Volume 19 — Louisiana Reports

Eastern Dis APPEAL PROM THE COMMERCIAL COURT OP NEW ORLEANS. The Pontiff3 sue as the freighclrs of the Barque Jane, belonging to the defendant, to recover a large sum which they . allege they have laid out and expended on said vessel, after shipping on hoard of her 1100 hales of cotton, in consequence of her unseaworthiness at the time of shipment.

East-ebb- Dis. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. This is an action by the syndic of the creditors of one W. W. Stewart, an absconding and insolvent debtor, to set aside two sales of certain city lots and improvements thereon, made to the defendant with a knowledge of the vendor’s insolvency, and to recover back said property for the benefit of the creditors. , The defendant pleaded the general issue, and denied specially every allegation in the petition.

Easteilit Dis. APPEAL PROM THE COMMERCIAL COURT OE NEW ORLEANS. This is an action to recover damages from, the defendants on the alledged ground of having sold to the plaintiffs a large lot of cotton, being upwards of one thousand bales, as good sound merchantable cotton, for a full price, according to samples exhibited; when in fact more than one hundred bales were not of the quality represented, but had been falsely packed, and plated on the outside with good cotton.

<p>EastebN Dis.</p> <p>AEÍEAE PROM THE COUOrERCIAE COURT OE NEW OREEANS.</p> <p>This is an action on tbe folie enchére, to recover the difference between the first and second bids, made by the defendants on 300 shares of Gas Light Bank Stock.</p> <p>In obedience to an order of the probate court of New Orleans, made in the succession of Wm. Nott, deceased, the Register of Wills adyertised sundry bank stocks for sale. The terms published in the auction bills were “six months credit for approved endorsed notes, or payment vñll be received in debts due by the succeesion, or by the firm of Nott & Co</p> <p>The defendants bid off and became the purchasers of 300 shares of the stock of the Gas Light Bank, at $25 50. After the sale they were told, one of the conditions was, that the purchaser should assume a stock note of $15 per share in part payment of the purchase. The defendants objected and disregarded this new condition, as it was not published in the advertisements or auction bills ; but said they were ready to comply by paying in claims due by the estate.</p> <p>On the refusal of defendants, a re-sale was made at their risk, and they became the purchasers again, through R. Curell, their agent, at $20 50 per share on the new terms, which were duly advertised.</p> <p>The plaintiffs allege, they have lost $1614 67 on the difference between the first and second sales, for which the defendants are liable.</p> <p>The Register of Wills, who made the sales, testified that when the sale was about to commence, he proclaimed from the stand m an audible voice, that the purchasers of hank stock ,, , , . „ would be required to assume the stock notes, m payment or the stocks purchased by them. This condition being different from those contained in the handbills distributed at the first sale, the defendants disregarded it.</p> <p>There was judgment for the defendants, and the plaintiffs appealed.</p>

<p>Easters Dis.</p> <p>APPEAL PROM THE COMMERCIAL COURT OP NEW ORLEANS.</p> <p>This is an action on the folie enchére, to recover the differ-encebetween two bids on three hundred and fifty shares of Gas Bank stock, adjudicated to the defendants. At the first sale they bid $24 per share, but refused to comply with some new conditions imposed at the sale. It was resold at their risk and purchased by their agent for $20 50. They are sought to be charged with the difference. This case is decided on the same principles and facts of the preceding one, between the same plaintiffs and Oakey et al. i</p>

<p>Easters Dis.</p> <p>APPEAL PROM THE PARISH COURT POR TIIE PARISH AND CITY OP NEW ORLEANS. x</p> <p>This is an action by an agent to recover certain commissions on monies and notes collected and received in payment, for his principal, in the absence of the latter under written agreement.</p> <p>The defendant agreed to give the plaintiff five per cent, commission on all his collections, but avers it was never intended that a commission should be charged on monies collected through bank, or on the amount of promissory notes received in payment of other debts. On this ground the defendant refused to allow the plaintiff’s account for commissions.</p> <p>The cause was submitted to a jury who returned a verdict for the plaintiff, and from judgment rendered thereon the defendant appealed.</p>

