they are the owners, and have been in the undisturbed possession of six lots, composing a square or islet of ground in the Faubourg Delord, fronting on the river Mississippi and on New Levee, Benjamin and Suzette streets.

This is an action for the settlement and balance on a partnership for carrying on the brick-malring business. The plaintiff alleges that in April, 1837, he put in six able bodied negroes, a cart and oxen, and the defendant was to furnish five negroes and his own services in carrying on a brickyard; the [283] profits arising to he on joint account.

<p>Appeal from the court of the third district for the parish of West Feliciana, the parish judge presiding.</p> <p>This is an action for the rescission of a sale, alleged to have been procured by threats and violence, and for damages.</p> <p>The plaintiff alleges that in April, 1835, he became a partner in equal right with James F. Mickie in the ownership and cultivation of a plantation and gang of slaves, one undivided half of which was on the above date conveyed to him by said Mickie, who was previously the sole proprietor thereof. That they continued to cultivate and carry on said plantation, alternately in the absence of each other; until the 24th December following, when said Mickie without any pretext of bad management on his part, with force of deadly weapons and violence, aided by other persons, forced him to sign an aet of sale at midnight reconveying all his right, title and interest in said property for the paltry sum of $8000, when in fact it was worth $30,000. He expressly charges that he was compelled forcibly to sign said act of sale, and that Ms interest in said plantation was forcibly, violently and knavishly. wrung [287] and extorted from him for the inadequate sum of $3000, which from terror and fear he was constrained to accept; that he shortly afterwards and since tendered to said Miclde the said sum of money and demanded a rescission of the sale and restitution of his rights and interest in said property or otherwise pay him $30,000. He prays that said sale he rescinded and annulled ; that he be restored to his possession and rights to said property; and that he have judgment for $30,000 in damages for the wrong and injury sustained by reason of the premises.</p> <p>The defendant admits the resale and conveyance to him by plaintiff of the property mentioned, for which he gave him a draft payable ten days after date for three thousand dollars on the house of Shipp, Ferriday & Co., at Hatchez, which was paid the 8th January, 1836, which sum was more than equal to his interest in said property; that plaintiff had neither advanced or paid any thing for or on account of said property. He further avers that his association with the plaintiff became disagreeable and insupportable on account of a report unfavorable to his character which he took no pains to investigate or clear up, by reason of which he solicited a settlement of their affairs, which resulted in a reconveyance of all his interest in the concern for the sum of $3000. He expressly denies that there was any'threats, force or violence used on the occasion; that there never has been a tender as alleged, but on the contrary the plaintiff received and still retains the said sum of $3000 to his use, and expressly and tacitly approved and ratified said sale or contract of reconveyance. He further denies all the allegations in the petition except so far as they have been expressly admitted, and prays that this suit be dismissed.</p> <p>On these pleadings and issues the case was tried before the court and a jury-</p> <p>The defendant died before judgment and the suit went on against his heirs.</p> <p>There was a mass of testimony taken and read on the trial touching the alleged threats, violence and force used in obtaining a rescission of the first [288] sale, or reconveyance of the plantation and slaves from the plaintiff to the defendant, which satisfied the jury that unfair means had been used. There was a verdict rescinding the reconveyance or sale of 24th December, 1835, to defendant, and restoring the parties to their former relative situations; and that the plaintiff recover for rents and revenues accruing from the plantation the sum of $8184; and the former sum of $6000 in damages.</p> <p>After an unsuccessful attempt to obtain a new trial, from judgment confirming this verdict the defendants appealed.</p>

<p>Appeal from the court of the first judicial district.</p> <p>This is an action by the city council of Lafayette, to compel J. H. Holland, G. Depassau, and J. Gleize, to relinquish all claim to a strip of ground in [287] front of their lots in the city of Lafayette, lying between Levee-street, on which their lots front, and the levee. The city council claims the administration of this space as a public place, for the use of the public, and requires that it he kept open and used as such.</p> <p>The defendants pleaded the exception of res judicata, founded on two suits, in which these parties had obtained judgments against the corporation in two possessory aotions, putting them in possession of this same strip or space of ground. On the merits, they pleaded the general issue.</p> <p>Upon these pleadings and issues the case was tried.</p> <p>The original plan, when the nuns laid off their plantation into a faubourg and town lots, in 1810, together with the deeds or acts of sale from the superior nuns to Monsieur J. Deville Degoutin Bellechasse, and to Pierre Derbigny, under whom the defendants claim, were produced in evidence.</p> <p>The principal question to he decided, was, whether this open space, which appeared on the original plan, outside of Levee-street, and hetween it and the levee, was public, by dedication on said plan to and for the public use ? The defendants claimed it as riparian owners of the lots fronting on Levee-street, opposite to the space.</p> <p>The district judge decided, that the presumption of an intended dedication was negatived.</p> <p>1. By the width of the high road or Levee-street, marked on the plan, which is 60 feet wide, French measure.</p> <p>2. By the express declaration of the nuns in their deeds of sale to the defendants’ vendors, that the purchasers of front lots should he seized of the property as riparian proprietors.</p> <p>3. By the clause in said deeds, reserving to the purchasers of hack lots the right of taking earth from the batture.</p> <p>There was judgment in favor of the defendants, without prejudice to the legal control of the plaintiffs, under their act of incorporation, over the streets, levees, hattures and wharves.</p> <p>The plaintiffs appealed.</p>

This suit commenced by injunction. The plaintiff alleges she inherited $1100, from her father, which came into the hands of her tutor; that she was compelled to take a house and lot in the town of Baton Rouge from her' said tutor, valued at $975, for this much of her claim, which was conveyed to her as her separate and paraphernal property with the consent and assistance of her husband; that she has always administered and considered this as paraphernal property.

This suit commenced by injunction. The plaintiffs allege they are owners and possessors of honses and lots in the city of Lafayette; having been put in possession by a sworn surveyor, and their lines and boundaries pointed out to. them by him, which possession they have held for upwards of fifteen years; and that they have built their houses and made improvements on their lots and within their boundaries respectively, hut that the president and hoard of council for said city…

This is an action for the rescission of the sale of land. The plaintiff shows that on the 12th and 20th January, 1836, he sold and conveyed to the defendant, Rightor, by acts under private signature, “ all his right to certain land back of the eighty arpents on which he resided,” for the sum of $15,000, one third of which was to have been paid in cash, and the balance in two instalments, for which Rightor was to give good indorsed notes.

On an application for a rehearing. solicited a rehearing in this case. They insisted on it because the court had decided the whole case, when it was only tried in part in the court below; and the question decided by that court could alone be appealed from. The question of damages was by consent of parties reserved until the right of the defendants to make the levee should be first decided.

This is a suit to recover from the Third Municipality the amount of an account ($498) for putting up small planks at the corner of each street in said municipality, with the name of the street thereon in large letters, at the rate of one dollar for each plank. [318] The municipality refused to pay the account, although its officer certified that the work had been done.

This is an action to recover a legacy. The plaintiff, Charles Gordon, Duke of Eichmond and Lenox, superior and feudal lord of the burgh of barony and town of Fochabers, in the county of Moray, Scotland, and Alexander, Marquis, baron, bailie, and sole magistrate, appointed by the Duke of Eichmond for the administration of justice in said town of Fochabers, allege, that Alexander Milne, also a native of said town, hut for a great many years a resident of New Orleans, died in…

This is an action by Ann M. Morehouse, wife of J. M. Patton; of Lucretia OÍ Morehouse, wife of Joseph Pilcher, of Nashville, Tennessee; and of R. H. Sterling, of Mississippi, in behalf of his minor children, in right of their deceased mother, Eliza Cornelia Morehouse, who claim tobe the only legitimate heirs of Col. Abraham Morehouse, who died in the parish of Ouachita, in the year 1813.

<p>Where garnishees.are in possession of a slave, transferred to them in Mississippi by the surviving partner, in payment of a debt due by the firm, they will hold it against an attaching creditor of a new firvn> of which this partner is a member.- — 9 ee 8 M. 486; 18 L. 489.</p> <p>Evidence which is introduced and received without opposition or objection, although contrary to, or beyond the allegations contained in the pleadings, the adverse party is bound by its effect. — 6 N. 9. 86; 1L. 801,</p> <p>Whore cotton is shipped to consignees who aro entitled to a right of privilege, so that the consignor or owner could not take it out of their hands, Ids creditor cannot attach it in their hands. —ih. 183 (II.) and cases there noted.</p> <p>9o, where the defendants gave an order on their attorneys to pay over the proceeds of certain cotton, which they had attached, to the intervenors, to be credited in their (defendants’) account, it is good against subsequent attaching creditors of defendants.</p> <p>■Oakland, J. dissenting.* — It is not shown that the intervenors made any specific advance on the thirteen bales of cotton, and are therefore not entitled to a privilege, under the article 8214 of the Code, consequently the plaintiff’s attachment ought to hold the property.</p>

Ox a rehearing in part. obtained a rehearing on the ground that interest had not been allowed on the amount of the legacy claimed from the time it was demanded. They argued as follows: 1. The court considers that interest cannot he included in the judgment because it was not claimed in the petition. The court is pleased to acknowledge the soundness of the principle that interest is due on a legacy like this, from the day of the demand.

[333] This is an action by the second indorser of a bill of exchange, against the drawee; which hill is described as having been drawn by B. Gr.