<p>Eastem- Dis.</p> <p>ON AN AiriICATION TOE A EE-HEAEING.</p> <p>This case was decided the preceding month; see 18 La. Reports, p. 405.</p> <p>applied for a re-hearing and correction of the former judgment, especially that part of it giving ten per cent, damages as for a frivolous appeal, when none were asked for by the appellees.</p> <p>The counsel urged that the court in its zeal to prevent garnishees from manceuvering to keep money of others in their hands without interest, had, he humbly conceived, fallen into a much greater abuse, that of violating positive law.</p> <p>The court is pleased to make the counsel cut the ridiculous figure of assigning for error in this case, that which had occurred in another. The judgment appealed from in which the errors were assigned and this court called on to revise, was one of Lee & Hardy vs. Ward, Moffatt & Co.,, defendants. When the counsel suggested that the inferior court erred in rendering judgment against the defendants, what defendants did he mean? Surely not the defendant, J. E. Palmer ; hut only the defendants named in the judgment appealed from, and which should have undergone revision.</p> <p>The counsel then went into a critical and elaborate discussion of the merits and proceedings had in the intervention of Elliott & Worley, who claimed the cotton or its proceeds in the hands of the garnishees, and to show that the latter were justified in keeping the money in their hands and were bound to litigate the plaintiff’s demand.</p> <p>The counsel concluded by showing that the ctjurt erred in awarding ten per cent, damages. The original judgment already gave eight per cent, interest. The universal practice of the court was not to give damages when the judgment bore interest, or allowed more than five per cent.; 9 La. Rep., 416; 11 Idem, 228.</p> <p>No damages will be allowed when the evidence is contradictory ; nor when the appellant honestly thought he was entitled to relief or had a legal defence ; 4 Martin, N. S., 619; 5 Idem, 664; 7 Idem, 367. The court has not the power of awarding damages in this case. It is not even a question of legal or other discretion to grant or refuse it. Whatever power the court possesses is derived from the article 907 of the Code of Practice ; and that only allows its exercise when the appellee claims it in his answer. No such claim is set up in the appel-lees’ answer in this case. They or their counsel did not consider themselves entitled to damages, or at least they have refrained from claiming any.</p>

EasterN Bis. APPEAR PROM THE PARISH COURT POR THE PARISH AND CITY OP NEW OREEANS. This is an action on a policy of insurance, to recover the amount of a loss by fire, on property insured in the office of the defendants. The case turned entirely on the construction to be given to a clause in the policy, providing against any assignment or transfer of the property insured, on pain of nullity, without the consent of the insurers.

<p>Basteen Dis.</p> <p>APPEAL EBOH THE COURT OE PBOBATES POE. THE PARISH OP ST. HELENA.</p> <p>This is an action by a portion of the heirs of the succession of Wm. Kendrick, deceased, praying that his widow, the defendant, he removed' from her office as administratrix of said succession, on account of her great delay in the settlement and payment of the debts of the same, and for her incapacity to administer said estate.</p> <p>The defendant, by her counsel, excepted to the petition, because all of the heirs of the succession of Wm. Kendrick did not join in the action ; setting forth the names of those who were omitted.</p> <p>The judge of probates, on hearing the parties, sustained the exception, and dismissed the suit. The'plaintiffs appealed.</p>

Easteiot Dis. APPEAL PB.OM TIIE COIOIEBCIAT. COTJET OP IIW OELEASS. ' This case arises under the insolvent laws of 1808, for the relief of debtors in actual custody.

E ASTEEN DlS. APPEAL EROM THE COURT OJ? PROBATES EOR THE PARISH 0E ST. HELENA. This is an action by the forced heirs of Wm. Kendrick, deceased, against the widow in community, for a settlement and payment of the community debts ; to recover from her separate property of their deceased ancestor; and also for a partition of said estate.

Eastuks- Drs. APPEAL FROM THE PARISH COUNT EON THE PARISH AND CITY OF NEW • ORLEANS. This is an action to recover the sum of $1000, the value of a slave, which the plaintiff alleges the defendant carried away from the State of Louisiana in the steamer Henry Clay, on or about the 10th January, 1837, whereby he was totally lost. The plaintiff had the steamer Henry Clay sequestered, and claims a privilege thereon for the pnce and value of his slave.