<p>Affidavits of witnesses sworn to before the clerk, not in opon court, do not constitute) that proof which is required by law.</p> <p>Clerks of courts have no authority, out of the presence of the court, to swear witnesses and [883] take down their testimony in a cause. They are only to administer oaths in open court; and out of it in cases of arrest, attachment, provisional seizure, or generally in any conservatory measure required by one of the parties to a suit.</p> <p>"Witnesses must be examined after issue joined, and give their testimony in open court, or it must be taken under a commission.</p>

This is an action to recover the sum of $1000, the penalty stipulated in a contract of sale in case of non-compliance, and ten per cent. per annum on the amount or value for the time the plaintiff was kept out of the price and use of his plantation.

<p>The plaintiff, as president of the Orleans Cotton Press Company, when there was no salary fixed, claimed $8000 per annum for his services, and the testimony of witnesses went to show that they were worth it: — that the sum of $2000, voted to his successor, be taken as the proper amount to be allowed.</p>

This is an action to render the defendants liable for the value of a slave killed while lying asleep on their road, by the engine running over him. The testimony, in substance, showed that the negro had either become intoxicated or was by fatigue induced to lie down on the road and go to sleep. On the other hand, the engineer was unable or neglected to take up the engine in time to prevent running over him.

This is an action by a partner against his co-partner for the dissolution of a particular partnership, entered into for the purpose of carrying on the manufacture of biscuit, crackers, &o., on a new plan according to a patent machine, which they hired from one John Bruce, a brother of the plaintiff, who intervened in this suit. The partnership was entered into on the 17th January, 1838, and this suit commenced in May following.

<p>Appeal from the court of the fourth district for the parish of Iberville,, the judge of the district presiding.</p> <p>This is an action by the police jury of the parish of Iberville to recover the sum of $3,947 from the defendant, being the balance due of the parish taxes for the year 1837.</p> <p>The plaintiffs show that the defendant, Sherburne, gave bond with security for the faithful performance of his duties as sheriff of the parish of Iberville, and that he was to collect and account for all taxes of the State and parish. They allege that he has failed to collect and pay over the balance above stated, of the parish taxes, and that thereby the condition of the bond is broken. They pray judgment for this sum.</p> <p>The principal defendant pleaded a general genial; he denied specially that he was responsible for the parish taxes; that there was no cause of action, and that he is not indebted as is alleged.</p> <p>The plaintiffs offered the sheriff’s bond in evidence, and the parish assessment roll under which the taxes were collected and proved the demand, and had judgment. The defendants appealed.</p> <p>insisted on the affirmance of the judgment, as being fully established by the evidence.</p> <p>urged various arguments to show that the judgment was erroneous and should be reversed.</p>

This is an action of partition. The plaintiff alleges he is a co-proprietor and owner of one undivided third part of a tract of land; and that Newport and wife, and Sarah Young, Ann F. Young and husband, and Sarah Eliza Young, a minor, are all interested and co-proprietors of the other two thirds, and that it is necessary to have a sale in order to effect a partition. The defendants were all made parties and one of them Joined in the [847] prayer for a partition.

This suit comes up on an injunction, obtained to stay an order of seizure and sale. The plaintiff obtained an order of seizure against two lots of ground, on a note of the defendant for $7905, payable one year after date, without interest ; but secured by mortgage on these lots, stipulating that said note should bear ten per cent, interest from maturity, if not then paid. The order issued for the amount of the note with ten per cent, interest from its date until paid.

<p>Appeal from the court of probates, for the parish and city of New Orleans.</p> <p>The plaintiff alleges the succession of Manuel Borges is indebted to him in the sum of $63,634, for this, that in 1820 he left with said Borges nine slaves, with the understanding that he was to hire out said slaves and remit to him the proceeds at Kio Janeiro, in Brazil; but that he had never received any thing from him. He further alleges that said Borges several -times admitted the slaves were left with him to hire out for his (petitioner’s) 'benefit, and that he had totally failed to account for either the slaves or their ''[349] hire; that their value and that of their services or hire are well worth -the sum he claims, and for which he prays judgment.</p> <p>The executors and heirs excepted, and denied the plaintiff’s right to main•tain his action, and that his opposition should be dismissed.</p> <p>On the trial the plaintiff in opposition offered a witness to prove that Borges in his lifetime had acknowledged that he held these slaves as the plaintiff’s agent. This evidence was opposed on the ground that parol proof •could not be recéived to show title to slaves, under the allegations in the opposition, which objection was sustained by the court, and a bill of exceptions taken.</p> <p>The plaintiff offered the record of a proceeding against him in the United States district court for the eastern district of Louisiana, on account of these same slaves.</p> <p>This evidence showed that a Portuguese vessel with slaves (including the nine now claimed,) had been captured at sea by pirates, and recaptured "by an American vessel and brought into Charleston, where the vessel and ■ cargo .with .the slaves were libelled. The slaves were claimed by the vice consul of Portugal and given up as belonging to Portuguese subjects, and the plaintiff appointed agent of the Portuguese claimants to convey them thither. They were put in the schooner North Star and brought to New Orleans, in order to procure a vessel to taire them to Portugal. The vessel was seized, and the plaintiff arrested for violating the slave trade laws. He was however released, and in the mean time put the slaves into the possession of Manuel Borges, as he alleges to be hired out. He shortly after left this country for Brazil. Borges never accounted, and lately died. The slaves or their value, hire, &c., are now claimed by Penalta, the Portuguese agent who had them in possession and placed them with Borges.</p> <p>The judge of probates says in his judgment, the slaves “ did not belong to Penalta, but were the property of certain Portuguese subjects, and that the opponent (Penalta) only acted in relation to said slaves as agent of the Portuguese consulate.' He therefore can maintain no action in his in- [350] dividual capacity.” The opponent appealed from this judgment.</p>

<p>An aeiiori of boundary lies not only where tuvo contiguous estates have never been separated, but also when the old bouadary is effaced and can no longer be seen.</p> <p>Where vestiges of the ancient boundary between two plantations are to be seen, new posts should be fixed, but they must be placed where the former limit or fence stood, without regard merely to the title papers.</p> <p>Altlrough one cannot prescribe against bis own title, be can prescribe beyond it, and claim more land than Ids title calls for if he has had uninterrupted possession ■ of the surplus a sufficient ¡ongík of timo.</p> <p>No appeal lies from a decision of the court referring a case of boundary back to the surveyors appointed, with instructions to search for and run out a particular boundary line referred to.</p>

This is an action iu the nature of jactitation or slander of title.

This is a revocatory action, to annul certain sales of property, alleged to be fraudulent and simulated.

This is an action by the holder against one of the makers and indorser of a promissory note signed by Murray & Oassidy, payable to the order of and indorsed by Eusebe Belot. Belot admitted his indorsement, but denied his liability, or that the plaintiff was the iona fide holder of said note. He averred it was given to him in payment and secured by mortgage on a slave; and that James Oassidy is the true holder and owner thereof.

This is an action instituted by the plaintiff, Thomas German and his wife Edna Wood, to recover the undivided half of two lots in the city of New Orleans, in right of her mother, the late Nancy Nicholls. She alleges and shows that her mother had intermarried with one Reuben Nicholls, and that during the marriage, the lots in question were acquired, and were part of the community existing at her mother’s death, between her and her husband.

<p>■Where the evidence shows that n slave, mules and cart were run over and destroyed, through the fault and folly of the slave in driving across the railroad of the defendants, when the engine was approaching and near, the owner cannot roeover any thing for their loss. — 18 L. 339.</p>

This is an action on a policy of insurance, to recover the snm of $3,300, the value at which a house and appurtenant buildings were insured at, in Champs Elysées-street, in New Orleans, and destroyed by fire.

This suit commenced by attachment. The plaintiffs allege they are residents of the State of Kentucky, and hold a note on the defendant, who resides in Mississippi, for $6,420, executed and signed at Vicksburg, by the defendant and others, payable at the Merchants’ Bank in New Orleans, on the 1st March, 1841; which note they further allege, is secured by mortgage executed by said Wilson on the steamboat Rodolph, the 20th March, 1840.

<p>Pleas in compensation or reconvention should be set forth ■with the same certainty as to amounts, dates, &c, as if the party opposing them were himself a plaintiff in a direct action. Compensation must bo specially pleaded. — See 6 L. T5 (II), and casos there noted.</p>

In this case, the curator having filed his tableau of distribution, which was homologated, and in which it appeared the defendant was a purchasing creditor of property of the estate to the amount of $2250, retaining the purchase-money. His share of the law charges on the final administration of the estate, which proved insolvent, was $443 25. The curator took a rule on him to pay over this sum, which was made absolute, and he appealed.

This case grows out of a seizure of a lot of furniture. The plaintiff having obtained a judgment for $742 against the defendant, Mrs. Maria O. Page, caused execution to issue the 20th November, 1840, which was levied on a lot of furniture, that had been previously attached and sequestered at the suit of Brower & Co., and was in the sheriff’s storehouse.

This is an action by the surviving wife of Thomas Harrell, deceased, to recover the marital portion of her deceased husband’s estate. The petitioner alleges that her husband died rich, hut left her in necessitous circumstances, not having brought into marriage any dowry or inherited or received any property during marriage. That her husband’s estate amounts, according to the inventory, to about $20,000 ; and that he left no descendants.

• Appeal from the court of the first judicial district. This is an action on a freight or commission account, according to an agreement, and an account for $889 annexed. The defendant admits he entered into an agreement with the plaintiff, hy which the latter was to furnish a cargo of cotton for the ship Eormandie, from Vicksburg to Liverpool, at 15-16ths of a penny per pound freight, and five per cent, primage.

<p>The court of probates in ordering the sale of tho property of a succession, necessarily possesses the power to erase all mortgages existing on it, and to give a clear title to the purchaser.</p> <p>Probate courts are authorized to exercise all such powers as may he necessary to enforce their jurisdiction ; and to take cognizance of any matter arising from the consequences of the exercise of such jurisdiction.</p> <p>The evidence of tho parish judge is good in the court of probates as far as it goes to show the defendants assented to tho sale and agreed to look to tho proceeds of certain property for their claim.</p> <p>The cashier acting as the agent of a bank is a competent v itness to testify in relation to the collection of moneys, settlement of its claims, and the sums of money due to and received by it.</p> <p>■Where property is mortgaged to the Bank of Louisiana, and is sold by the administrator of the ostate to which it belonged, by order of the probate court, the bank, by the provisions of its charter is not bound by the proceedings alone, and the purchaser does not take the property free of encumbrance but subject to the bank’s mortgage. — 7 B. 506; 11B. 209; 1 A. 119; 2 A. 526, 606.</p>

This case comes up on an opposition to the hilan and petition of the plaintiff, making a voluntary surrender of his property to his creditors, and praying for the benefit of the insolvent laws.

This is an action to recover $529 42, the amount of an account or balance due from the defendant to the plaintiff, as captain of the ship Montpelier, for freight collected on account of .said ship. The defendant claimed an item of $234 90, for his commission on the outward freight for Liverpool; being on the freight of 967 bales of cotton. It [881] appears the captain procured the freight through other persons than the defendant, and without any objection being made.

<p>Appeal from tbe court of tbe first judicial district.</p> <p>This is an action to recover from tbe Bank of Louisiana and William Christy, Esq., the notary of tbe bank, tbe amount of two promissory notes signed by E. A. Blanc, payable to the order of A. Beauvais and by him indorsed. The petitioners allege, that they were tbe second indorsers on said notes, and that by tbe negligence and misconduct of the bank and tbe said notary in making demand and protest, they have lost their recourse against Beauvais their previous indorser after having taken up and paid said notes under protest. They further show that at the time they paid the notes they were ignorant of the defective and illegal protest and paid through error ; that they have since instituted suit against the first indorser and failed to recover for want of proper demand and legal protest in relation to the maker of the notes. They pray judgment against the bank and notary, in solido, for the amount of said notes, interest and costs of their suit against the first indorser and all other costs together with damages</p> <p>The defendants severed in their answers, but pleaded the-general issue, and denied specially any indebtedness to the plaintiff or liability.</p> <p>Upon these pleadings and issues the cause was tried.</p> <p>The evidence showed that the notary of the bank had made a mistake in [387] the protest of the notes in not making demand of the maker of them at Ms domicil. It appears from the notary’s certificate that he went to the house of Mr. Labatut in New Orleans, to inquire for the maker of the notes, Mr. F. A. Blanc, “ and was informed that he resided in Pointe Ooupée.”</p> <p>Protest being made accordingly, it. was shown by other evidence that he had not removed his domicil from New Orleans, but was only absent in Pointe Ooupée. On this proof the first indorser was discharged. The plaintiffs having taken up the notes as second indorsers, in ignorance of this circumstance and at the instance of the bank, there was judgment in their favor against the bank and the notary, in solido, for the amount claimed, and the defendants appealed.</p>

This is an action to recover damages for injury and damage done to plaintiff’s house and partition wall, by the defendant in erecting a new wall, by cutting away part of the foundation of the old and placing the projection of the now one thereon.

An application for a mandamus. This is an application for a mandamus to compel the judge of probates of New Orleans, to allow an appeal from an order of his court, appointing dative testamentary executors of the last will and testament of N. Girod, deceased. . When the olographic will of the late N. Girod was found and discovered to be without any executor, application was made to the judge of probates by two of the legatees to be appointed dative testamentary executors.

This case comes np on an appeal from an order of the judge of probates, appointing dative testamentary executors to the last will and testament of Hicolas Girod, deceased. Jean Francois Girod, a near relation and heir at law of the deceased, presented his petition, alleging that an olographic'will had been found and would be offered for probate and be made executory, but that there was no testamentary executor named therein.

<p>An appeal, taken to a return day which is changed hy law to a more distant day, and the record is not filed on the first, hut on the last retnorn day, will not be considered as abandoned; it is filed in proper time.</p> <p>■ In a suit for a liquidation among stockholders of an incorporated company, it cannot be legally tried, nor judgment rendered, unless all the parties have been cited, answered or judgments by default taken against them.</p> <p>Stockholders in an incorporated company, cannot ho rendered liable in solido. The corporators are only liable in proportion to the slock each one holds.</p> <p>[898] The fact that the stockholders are made liable for losses, beyond the amount of the capital stock, docs not make each stockholder liable in solido, but oniy proportionably according to the number of shares held by him.</p> <p>Although the want of proper parties can in general only he taken advantage of by exception or plea; yofcif theplaintifF singled out a part of those who were parties and took judgment against them, while as to others the cause is continued, it may he assigned as error apparent on the record.</p>

The plaintiff having filed his hilan and petition, praying for the benefit of the insolvent laws, W. J. Moffatt was appointed a provisional syndic. At the meeting of creditors, P. Riviere was chosen syndic, who took a rule on the provisional syndic to hand over the property, effects, &c. of the estate of the insolvent.

This is an attachment suit instituted the 25th of February, 1840, against the defendant, John E. Palmer, in which the plaintiffs claim a judgment on his note-for $6,833 43, with eight per cent, per annum interest thereon, payable the 25th of March, 1839, at the branch of the Union Bank of Mis- [406] sissippi, at Lexington, They pray for attachments against property in the hands of Ward, Moffitt & Oo., in New Orleans, and S. S. Oohh & Oo., who are also cited as garnishees.

The plaintiff alleges that on the 20th October1, 1886, he made a donation to his- daughter, Eugenie Rouanet, late wife of the defendant, by authentic act, of a negro girl, then about twelve years old: that in July, 1840, his said daughter died leaving two children, issue of her marriage with the defendant • who is their tutor.

This is au action against defendant, Jones, on his promissory note. He being arrested in New Orleans, gave William Brand as his bail. Judgment was rendered against him for the amount of the note.

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an action on a promissory note of the defendant for the balance due after allowing a credit.</p> <p>The defendant averred that after maturity of said note he had placed several promissory notes in plaintiffs’ hands out of which to mate the money, and in consequence thereof they agreed not to bring suit. He then propounded a string of interrogatories touching that matter, which plaintiffs promptly answered, showing that the notes deposited so far as collected had been credited, and that the balance the defendant promised to pay repeatedly but had failed.</p> <p>There was judgment for the plaintiffs and the defendant appealed.</p> <p>prayed the affirmance of the judgment with ten per cent, damages.</p>

This is a suit to procure the erasure of a mortgage which resulted from a building contract of $7000, entered into by the plaintiff with the defendant, Twogood. The plaintiff shows that by the terms of the contract, the building was to have been finished and delivered the 1st of April, 1838, but was not finished according to contract. He further shows that by payments and deductions he had reduced the principal sum to $1778. This was admitted.

This is a suit by the plaintiff against his agent employed in the sale of coaches, carriages, &c. An account is duly made out charging the agent with the items and amount of the property sold, and also crediting him with sundry items for charges paid and moneys accounted for, &c. There is one disputed item.

<p>Where the defendants, sued as drawers of a draft, plead the want of due notice, but admit it was for accommodation, and one of them offered to give indorsed notes in payment: — held, that the onus prdbandi of their having funds in the hands of the drawees, devolved on them,</p>

This is an action on a promissory note, executed jointly and severally by Mrs. A. M. Glasscock and John Hootsell, at Natchez, on the 27th of March, 1838, payable eight months after date, to the order of Samuel Ootton, for $1944 89. The suit was commenced by attaching property of Hootsell in the hands of Franklin & Henderson in New Orleans.

<p>In an action on a contract and on a tort\ against several defendants, they will be allowed to sever in their defence; even co-trespassers may plead and be tiled separately; a fortiori when one defendant is sued on a contract and the other on a tort.</p>

• This is an action in which the plaintiffs claim $15,000 in damages from the defendant, Mrs. Meld, owning about 40 arpents front of land, on the Bayou Lafourche, which she neglected to have leveed; and the police jury also, in consequence of which the plaintiffs’ canal, then digging through, was overflowed, the company’s hands became sick, and the work of excavation was greatly retarded.

<p>The testimony of two witnesses to the declarations of the deceased father that he owed his daughter (the plaintiff) $500, was received as evidence of the existing debt, although there was an attempt to discredit the testimony. — 16 L. 813 (IT.), and cases there noted.</p>

This is a suit against Huie & Hale as indorsers of a note. ■Judgment by default having been rendered against Huie on failing to ■answer, the next day his counsel filed dilatory exceptions, and ha'd the judg[427] ment by default set aside. Three days afterwards, the plaintiff, on proving his demand, had final judgment against Huie, without deciding on the exceptions; the court disregarding them and treating the order setting . aside the judgment by default as a nullity.

This is an action to recover from the defendant the sum of $68,637, which the plaintiffs allege he failed to pay over to them, out of a larger amount which had been deposited in the United States district court, of which he was clerk.