<p>Eastern Dis.</p> <p>ATOEAE HUM THE ‘COJOIEECIAE COUHT OE MEW OEEEAMS.</p> <p>This is an action on an open Policy of Insurance taken out of the office of the defendants, by Lambeth & Thompson,. commission merchants in this city, for the benefit of whom it might concern. They were the consignees of 61 hogsheads . of Tobacco, shipped from Hatcher s landing on Green Kiver, in Kentucky, on board of the flat-boat Columbus, the begin-ing of January, 1838, and wrecked before getting out of-said river. The boat was hauled ashore at the first convenient landing place, the tobacco taken out and’ sold in a damaged state. The captain and crew made their protest, notified the owners, (the plaintiffs) who abandoned as for a total 'loss, to tlje insurers, (defendants.)</p> <p>The plaintiffs allege the tobacco was covered by this policy and worth $60 per hogshead. They claim the sum of $3660 with interest; and $284 for money laid out and expended in saving the tobacco from the wreck for the benefit of the defendants. They pray judgment for these sums.</p> <p>The defendants admitted the execution of the policy sued on, and pleaded the general issue: They averred the sale of the tobacco by the master of the boat was illegal and unauthorized, and that they are in no manner liable.</p> <p>There was a mass of testimony taken on the trial which is detailed in the opinion of this court, in relation to all the points or grounds of defence.</p> <p>The jury returned a verdict of $3944 with legal interest. The plaintiffs remitted the sum of $1074 25, which left the sum of $2869 75, and for which judgment was rendered, with legal interest from judicial demand.</p> <p>The defendants appealed.</p>

Easteh.it Dis. Olí AIT AmiCATIOlT Eon A RE-HEAKIITG. suggested there was error in the judgment of the court, rendered in this case, in allowing interest. They asked for a re-liearing and a revision, of the judgment in this respect; and cited in support'of their application the following authorities : C. Px. 554 ; 7 La. Rep., 134, 596,- 8 Idem 572; 11 Idem 236.

Easteek Dis. APPEAL moai THE COAOIEItCIAE COURT OP KÍW OBIEAUS. This is an action on a policy of insurance taken out of the office of the defendants, by Lambeth & Thompson, in the usual form, declaring on its face to be for the benefit of whom it may concern.

Eastern Dis. AEPEAL EROM THE COMMERCIAL COURT OR NEW ORLEANS. This is an action to recover of the insurers 'the value of sixty-three hogsheads of tobacco, estimated at $50 per hogshead, which is alleged to have been covered by an open policy of insurance taken out of the office of the defendants by Tiernan, Guddy & Go., commission merchants, for the benefit of all whom it might concern.

<p>EastbuN Dis.</p> <p>APPEAL PROM THE COMMERCIAL COURT OP NEW ORLEANS.</p> <p>This suit commenced by attachment. The plaintiffs who reside in the State of Mississippi, allege the defendants, Lawrence and Cattling, also non-residents, are justly indebted to them in the sum of $4000, with interest, and that their debtors have property within the jurisdiction of the court, which they pray may be attached ; and that they have judgment for the amount of their said debt, to be satisfied from the proceeds of such property as they may find belonging to their said debtors.</p> <p>An attorney to represent the absent defendants was appointed, who put the cause at issue, when Messrs. Elliott & Wor-ley of Mississippi, intervened, claiming one hundred and eighty-one bales of the cotton, which had been attached as the property of the defendants, to belong to them.</p> <p>The contest was between the plaintiffs and intervenors. There were several depositions read on the trial, taken in Mississippi, touching the ownership' of the cotton. One of the most material items in the evidence adduced on the trial, is the following note from one of the defendants.</p> <p>“ Holmes Co., February, 1840.”</p> <p>“Messrs. Elliott & Worley, orR. A. Moffett,</p> <p>Will ship my cotton at Parker’s Landing, to Ward, Moffett & Co., New Orleans, when directed by R. A. Moffett, when so to do. My cotton is marked H.”</p> <p>“JAMES CATTLING.”</p> <p>There was judgment dismissing the petition of intervention, , , _ and the intervenors appealed.</p>

Easters' Drs. APPEAL PROJI TIIE PARISH COURT POR THE PARISH AND MTV OP NEW ORLEANS. This suit is in the nature of a .petitory action in which the plaintiffs seek to be confirmed in their title to and quieted in possession of the Canal Gravier and Basin, and also a square of ground called Place Gravier; situated in Poydras street near and at its junction with Baronne street, in the city of New Or- ■, . leans.

Easters Dis. APPEAL PROM THE COURT OP THE PIHST JUDICIAL DISTRICT. This is an action to recover the sum of $417 17, the amount of damages on a protested hill of exchange, accepted hy them and paid hy the defendant as endorser, hut which they subsequently paid and refunded to him. They allege he has received the amount of damages on said hill twice ; the same having-been refunded to him hy the Bank of Mobile, the holder of said hill.