James, the judge thereof presiding. This is an action in which the plaintiff seeks to recover a dividend of part of the proceeds of the estate of the ceding debtor, for the syndics, arising on several notes of the insolvent, held by plaintiff. These notes were originally held by Michel Bergeron, who had indorsed for the insolvent and become liable in a large amount.

This is an action on a policy of insurance. The plaintiff and wife allege that insurance was effected on a large quantity of furniture, in a house in the city of Lafayette, built, the lower story of brick and the second of wood; said furniture belonging to them, amounting to §1000.

This case comes up on the application of John L. Riddell, for a mandamus commanding the judge of probates to allow a suspensive appeal from his judgment removing the applicant from the office of tutor of the minor, Frederick Banks. The applicant declares that the value of said office exceeds three hundred dollars, and alleges that he is entitled to a suspensive appeal from said judgment, and be allowed to continue in office in the mean time.

An application for a mandamus. This case comes up on an application for a mandamus to compel the [434] judge of the commercial court to allow a smpenswe appeal in the case of 6-a/rretson v. His creditors. The facts alleged for the mamdcmus are, that on the filing of a tableau of distribution by the insolvent, who was his own syndic, N. Hoey made oppo sition and claimed to be a privileged creditor in the sum of $1500 for rent due.

This is an action against the indorser of a promissory note.

<p>Appeal from the court of the first district.</p> <p>This is an attachment case. Mrs. Ellen Kirkman made affidavit that she was the agent of the commercial firm of Jackson, Kiddle & Oo. who reside in Philadelphia, and are absent from this State; that William Sydney Warwick, late of London, hut now temporarily in New Orleans, is indebted to said firm in the sum of $196,272 ; that said sum is now due, and the defendant, Warwick, resides out of the State of Louisiana.</p> <p>On this affidavit, bond was given for $300,000 by the plaintiff with Mrs. Ellen Kirkman and George A. Pynchon as sureties, and a writ of attachment issued accordingly.</p> <p>Petition was filed, garnishees cited, and the case put in a regular train of proceeding:</p> <p>When the defendant took a rule on the plaintiffs to show cause why the attachment should not be set aside, because of the insufficiency of the sureties for the amount of the attachment bond.</p> <p>On the trial of the rule, Mrs. Ellen Kirkman the principal surety, gave in a schedule or statement of her property and effects amounting to $297, 000, without making any deduction for bad debts. The district judge was however of opinion, as the security appeared ample for the amount of property seized, the attachment should he maintained, although the security was not sufficient to answer for the whole amount of the bond. Erom judg- [437] ment discharging the rale, the defendant appealed.'</p>

<p>Aj?kear from the city court of New Orleans.</p> <p>This is a suit against the maker of three promissory notes amounting to $500, protested for non-payment. There was judgment by default made final.</p> <p>The defendant came forward and averred he had made a cession of his property and was not liable to be sued; and prayed an appeal.</p> <p>The record comes up without any evidence except the notes and protests. The other testimony was not taken down. There is no bill of exception, assignment of errors, or statement of facts.</p> <p>insisted that the appeal was frivolous and taken solely for delay and prayed that it be dismissed; and that the defendant be condemned to pay ten per cent, damages on the amount of the judgment.</p>

The plaintiffs allege the defendant, Nolte, is indebted to them in a large sum, and has property or effects in the hands of Kirkman, Abernethy & Hanna, and that his residence is out of the State and unknown to them. They pray for an attachment and citation of the garnishees. The latter admitted a balanoe in their hands, due to Nolte of $3883, attached by Lambeth & Thompson.

In this case the curator of the vacant estate of Arthur, Duncan, deceased, presented his account of the administration of said estate, representing [440] that he had fully administei’ed it, and that there were not funds sufficient to pay the oi’dinary debts of the succession, after allowing the privileged demands against it'. He prayed that his account be homologated and that he he ordered to pay the claims against the succession according to his statement and classification.

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an action against the indorsers of a promissory note for $1610, signed by O. Parlange.</p> <p>The defendants severed in their answers, but admitted their signa- [441] tures and pleaded novation; averring the plaintiffs had received goods and a new note for the original debt.</p> <p>Qn the trial evidence was offered to prove the malcer of the note had sent $900 worth of drilling and a note for $1000, indorsed by Materre, in lieu of and to take up the note sued on. The plaintiffs’ witnesses proved that this arrangement never took effect; the drilling and note offered, were not accepted or received by the plaintiffs.</p> <p>There was judgment for the plaintiffs and the defendants appealed.</p>

This case comes up from a judgment dissolving an injunction which L. E. Gaiennié had obtained to arrest and enjoin an execution, taken out against him for $1,717 56, and costs, in the name of the plaintiff, who had been paid his debt by O. Deneuf bourg, and subrogated the latter to all his rights against Gaiennié.

An application for a mandamus. This is an application for a mandamus to compel the judge of the third judi- . cial district holding- court in the parish of East Eeliciana, to grant a suspensive appeal, without giving security except for costs, from a judgment dissolving an injunction, which one William Dunn had obtained against an order of seizure sued out by Robert Dyer on an act of sale and mortgage of a plantation and twenty-one slaves, sold by him to the former.

This is an action against the makers of a promissory note, given in part payment of the price of plaintiff’s pretensions to two sections of public land. The defendants admitted their signatures, but averred they owed nothing as the note sued on was given in error and without consideration.

<p>A bank, authorized to discount, as an incident to lending money, may take security; so also it may lead money on the faith of a cotton crop, and cause tho cotton to be shipped by an agent, to be spld, to reimburse tbe loan, without violating its charter.</p> <p>"Where, in a common law State, a party pledges his cotton crop for a certain sum advanced to him, and the pledgee is authorized and required to sell tho cotton for reimbursement '. — held, that as a pledge, it was defeasible before delivery, but afterwards the contract was complete.</p> <p>Delivery is essential to the validity of a contract of pledge in a common law State; and even a parol agreement, followed by delivery, is legal and binding on the parties and third persons.</p> <p>In a case of pledge, or bailment of goods, or personal property, without limitation of time for redemption, the creditor may call on the debtor to redeem after his debt is due, by having a judicial sale, under a decree of foreclosure, or upon giving reasonable notice to the debtor to redeem. But the parties may stipulate as to the time and mode of sale.</p> <p>So a contract, partaking of the features both of a pledge and of an assignment in trust, to secure the payment of a debt, is valid in a common law State.</p> <p>So, where cotton is pledged to secure the payment of a loan of money, and delivered to the agent of the creditor, making the advance, who ships it to be sold for the purpose of paying this loan, it is not liable to an attaching creditor in the hands of the consignee who is made garnishee.— 4 L. 188, (II.) and cases there noted.</p>

[449] This case commenced by an order of seizure and sale, for the payment of $3,864; being the balance of a note given by the defendant in part payment of a sugar plantation, having eight arpents front on the Bayou Lafourche, with the depth of eighty, and twenty-one slaves.

<p>A party having obtained judgment on a note in another State, cannot sue on the note, or on an account made up from the judgment and costs. He must sue on the record of the judgment, not on a parol acknowledgment of its correctness and amount.</p>

Helena, the judge thereof presiding. This is an action by the administrator of one Presly L. Stephenson’s es-[455] tate, to recover the amount of a note given in part payment of the price of a slave sold at probate sale, and purchased by the defendant, Addison. The defendant and his surety pleaded the general issue, and averred that the sale was illegal, and conferred no title on the purchaser; and refer to the case of Morris et al. v. Kemp, 14 La.

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an appeal from a judgment in a proceeding of quo warranto, instituted by F. Jordy to oust P. A. Hebrard as a director in the Louisiana State Bank.</p> <p>At the election of twelve directors by the stockholders of this institution, held the 23d of February, 1841, the defendant, Hebrard, was returned duly . elected, being the lowest on the list voted for and returned; and having one vote more the plaintiff, who was left out. The plaintiff shows that Hebrard. is ineligible to a seat in the directory this year, having been a director last year. The charter provides that the board is to consist of eighteen members ; six appointed by the governor and twelve are to be elected by the stockholders ; but that only two thirds of the old board are eligible to reappointment' and re-election. The governor in making his appointments left out two members of the old board, but they with seven of the old board were re-elected by the stockholders; making nine members from the old board, when the charter only authorized the election of eight of those who had been directors the previous year, being two thirds of twelve. That Hebrard being the lowest on the list voted for and ineligible (being already a director) should go out, and Jordy the next highest come in. A writ of quo wan'rcmto was awarded to know by what authority Hebrard continued to hold the office.</p> <p>The defendant averred he was legally and properly appointed 'and entitled to hold his office as a director in said bank.</p> <p>He further showed that the stockholders left out five of their former dii rectors at the election in 1841, which was one more than the charter required. He set out the votes and proceedings in the election. Tho whole case turned on the question, whether O. Toledano and V. Vignaud, who were [457] directors under an appointment of the governor for the previous year, and were left out in the reappointments, but were elected by the stockholders, could he considered as new members? i. e. to come in as directors elected by the stockholders from among those who had not been previously members ?</p> <p>The learned judge presiding considered Toledano and Vignaud as ineligible to hold seats at the board of directors; gave judgment vacating their places, and ordering a new election to fill their places. They appealed.</p>

This is an action instituted in April, 1837, on an account of the defendant, contracted in Philadelphia, in August, 1832, amounting to $2767 80, with interest to first October, 1835, for goods and merchandise sold and delivered to him by the plaintiffs. The defendant pleaded a general denial, and prescription.

<p>Appeal from the court of the first district.</p> <p>This is an action on a merchant’s account, contracted in Philadelphia, in 1832, amounting to $1613, with interest added to October 3d, 1835. The defendant pleaded the general issue; and also prescription and a discharge under the insolvent laws of Ohio before the account became due.</p> <p>A witness declared, that he presented this account to the defendant, in Texas, in 1836, who acknowledged that it was correct, and he would settle it.</p> <p>, [460] On this evidence there was judgment for the plaintiff, and the defendant appealed.</p>

<p>An affidavit, stating that all tho material allegations in the foregoing petition are just and true, and that the facts are such as in the opinion of the affiant authorize the issuing of an injunction, is insufficient to support the injunction. — 13 L. 46; 14 L. 87.</p> <p>The materiality of facts and their sufficiency to sustain an injunction, are matters of law, which must be decided on by the court</p>

<p>A continuance will not be allowed, because a public officer is called as a witness with his records, at the moment of trial, and shows bis records are locked up, and bis clerk has the key, and is absent at the time.</p> <p>‘Where a judgment states the “ court being satisfied that the plaintiff’s claim is correct,” it is a sufficient constitutional reason to support the validity of the judgment. — 10 L. 40, and cases there noted.</p>

This is an action against the indorsers of a promissory note. The defendant, Leake, excepted to the petition on the ground that a former suit had been instituted by the same plaintiffs against these defendants, and a judgment of nonsuit rendered against the plaintiffs, and that they have not paid the costs of the former suit before commencing this one. The clerk’s and sheriff’s receipts for their costs were produced in evidence.

This is an action by the holder or indorsee of a promissory note against the indorser, for the balance due thereon. The defendant denied being indebted as charged; and averred that he had made a voluntary surrender of his property to his creditors, and by a supplemental petition placed the plaintiff on his schedule, all of which proceedings he pleads in bar to this suit.

The plaintiffs having obtained a judgment against the defendant, the latter took an appeal the first January, 1838, returnable to the first Monday of -June following. The cause was decided hy the conrt of probates, for the parish of East Eeliciana, and citation and petition of appeal was served on the attorney of the appellees; they being a body corporate existing in the adjacent parish.

Aeheax from the court of probates for the parish of West Feliciana. 'This ¡action was instituted against James H. Mix, as administrator of the isuceessioa ¡©f James Williams. There was judgment against the plaintiff, and an appeal ¡granted the 23d April, 1839. At January term, 1840, on the suggestion of the plaintiff’s attorney, the cause was continued to make the necessary parties in the place of James H. Mix, who died since the appeal was taken.

<p>Appeal from the parish court for the parish and city of New Orleans.</p> <p>This is an action on a promissory note signed by B. Beauregard and indorsed “ Therese Palmer, per pro. A. "W. L. Palmer.”</p> <p>The defendants severed in their answers. Beauregard admitted his signature but averred he never received any consideration, and that the note was given to A. IV. L. Palmer, for the benefit of Therese Palmer; with the understanding that they were to pay it.</p> <p>Therese Palmer pleaded a general denial and averred she was a married woman and not capable of contracting; and further that the note sued on was not indorsed by her.</p> <p>On these issues the case was tried.</p> <p>The plaintiff made proof of the execution of the note ; and produced a power of attorney from Mrs. Palmer, separated in property from her husband, to him, authorizing him to transact and manage her business, and especially to indorse her name upon individual notes and bills of exchange, &c.</p> <p>There was judgment for the plaintiff, and the defendant, Therese Palmer, appealed.</p>

This is an action against John Kennard and Andrew Shields, as the indorsers of a promissory note. There was judgment by default made final against Shields; but it appearing that there were two persons by the name of John Kennard residing in the parish, father and son, and that the wrong one was cited, the plaintiff’s counsel discontinued the suit as to John Kennard.

<p>Where a building contract is modified, at the instance of the proprietor, and a plasterer employed separate from the contract with the builder, he will be entitled to recover of tbo proprietor indepond ent of the original contract</p> <p>The builder is a competent witness to testify in a suit betweon the plasterer and proprietor, for his wages, when the latter has been employed independent of the building contract</p>

This is an action to recover $3750, the amount of three promissory notes signed by George E. Wright, and payable to the order of Wm. T. Joyce, in four, eight and twelve months from the 8th April, 1837, which the plaintiff alleges were placed in the hands of the defendants for collection by the [471] payee.

This is a suit against the defendant, Boissiére, and one Jacques Le- [471] fort, as indorsers of two promissory notes, signed hy A. Bieffel, 14th April, 1837, payable one year after date. This suit was instituted the 12th November, 1840, by the holder and indorsee. The defendant, Boissiere, pleaded the general issue; and also a peremptory exception, averring he was discharged. 1. The holder made a contract with the maker, by which the debt is novated. 2.

Appear from the parish court for the parish and city of New Orleans. This is an action to recover an old slave, horse and dray, valued in the inventory at §831, and damages for the tortious taking and illegal detention of the same. The plaintiff alleges the defendant took said property and detains it without any reason or title whatever, which belongs to the estate he administers.

The plaintiff being in custody under two executions, made application for [476] the insolvent law of 1808, for the benefit of debtors in actual custody. He filed his petition and schedule, and prayed to be released from custody.

This comes up under a proceeding against the surety in a bail bond. The defendant, M. Hunt, had been arrested and held, to bail. Held: to bail. Judgment was rendered against him upon which a fieri facias issued and was returned no property found; a capias ad satisfaciendum had also issued and returned not found; but before the return day of the writ had expired, the law abolishing imprisonment for debt went into operation, which also abolished the capias. .

This is an action against the indorser of a promissory note, signed by O. J. Phillips, payable to the order of and indorsed by tbe defendant. It is dated at New Carthage, May 1st, 1836, and payable twelve months after-date, at tbe Bank of Orleans, in the city of New Orleans. The defendant excepted, that suit was pending between the same parties on this note in the circuit court of the United States for the State of Mississippi.

This appeal comes up from a judgment obtained hy the plaintiffs against the garnishee in this case. The plaintiffs had recovered a judgment for $728 against Antonio Paiej one of the defendants, as the value of certain flour they had sold to him and Smith, for cash, but which had not been paid, and which was sequestered, and bonded hy the defendant, Paie, with Bartlette, the garnishee, as surety. This judgment was signed the 30th May, 1839.

This suit commenced by attachment. The petition was filed the 25th of January, 1841, in which the plaintiff alleges that one Oharles F. Oocke is indebted to him in the sum of $880, as overseer of his plantation; and being the balance due on an order or draft of defendant in his favor drawn on R. Eggleston.

Appeai from the parish court for the parish and city of New Orleans. This is au action for the balance of account due by the defendant, who resides in Havana. Jean Ignacio Laborde was cited as garnishee, and required to answer interrogatories. These he answered as set forth in the opinion of this court. There was judgment against the defendant for $3,105. A rule was then 'taken on this garnishee to show cause why he should not be condemned tc pay the amount of the judgment.

<p>Appeal from the court of the fourth district, for the parish of Iberville, the judge thereof presiding.</p> <p>This case comes up on an injunction. The State obtained a judgment against the defendant and his surety, in a recognizance or bail bond for the sum of §1000. The judgment had never been signed; only the minutes of the proceedings of the court at the close of the term. Execution issued on this judgment, and the sheriff was proceeding to make the money by a seizure and sale of the defendants’ property. They applied for and obtained an injunction, on the ground, mainly, that the judgment against them was not executory, having never been signed according to law.</p> <p>On hearing the case on the injunction, the .district judge decided that in the country the practice was for the judge to sign the minutes of the proceedings of the court at the close of term; that this was a sufficient signing in the view of the law. There was judgment dissolving the injunction, and the defendants appealed.</p>

An application fox- a mandamus. This case comes up on an application for a mandamus, directing the judge of probates for the city and parish of New Orleans to emegister and order the execution of a foreign will.

This is an action of damages, in which the plaintiff claims $600, for injury and damages sustained, by the negligent and unskilful conduct of a slave, in driving a dray against his gig, breaking it to pieces and injuring his servant. It appears a slave hired by the defendant, in his employment driving a dray, and being in full trot, ran against the plaintiff’s gig and broke it; doing also serious injury to the servant driving it.

<p>The curatorship must-be given to a creditor of the deceased, in preference to a person who is not such, but only alleges he was a friend. — O. 0.1114; 2 A. 97.</p> <p>A person to whom any house rent is due by the deceased is a creditor and will be preferred for the curatorship, to a stranger. — 4 L. 143, and cases there noted.</p> <p>The party failing in his application for curatorship of an estate, through the opposition of another or otherwise, must pay the expenses of the contestation. — 0. 0.1118; 4 L. 571.</p>

James, the judge of the fourth presiding. This suit commenced by an injunction.

This is an action of nullity. The present plaintiff seeks to annul a judgment rendered against him in his absence, on the gronnd that there was another suit pending for the same matter in the parish court; and for the further reason that there was no service of citation on him or his agent. The defendant pleaded the general issue.

This is an action to recover the sum of $504, the value of 287 sacks of corn, which it is alleged the defendants caused to be provisionally seized under the landlord’s privilege for arrears of rent, amounting to $200, due them by their lessees, Mills & Settle, for a warehouse in Commerce-street, in which the plaintiffs’ corn was stored.