Eastern Dis. ATPEAI PROM THE CITY COURT OP NEW ORXEANS. This is an action against the maker of a promissory note, duly protested, and to which no defence was set up. Judgment by default was made final against the defendant and he appealed. ex parte, prayed the affirmance of the judgment with ten per cent, damages.

<p>Easterx Dxs.</p> <p>AMCEAE EHOM THE PARISH COURT TOR THE 1’ARISH ASTD CITY OE KW OHLEAITS.</p> <p>This is an action against the defendant as maker of one, and endorser of another note, given as part of the price of land. The plaintiff became bound with the defendant; paid and took up these notes, and now seeks to recover the amount of them from the latter.</p> <p>The defendant pleaded the general issue, and set up a failure of title, and danger of eviction from the property for which the notes were given, &c.</p> <p>There was judgment against him, and he appealed.</p>

Eastern Dis. irmi rnox the court oe the eirst judicial district. The plaintiffs allege, their ancestor J. B. Holland was the owner, at his death in 1814, of a large square of ground fronting on Tchoupitoulas street, and extending from the opposite side to the water’s edge of the river Mississippi, in NewOrleans.

Easter* Bis. APPEAL THOM THE COTJIIT OF THE FIBST JUHICTAI DISTRICT. This case comes up on a rule taken by Wm. M. Duncan & Sons, who claim to be creditors of the insolvents, on the syndic requiring him to pay them their equal share of the funds, pro-rata with the other ordinary creditors who have been paid.

<p>Judgment affirmed; the record "being imperfect, so as to preclude an examina-tion of tlie case on tlie merits.</p> <p>Signatures to tlie notes and checks sued on, are admitted by the plea of the general issue.</p>

<p>EASTERN DlS*</p> <p>APPEAL FROM THE COMMERCIAL COURT OF NEW ORLEANS.</p> <p>This is an action against the endorser of a promissory note, grounded on an attachment. The defendant set up several matters in defence. There was judgment against him and he appealed.</p>

Eastern Dis. APPEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OP NEW ORLEANS. This is an action by a printer, instituted the 15th March, 18B7, to recover from the defendants $ 1100, the price of a printing establishment, which he had sold them; also $4S4, for wages due him as a printer while in their employ, and damages. He had the printing establishment sequestered.

<p>The appeal will be dismissed when there is nothing by which the judgment below can be tested.</p>

Eastern Dxs. APPEAL I'llOM TIIE COURT OP TIIE FIRST JUDICIAL DISTRICT. This case comes up on a suit to collect the arrearage of taxes due on defendant’s property in the city of Lafayette according to the assessment made under the laws relating to the subject, and vesting the power to lay and collect taxes in said city council. The plaintiffs show that said taxes were duly assessed, due notice given when they became due and payable, and proper demand of payment.

<p>Eastehn Dis.</p> <p>APPEAL FBOM THE COUKT OF THE FIHST JUDICIAL DISTMCT.</p> <p>This is an action instituted by three of the creditors of William Saunders, alleging he is an absconding insolvent debtor, and is justly indebted to them in the several sums alleged and sworn to in their affidavits. They pray for a forced surrender and sequestration of all their debtor’s property.</p> <p>A meeting of creditors was held and theii proceedings returned into court.</p> <p>Almost at the same time of instituting these proceedings Bedford & Beck commenced an attachment suit against the absconding debtor. They also made opposition to the homolo-gation of the proceedings of the creditors ; which being overruled, and the proceedings confirmed and homologated, the opponents appealed.</p>

Eastern Dis. APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT. The defendants in this case had adven their notes for a large ° property called the “ Rope Walk,” in New Orleans, belonging to the Balls, and sold by them to effect a partition. It was alleged there was a defect in the title of one of the late owners and that her interest had not been legally divested.

Easters? Dis. APPEAL PBOM THE COMMERCIAL COURT OP MEW ORLEANS. This is an action to recover the sum of $04)306, from Mis. Maria Holliday, widow of the late John R. Holliday,- on account of a debt due by him in his life time, to the firm of Wm. Kenner & Co., and for which he gave his notes in 1826, secured by mortgage on a large sugar plantation and slaves.