<p>An application for a mandamus.</p> <p>This is an application for a mandamus. The tutor of the minors, Hortense and Oneida Guillemin, children of the late F. A. Guillemin, residing in the parish of St. Jean Baptiste, applied to the judge of probates for that parish, some time in February, 1841, to convoke a family meeting in behalf of said minors, in relation to a sale of certain property belonging to the sue-cession of their deceased father in the city of Mew Orleans, where his succession was opened. A family meeting was convoked accordingly and recommended the sale of the property and fixed the terms and conditions. These proceedings were homologated. The petitioner then applied to the same judge of probates to order a sale of said property, who refused.</p> <p>A rule was taken requiring the judge to show cause why a mandamus should not issue directing him to order the said sale. The judge showed for cause the reasons and grounds set forth in the opinion of this court.</p> <p>insisted :</p> <p>1. That the tutor of the minors was appointed and qualified by the judge of the parish of St. John the Baptist, where both tutor and minors reside.</p> <p>2. That by law the domicil of the minor is that of the tutor. La. Code, art. 48.</p> <p>3. The article 336 of the Louisiana Code requires the sale of the [501] property of minors to be authorized by the judge, Sa., and it means the judge of the parish of the minors’ domicil — him who appointed and qualified the tutor, and to whom alone the tutor is responsible. Code of Practice, arts. 944, 997; La. Code, 330.</p> <p>4. In all matters appertaining to minors the judge of the minor is the judge of the court of probates within whose jurisdiction the minor resides, and the proceedings of the court of probates of any other parish would be null and void. 2 Moreau’s Digest, 59, sect. 8; Martin’s Beports, 489 ; 12 La. Bep. 70; 14 Id. 478.</p> <p>The judge thought himself competent to give the order for the family meeting, and to cause it to be held before him, and the same law which authorized him to do the one, authorizes him to do the other.</p>

This is the second time which the present case has been before this court. See 13 La. Kep. 279. Olaiborne and Mather were three fourths owners of the steamboat Marmora, which was destroyed-by fire, and J. Leplicher the owner of the other fourth. The boat was insured for $40,000.

This is an action by George P. Shipman and Thomas M. Ayres, on four promissory notes subscribed by the defendant, Stewart Haynes. The defendant pleaded the general issue, and denied specially that the plaintiffs were the owners of the notes. He averred that they belonged to one William Ayres, who was largely indebted to him; and that they had been put into the plaintiff’s hands with a view to be collected and the proceeds remitted to William Ayres.

<p>Appeal from the court of the third district for the parish of East Feliciana, the judge thereof presiding.</p> <p>George Sieber claimed to be a mortgage creditor of the insolvent and made opposition to the proceedings of the creditors, in voting to sell the property surrendered on a credit; whereas he demanded, that a, sufficiency to. satisfy Ms claim be sold for cash. There was a judgment overruling Ms opposition, and he appealed.</p> <p>It turned out in evidence that he was only the assignee of a mortgage given on a portion of the property surrendered, by the wife of the insolvent,</p>

This case commenced by an alias order of seizure and sale. The defendants enjoined on the ground that the seizui'e was for too much; not allowing a credit of $800 ; and for some other alleged irregularities. On the return of the writ “ stayed by injunction,” the plaintiff amended his petition, allowed the credit of $800, and obtained a pluries order of seizure.

<p>Appeal from the court of probates for the parish and city of New Orleans,</p> <p>This is a suit instituted by the plaintiff, keeper of a boarding house, to recover the sum of $527 25, being the amount of her account for boarding and expenses, trouble, &c., for attendance on the deceased in his last sickness. She annexed a detailed account to the petition.</p> <p>On inspection of the account, and allowing a credit of $112, already paid ; and also examining witnesses, the judge of probates reduced the account to $170 ; and from judgment for this sum she appealed.</p>

<p>Where a creditor takes the goods of his supposed debtor in his absence, and sells them at a sacrifice, ho is chargeable with them, at th& price they wore limited at by the consignor.</p>

This is a proceeding against the sheriff of the parish and city of New Orleans, to make him liable for the amount of the plaintiff’s debt against one H. S. Dawson, for not returning a capias, which had issued against said defendant, on or before the return day. A rule was taken on the sheriff to this effect.

<p>Appeal from the parish court for the parish aud city of New Orleans.</p> <p>This is an action to enforce the performance, or recover damages for the non-performance of a contract made with the defendants for the importation and delivery of fifty miles of railroad iron.</p> <p>The plaintiffs allege, that in 1835, they contracted with the defendants, by written agreement, for the purchase and shipment of fifty miles of rails, from England, by the first of February, 1836 ; to he purchased and shipped under the direction of the chief engineer of the road, who went out in October, for that purpose. That the iron was to be furnished at the lowest selling price at the time ; the plaintiffs paying the first cost and all charges, with five per cent, commission on the amount. The plaintiffs further show, that the defendants wholly failed and refused to comply with their contract, to their great damage, having afterwards to pay much higher than the selling price at the time said contract should have been executed; and were greatly disappointed and delayed in their works in consequence of its non-performance. They pray that the defendants be required to perform them contract, or pay them $60,000, for damages for the failure to perform.</p> <p>The defendants pleaded the general issue. They admit their signatures [¡511] to the contract, but aver, that by the interference of the chief engineer in England with their agents, the contract was retarded, and finally prevented from being carried into effect. That they were likewise prevented from complying with their contract by the officious and inefficient conduct of the plaintiffs, &c.</p> <p>These pleadings formed the principal issue between the parties, and on which they went to trial before the court and a jury.</p> <p>Upon the evidence taken and submitted to the jury, they returned a verdict for the plaintiffs and assessed their damages at $7500 ; and from judgment confirming this verdict the defendants appealed.</p>

On an application for a writ of prohibition. D. T. Walden alleges that during the year 1840, he instituted a suit against the City Bank of New Orleans to annul cei’tain bonds, notes and mortgages which this institution held of his, on the grounds of usury and other causes of nullity; and that on filing said suit he obtained an injunction against any order of seizure and sale or other proceeding on the part of the bank, on the act of mortgage which might be instituted against…

This is an action against the maker of a promissory note executed in blew-York, and made payable to the order of the plaintiffs, at the branch of Planter’s Bank, Port Gibson, Mississippi. The defendant pleaded the general issue.

<p>The statute of ISth March, 1828, providing the mode of selling town lots in New Orleans, for the payment of city tares, applies to non-residents only. The sale of the property of a resident is a nullity.</p>

This is an appeal from a judgment setting aside a sequestration. The defendants and appellees moved to dismiss the appeal on the ground that they were not legally cited. Citation was returned as to Smith not found; and Paie was returned as being absent from the State, and service made on his attorney.

This is an action against the makers of a promissory note, and a judgment prayed in solido against them. The defendant, Townsend, admitted his signature, hut denied that he was liable. He avers, that being indebted to the plaintiffs, and divers other persons, he made a certain compromise, by which he was released from his indebtedness.

<p>Where agents sold property on short time for notes, which were not paid in full, but an extension of time given, on renewal, with small payments and interest included, all of which was communicated to the principals, who made no objection, until more than seven months afterwards: — held, that the agents were not responsible for the balance’due on the transaction.</p> <p>The principal must disapprove his agent’s acts within a reasonable time, otherwise ho is bound by the acts of his agent, done in good faith. r</p>

<p>Appeal from the parish court for the parish and city of New Orleans.</p> <p>This is an action against the indorser of a note, signed “ Oahoche.”</p> <p>The defendant admitted his signature, and averred that his indorsement had been procured under certain deceptive circumstances, and the note after-wards detained and passed away through fraud; and was not received in the usual course of business.</p> <p>On the trial, the plaintiff produced a witness to explain the erasure of Oaboehe’s name, and to show it had been erased in error. This was objected and excepted to, as there was no allegation in the petition to this effect. There was no attempt to sustain the defence; and judgment was rendered for the plaintiffs, from which the defendant appealed.</p> <p>prayed the affirmance of the judgment, with ten per cent, damages.</p>

On a rehearing. This is an hypothecary action on a mortgage purchased by the plain- [522] tiff at sheriff’s sale, under an execution which issued on Ms own judgment, against Madame Veuve Elfert, as tutrix of her two minor children, to recover several slaves, subject to said mortgage. fhe present defendants are third possessors of these slaves, on which the plaintiff’s mortgage hears; having purchased them at marshal’s sale.

Labadie, being a creditor of the insolvents for the amount of a bill of exchange, and placed on their bilan as such, opposed the tableau of distribution filed by the syndic, because he is not put down as a creditor for his share of the funds. On the trial the opponent showed, by the bilan, that he had been placed thereon as a creditor by the insolvents themselves for the sum he claimed: 2.

[527] This is a petitory action, in which the plaintiffs claim twelve lots of ground, comprised in a block or part of a square, fronting on Oircus-street, and bounded by St. Paul and Hevia streets, which they allege their father, Thomas L. Harman, purchased in 1819 from Edward Livingston, and now in the possession and claimed by the defendants, Owen O’Moran, M. Ryan, T. Park, J. Eield and L. Janin.

<p>Appeal from the commercial court of New Orleans.</p> <p>This is an action on a bill of exchange for $1065 90, drawn by J". Stewart in Hew-York, the 14th December, 1839, payable one month after date to the order of the drawer; drawn on and accepted by Gossip & Go., New Orleans ; payable at 157 Water-street, New-York.</p> <p>There was the record of a suit and judgment in New-York, rendered against the defendants, George H. Gossip and James Darcy, for the amount of the bill sued on; but it appears that the defendant, Darcy, was not cited; the writ being returned as to Mm, not found.</p> <p>The present suit is instituted on the bill of exchange, and also on the record of the suit in New-York.</p> <p>The defendants for answer pleaded a general denial; and aver, that [528] inasmuch as oyer of the bill is prayed for and refused by the court, they specially deny having ever affixed their signatures to the said instrument.</p> <p>On these pleadings and issues the cause was tried by the court. There was judgment for the entire amount of the plaintiffs’ demand, without any proof being made of the signatures of drawer .and pmjee of the bill, and also of the acceptors. After an attempt to obtain a new trial on the ground (among others) that there was no proof of the signatures of any of the parties to the bill, was overruled, the defendant, Darcy, alone appealed.</p>

The sureties in a bail given by one of the defendants, Silas B. Cater, took a rule on the plaintiffs to show cause why the bail bond should not be can-celled and the defendant and sureties discharged. 1. From the record and proceedings had in this case it is evident judgment was rendered upon a cause of action which accrued subsequent to the arrest. 2.

Appeai, from the court of the first judicial district. This is an action for the settlement of a particular partnership, and the recovery of a balance of $454, which the plaintiff alleges is due to him on a final liquidation and close of their affairs, by the defendant. He filed an account showing this balance and which is annexed to the petition.- The answer negatives all the allegations in the petition and pleads [532] the want of amicable demand.

This is an action instituted on a contract, and on an account annexed, charging extra repairs', for work and personal superintendence of the plaintiff in hauling out and caulking the steamboat Bayou Sara, belonging to the defendant, in the summer of 1836. The plaintiff claims an additional or extra allowance for work and repairs made by him over and above the sum stiip®lated in the contract.

<p>Appeal from the court of the first judicial district.</p> <p>This is an action for assault 'and battery committed on both plaintiffs by the defendants Peter and Owen Daily, claiming $500 in damages.</p> <p>[536] The defendants pleaded a general denial; and aver, that if they used any violence it was done in a passion without knowing what they were doing.</p> <p>The evidence fully proved the assault and beating of the plaintiffs without the least provocation. The jury assessed’the damages at $500, the full amount claimed. There was judgment confirming the verdict from which the defendants appealed.</p>

[538] The plaintiff, with some others, opposed the homologation of the account filed by Maria Russell, as executrix of the estate of R. Russell, deceased, alleging himself to be a creditor for the sum of $784 72, and that only part of Ms claim had been allowed.

<p>Appeal from the court of the first judicial district.</p> <p>This is an action for the rescission of a sale of three squares of ground in Hurstville. The plaintiff alleges he was induced by the advertisement and plan of the town of Hurstville to buy these squares, on'which plan a railroad figured, representing a railroad running from the river Mississippi through Nashville-street, to the Carrollton Railroad, with an extensive car house in the middle. That in fact no such railroad ever existed, but was falsely and fraudulently represented to deceive purchasers. He therefore prays for an injunction to restrain and enjoin an order of seizure and sale which had issued against these squares or lots of ground and that the salé be rescinded.</p> <p>The defendant denied any fraud or concealment in the sale of the lots or squares in question, and negatived the allegations in the petition.</p> <p>On the trial the plan and advertisement were produced in evidence. The plan on its face contradicted the allegations in the petition. Instead of a railroad, the inscription on it was, “ Nashville Railroad projected.”</p> <p>Upon the evidence adduced, which showed no deception or concealment in the sale of the lots, there was judgment for the defendant; and also dissolving the plaintiff’s injunction. He appealed.</p>

This is an action to recover the balance due on a paving contract between the plaintiff and defendants, F. Saulet and Madame Foucher, and for extra work done in paving corners of defendants’ property, according to a detailed account annexed, and with the contract between them.

<p>A party should not he permitted to take a second rule even for a new cause after having unsuccessfully attempted to sustain the first one for the same purpose, unless the new cause should have arisen afterwards.</p> <p>A witness may be introduced and examined by either party after the evidence is closed, whet* offered before commencing the argument. — 10 E. 80.</p> <p>Proof of the signatures of the subscribing witnesses to an act sows seing primé, by the testimony of a witness, will suffice without thoir production.</p> <p>An act of sale under private signature not recorded, is sufficient to prove ownership of a, slave, when there is no adverse claim, and to show the defendant’s liability for his loss.</p> <p>The captain of a steamboat is answerable for the damage occasioned by the engineer in bringing a slave on board, or acts of those employod by Mm, even when these acts are done contrary to his instructions and without his knowledge. — 1 R. 178; 5 R. 113, 138; 2 A. 406.</p> <p>To make the captain or owners of a steamboat liable for a lost slave, the plaintiff must in all cases, prove ho could havo prevented the act complained of, but did not.</p> <p>An exception to the charge of the court to the jury, must be taken when the judge shall have finished his charge, before the jury retiro and in their prosonce.</p> <p>■Where it is shown a slave was allowed to go on board defendant’s ’ steamboat and bo carried out of the State, he is Hablo for his value and all costs and damages, and cannot be excused on tho pretext that the slave passed for free. — 9 L. 339 (If.), and cases thorc noted.</p>

An application for a mandamus. This is an application for a mandamus, to compel the district judge to grant an injunction in a certain case to stay an execution. Thomas Hughes, J. Bellow, Jr., O. F. Hozey as sheriff1, recovered a judgment against the Louisiana State Marine and Fire Insurance Company, on a policy of insurance on the schooner Frederic Arnet.

This is an action on a physician’s account for services rendered in dressing the wounds and curing the defendant, who was severely hurt while on pal-ade the 22d February, 1839, by the accidental explosion of a cannon. The plaintiff alleges that the defendant is indebted to him for his attendance as a physician and surgeon in the sum claimed, and for which he prays judgment.

This is an action against the defendant, Cartwright, who resides or is absent in Texas, on his note for $830 91, with interest. The plaintiffs annexed an affidavit and propounded interrogatories to the firm of Peyroux, Arcueil & Co., and had them cited as garnishees, requiring them to answer touching property or effects of the defendant in their hands.

The plaintiff alleges, he is the owner of a slave, who absconded, and that the defendant, who is master of the schooner Molaeska, while lying in port, employed his said slave as a cook on board for several days, without his (plaintiff’s) knowledge or consent, and to his damage, in the loss of time and diminished value of said slave, in the sum of $1000.

The plaintiff admitted he was indebted to the succession of the late Francisco Tacón, in the sum of $11,000, which he was ready and desirous of paying, but he denied that the defendant was improperly authorized to receive it and give him a valid acquittance therefor.

<p>Appeal from the parish court for the parish and city of New Orleans.</p> <p>This case comes up under a proceeding in pursuance of the 5th section of the 28th March, 1840, abolishing imprisonment for debt. It provides “ that whenever two or more final judgments, each for a sum exceeding $300 shall have been rendered against a debtor and execution issued thereon and returned “ no property found,” and the plaintiffs shall unite in a peti- [552] tion setting forth under oath that they have reason to believe that the defendant has property or rights, assets, &o., within the State which may be made available to the creditors, the court shall order such defendant to show cause within ten days why he should not pay such judgments, or in default of such payment, why he should not make a surrender of his property to his creditors, &c.”</p> <p>The plaintiffs, D. Seghers and the Louisiana State Bank, alleged they were creditors of Joachim Oourcelle, by three several judgments, each for more than $300, on which executions issued and have been returned, no property found. They pray that the defendant he ordered to show cause within ten days why he should not pay the amount of said judgments, or in default make a surrender of his property to his creditors.</p> <p>made oath at the foot of the petition, “ that the facts contained in it were true; that he had reason to believe the defendant had property, rights or assets within the State of Louisiana, which may be available to his creditors.”</p> <p>The defendant excepted to the plaintiffs’ petition and affidavit. 1. That the debt of the hank had been settled by one Bernard De SaDos, and the suit and judgment discontinued so far as the bank was concerned.</p> <p>2. That the affidavit or oath is taken by but one of the plaintiffs, when the law requires both plaintiffs to unite in the oath; and also to state the reasons which induce them to believe the defendant has property or assets. He prays that the suit he dismissed.</p> <p>There was judgment on the exceptions setting aside the order, and dismissing the proceeding. The plaintiff, Seghers, appealed.</p> <p>1. The Act of 1840, requires that two judgments should have been rendered and the executions thereon returned no property found, and [558] that the plaintiffs should join in a petition, &c.; this is in the supposition that the judgments should he in favor of several plaintiffs, but when they are both in favor of the same plaintiff, the junction takes place ipso facto and such plaintiff is entitled to act alone. «</p> <p>2. Said Act of 1840, doesnot require that the sem’al plaintiffs (if several they are) should set forth under oath, &c.; but that they should join in a petition, and that this petition should be set forth under oath, &o., and it, therefore, suffices that their joint petition should set forth, &c., and that this petition be sworn to by either of the plaintiffs, because then and in such case, the joint petitions set forth under oath, &o.</p> <p>8. The right of action once accrued to the several plaintiffs, (if seVeralbe required,) and to each of them, cannot be taken from them or from any of them by the withdrawing of either of the plaintiffs from the suit.</p> <p>4. In Hillaudon v. Allard,, 2 La. Rep. 551, this court held that one may and can be subrogated to himself; why then should he not be considered as uniting with himself, when he invokes the only remedy the legislature has left him on taking away (since he obtained his two several judgments, and since they?./», had been returned no property found,) the remedy which was secured to Mm by the Insolvent Act of 1808, 2 Moreau’s Dig. 448.</p>

The plaintiff filed his petition and schedule, and prayed for the benefit of the insolvent law of 1808, for the relief of debtors in actual custody. Hathan Hicholls, one of the creditors, made opposition to the insolvent’s discharge on several grounds, and alleged, that he believed the debtor had omitted to put down on his schedule all the claims and property belonging to him, &c., and had not deposited his books in the clerk’s office, as he was bound to do.