<p>Eastern Dis.</p> <p>ON AST ATDLICATION TOR A WRIT OB rROIIlBITION, Ilf THE MATTER 03? THE OITT BANK OE NEW ORLEANS VS. D. T. WALDEN.</p> <p>This cáse comes up on a rule taken by D. T. Walden? on the District Judge of the first judicial district, to show cause why a writ of prohibition should not issue, commanding him to abstain from all further proceedings in the case of the City Bank of New Orleans, against D. T. Walden.</p> <p>The petitioner, Walden, alleges that on the 26th of October, 1840, he commenced suit against the said City Bank to annul certain mortgages given by him to the Bank, on the ground that they were null and void: and that he prayed for and obtained an injunction against the Bank, to prevent it from taking out an order of seizure and sale, until the suit for the annulment of said mortgages could he tried and finally decided. That, on the 10th November following, the Bank took a rule on him to show cause why the injunction should not be dissolved and set aside; which rule, on hearing the parties, was made absolute, and judgment rendered setting the injunction aside; from which, this petitioner took a suspensive appeal on giving hond with a surety in the sum of $6000. That on the 8th December, 1840, the City Bank applied for an order of seizure and sale, which was refused hy the District Judge ; and from this refusal the Bank appealed, which is still ,. pending.</p> <p>^10 petitioner further shows, that after this appeal was taken hy the City Bank, his injunction suit came on for trial . . and a judgment of non-suit was rendered against him, from which he took an appeal within the time required by law to stay execution, and gave bond and security for the amount of the judgment and one half over, in pursuance of the order of court. This bond was for only $250, the amount necessary to cover costs. That afterwards, to wit: on the 25th January, 1841, the District Judge granted an order of seizure and sale, by endorsing the same on the petition, on which he had previously refused said order. It is against this order.of seizure and sale, the petitioner prays a writ of prohibition to the District Judge to abstain from all proceedings in the matter until the further order of this court.</p> <p>The District Judge showed cause and set up various matters against the application. Among others he considered the judgment of non-suit as disposing of the injunction, and that the writ of seizure could properly issue; especially as he considered the appeal taken therefrom as not suspensive; the appeal bond being only for $250, and merely to cover costs, when the amount of the debt or matter in dispute exceeded $200,000.</p> <p>2. The petitioner h.as shown no legal grounds for a writ of prohibition in this case. His remedy, if he is injured or aggrieved by the order of this court granting the writ of seizure and sale, is by an appeal from it. It would be assuming original jurisdiction in the Supreme Court, to take cognizance of the case and award a writ of prohibition, when the remedy of the party is by appeal; and when they can extend the relief sought, in the exercise of their appellate jurisdiction, and to which, it is respectfully urged, they are restricted by th® constitution.</p> <p>The District Judge also appeared in propria persona, and argued against the prohibition.</p>

Eastern- Vis. ají ArrucATiojf von a writ or PRonniiTiox, in the matter or lARTIGUE VS. IEET & MOUTH. This case arises on an application for a writ of prohibition to the Judge of the first judicial district requiring the piaintiffin cxecution, Lartigue and the sheriff executing it, to abstain from and stop all proceedings under the judgment and execution, until the defendants therein, Peet & North, can he heard on appeal.

jj.a steek Bis APPEAL frROSC THE PARISH COURT FOR THE PARISH AND CITT OS NEW ORLEANS. This is an action instituted by Wm, Flower, a partner of the firm of W. & D. Flower, against the defendant, for the settlement of various transactions had with said firm under a special agreement between the parties in 1823, by which said defendant agreed to make advances to the firm and receive one third of its profits.

Eastern Dis. ON A RE-HEARING-, being dissatisfied with the rejection of several material items in the defendant’s account, prayed the court for a re-hearing. representing the plaintiff in part, who was also dissatisfied with the judgment, submitted various points on which a re-hearing was asked, in cáse a rehearing was granted to the defendant.