<p>Appeal from tho court of the first judicial district.</p> <p>This is au action to recover the sum of $312, which ‘the plaintiff alleges he advanced to the defendant’s wife on the pledge of her jewels. He expressly states that the defendant authorized his wife to make said pledge, [554] and received the money on it, and which enured to his benefit. He also produces the wife’s receipt for the money and description of the articles put in pledge; and alleges they were destroyed by the burning of his house which happened through unavoidable accident.</p> <p>The defendant, after pleading the general issue, set up a reconventional demand for the return or value of the jewels put in pledge, which he described and estimated at $600. He avers he tendered back the money, and demanded he return of the pledge, which the plaintiff refused.</p> <p>The evidence is fully stated in the opinion of the court, and appears, to have been insufficient to make full proof of the identity of the pledge, of its actual and inevitable destruction by the burning of plaintiff’s house. And, on the other hand, there was no evidence of the tender.</p> <p>There was judgment for the defendant, and the plaintiff appealed.</p>

Appear from the city court of New Orleans. This is a proceeding against garnishees, under the 13th section of the Act of 20th March, 1839, to amend, the Oode of Practice. The plaintiff having obtained a judgment against one Francois Lafargue, caused execution to issue thereon which was returned no property found.

This is an aotion against the drawer of a hill of exchange, drawn at [558] Warrenton, the 23d December, 1836, on Brander, McKenna & Wright, of Mew Orleans, and hy them accepted; payable to the order of George Henderson, 373 days after date. The hill was duly protested for non-payment at maturity, and on the 1st Movember, 1840, this suit was instituted against Wm.

This is an action to render the defendants liable for the amount of a promissory note for $662, signed by B. Williams, and indorsed by R. J. Walker, negotiable and payable at the Planters’ Bank at Natchez, in the State of Mississippi, and placed in said hank for collection. Recourse against the indorser was lost by the neglect of the notary to make a record of his protest and notice to the indoi’ser.

<p>Appeal from the court of the first judicial district.</p> <p>This is an action on a promissory note for $1573 45, signed John Henderson & Oo., dated at Warrenton, (Miss.) 30th March, 1839, payable the 1st of May following to the order of plaintiffs. They allege that the defendant, William Henderson, is a partner of said firm, and resides at present in New Orleans, and they pray judgment for the amount of said note, interest and costs of protest.</p> <p>The defendant pleaded his domicil and averred that his residence was in the parish of Oarroll. The cause was tried on these pleadings and issues, and also on the evidence taken in the preceding case of Williams v. Henderson.</p> <p>There was judgment for the plaintiffs, and the defendant appealed.</p>

This is an action against J. H. Kraft, to recover the sum of $21,371, which the plaintiffs allege is justly due them; and that said Kraft resides permanently out of this State, but has certain property, effects, rights and credits in the han&s of James R. Sterrett, Esq., which they pray may he attached, and that Sterrett be cited as garnishee to answer interrogatories.

[568] This is an action to render the defendant liable as sheriff, for an escape of the plaintiffs’ debtor after he was arrested on mesne process. This suit was instituted the 16th October, 1838, in which the plaintiffs allege that the firm of Stinson & Campbell sued and arrested their debtor, E. W. Pennington, on the 15th of October, 1837, for the sum of $2002, and that while he was in custody, he was permitted by the negligence of the defendant to escape and go at large.

An application for a mandamus. This is an application for a mandamus, commanding the judge of probates for the oity and parish of New Orleans, to admit and order the will of Oharles McManus, deceased, opened and probated in the State of Kentucky, to be unregistered and made executory here, without appointing a dative testamentary executor and attorney for absent heirs.

This is an action by Municipality No. 2, to compel the first municipality to change the direction of its wharf, built at the divisional line between the two municipalities. The line of division running through the middle of Oanal-street, strikes the levee in an oblique direction, extending up the river, and by continuing the wharf in this direction it obstructs and impedes the first and second wharves built in the second municipality.

Avptt.at. from the commercial court of New Orleans. This is an action on two hills of exchange of the following tenor : [576] $2000. “New Orleans, May 2d, 1839. “ Sixty days after sight of this first of exchange, second unpaid, pay Benjamin Whitney, or order, $2000; value received, and charge the same to account of “ GILLINGHAM & OO.” “ To L. H. Giixingham, i “ May 15, 1839.

This is an action to render the defendant liable to the plaintiff for the amount of a hill of exchange which was sequestered in the suit of Diggs, Hob-son & Oo. against him, hut final judgment being rendered in his favor, the bill was ultimately decreed to he his property.

<p>Judgment affirmed with damages as a delay ease. — 8 L. 101, and eases there noted.</p>

This is an action by Dufour & Oo. acting for the late firm of Dufour fréres, on a promissory note signed by the firm of P. Pareé & Meffré. Pareé having failed and only part of the note and debt being paid, this suit was instituted against the defendant as a separate partner. There were some exceptions filed and a show of defence made at first, which vanished at the trial. But the defendant appealed from judgment against him.

This is an action against the maker and indorser of a promissory note, to which there was no defence. After final judgment the defendants appealed. There was no defence in this court. urged the affirmance of the judgment with ten per cent, damages.

<p>This is a suit against the defendant as one of the makers of a note signed ’Hodge and Merrifield.</p> <p>There was an exception or plea of misnomer, that the defendant was sued as Andrew S. Merrifield when his name was ALden S. Merrifield. The plaintiff amended, made service of new citation and had judgment. The defendant appealed.</p> <p>It appears all the evidence was not taken down.</p>

<p>Judgmont confirmed with maximum of damages. — 8L. 101, and cases there noted*</p>

<p>Appeal for delay and judgment affirmed with the maximum of damages. — 8 L. 101 and eases there noted.</p>

This is a petitory action. The plaintiff alleges he is the owner of a female slave named Lydia, worth $800, and which he shows to he in possession of the defendant, who refuses to deliver her up. He prays judgment for said slave and her hire at $150 per annum. The defendant, widow Javier, pleaded the general issue and set up several other matter's in defence.

This is a suit against the indorser of a pi-omissory note. The defendant admitted his signature and pleaded the genex’al issue. It was proved that the note was duly protested for non-payment, and pex'sonal notice given to the defendant. From judgment against him he appealed. insisted on the affirmance of judgment with ten per cent, damages.

The plaintiff claimed the sum of $12,002, from the estate of the late Prosper Marigny, for the balance of the price of a tract of land, and an account annexed for advances and supplies, sold and furnished to the decease,!, shortly before his death. The widow and heirs of Marigny and her second husband were made parties, and in their absence, they were cited through their attorney in fact H. B. Le Breton, who simply pleaded the general issue.

<p>Where the notary states ho demanded payment of F. F,, the attorney in fact of the drqwer the notary’s statement is no evidence of the agency. It should have been proved on the trial like. any other fact. — 131>. 342, and cases there noted.</p>

This suit commenced by attachment. On the 5th of May, 1840, the plaintiffs instituted, suit on two promissory notes of A. Patton & Oo., who are alleged to be residents of Tennessee, and attached 138 bales of cotton, and a hogshead of tobacco, in the hands of Maunsel White & Oo., of New Orleans. On the 25th November, 1840, James Vaulx and Wm.

This is a petitory action. The plaintiffs who are the children and heirs of the late Madame Guerin, formerly Marguerite Ohauvin Delery, now [591] deceased, sue to recover a female slave named Oelestine and her daughter Fanny, which they allege they inherited from their deceased mother, and which are in the possession and claimed by the defendant Bagneries.

The plaintiffs having arrested the defendant, Molan, and held him to bail, obtained judgment against him for the amount of their demand, issued execution the 6th May, 1840, which was returned the 10th June, following, no property found. Before judgment, to wit, on the 16th April, 1840, the act abolishing imprisonment for debt was promulgated.

<p>Parol evidence is admissible to show by the practice and laws of another State, ft is not necessary to present a note for payment, at the place designated therein, in order to maintain an action against the maker. — See Ante, 513; 2 It. 327.</p> <p>It is only the written or statute laws of a State, that cannot be proved by parol, a certified copy is the best evidence.</p>

<p>Real estate or immovable property, although purchased in the name of a firm, becomes th a joint property of the individuals composing the firm, and not partnership property, liable first to the partnership debts. — 3 L. 494.</p> <p>Where real estate is paid for with partnership funds, it creates an individual indebtedness of the partner to the firm, but the partnership does not thereby become the owner, or confer on the creditors of the firm any right or privilege on its proceeds, in preference to individual creditors*— See 3 L. 497.</p> <p>The individual share or interest of a partner in a real estate will form a fund in the hands of his syndic, liable to the claims of all his creditors, without distinction.</p> <p>Partnership creditors are privileged over individual ones, on the partnership effects; but the latter have no such preference over the former on the separate and individual property surrendered by the insolvent member of a firm. — 10 L. 345 (III.), and cases there noted.</p> <p>The liquidating partner of a firm has no right to dispose of and control the undivided interest of the other partner in real property owned jointly.</p>

This is a redhibitory action to rescind the sale of a negro woman and her two small children on the ground of redhibitory defects and diseases in the woman, and to recover back the price paid.