<p>Eastern Dis.</p> <p>APPEAL FRO .11 THE COURT OF THE THIRD JUDICIAL DISTRICT, TOR THE PARISH OF EAST BATON ROUGE, THE PARISH JUDGE PRESIDING.</p> <p>On the 29th May, 1821, Fulwar Skipwith presented his petition with a hilan or schedule annexed, containing a detailed statement of his debts and claims of his creditors, also assets, property and effects, of every kind, which he surrendered for the benefit of all his creditors, and prayed for the usual stay of proceedings, and for general relief under the insolvent laws relating to voluntary surrenders.</p> <p>Among the creditors placed on the hilan were Wm. Russell of Great Britain, by notes and mortgage for $11,500 ; amount due the heirs of Joshua Follansbie of Massachusetts, deceased, with interest $2,100. Due Louisiana State Bank by note and mortgage $2,400; due Mrs, Louisa V. Skipwith, $26,000 being the supposed proceeds of 640 acres of land, &c., and 11 slaves, being her property and sold to Josias Gray, with other slaves of F. Skipwith, on the 23d October, 1819.</p> <p>There was a meeting of creditors who appointed John Buhler, Esq. of Baton Rouge, syndic. On the 11th June, 1832, the syndic filed his tableau of distribution. The amount for distribution in hands of the syndic was $11,462 and $4,375 for future distribution. The privileged claims amounted to $2,166. Russell’s heirs by special mortgage on proceeds of property sold were put down for $8,209; leaving a balance of their claim of $14,538 for which they are placed as ordinary creditors.</p> <p>Mrs. L. Y. Skipwith was placed as a creditor by special mortgage for $748, as having been paid by her to the Bank of Louisiana; and as an ordinary creditor for $5,263 paid by her to the heirs ofi^oshua Follansbie; and also for $26,000 as due her in her owii right.</p> <p>Russell’s heirs and Mrs. Skipwith both made opposition to the tableau, and also to each other’s claims. There was some other oppositions, but the two first mentioned are all that are material to be stated as the case now comes before this court. The nature of the claims of each party, the evidence produced, and the questions of law raised thereon are fully stated in the opinion of this court. The debt or claim of Russell’s heirs has been severely contested in the trial of the present case, although liquidated and settled by a judgment of the court of the last resort. See the case of Rawle for the use of Russell vs. Skipwith and wife, reported twice in 8 Martin N. S. 118, 407. It was three times before the Supreme Court. The first opinion and .judgment given, which was at the June term, 1S28, -has never been reported or published. It is now published for the first time, as an omitted case.</p> <p>There was judgment confirming and homologating the tableau as relates to the heirs of Russell; also, for the mortgage claim of Mrs. Skipwith for $748, and her ordinary claim of $26,000; but rejecting her claim in right of and as subrogated to Follansbie’s heirs. She appealed.</p> <p>insisted that the judgment of Russell’s heirs was not res judicata in this case. F. Skipwith was no party when it was rendered; having made a surrender. Mrs. Skipwith was. not competent to defend the suit, or take an appeal without tho authorization of her husband or the judge, and had neither.</p> <p>2. The appellant was subrogated to Follansbie’s right of mortgage, having paid his debt, and should he preferred for the amount of this claim.</p> <p>contended that Mrs. Skipwith and her husband were in court when he-failed ; and she was competent to carry on the defence of the suit. She had bound herself in solido for tito debt, and renounced her right of mortgage. Judgment was properly rendered against her for the entire debt. She cannot contest the validity of either the judgment or the claim settled by it.</p> <p>2. The debt paid to Follansbie’s heirs was one for which Mrs. Skipwith was already bound to pay, and she cannot make any claim on the property surrendered, either by subrogation or otherwise.</p> <p>3. There is no legal evidence or proof of her claim against the estate of her husband. Her opposition should have been rejected, and the claim erased from the tableau.</p>

[an omitted case.] Easteen Dis On the 21st May, 1827, Wm. Rawle of Philadelphia to the use of W. Russell, of Great Britain, sued F. Skipwith and wife for a debt of $11,500, secured by mortgage, in which the wife renounced her rights on the mortgaged property, in favor of the -mortgagee.

<p>Bastee» Dis.</p> <p>APPEAL FROM THE COMMERCIAL COURT OP NEW ORLEANS.</p> <p>This is an action by tbe holders of a bill of exchange for $5543 14, drawn hy Harper, Carpenter & Co., of Mississippi, the 4th March, 1837, payable 60 days after date, drawn on and accepted by Messrs. Bier & Steever, of New Orleans, in favor of and endorsed by Summers & Watt, residing at Grand *n Mississippi. The suit was commenced by attachment, the 5th December, 1839, against Hugh Watt, one of the en- . . ° dorsers; and also against Bier & Steever, the acceptors, and judgment prayed against all of them in solido, for the sum of $4,848, the balance due on said bill, and interest and costs, Nugent, Turpin & Watt were made garnishees.</p> <p>The defendant, Watt, admits the endorsement on the bill, and pleads a general denial. He avers, thát the drawers of the bill sued on, placed in the hands of the plaintiffs, as collateral security, a bill of exchange, drawn by R. B. Wiggins on and accepted by W. P. Ringe, and endorsed by Harper, Carpenter & Co. and on C. C. Mayson, due in Gallatin, Mississippi, on the 1st January, 1838, for $3316 53, and in consideration thereof the plaintiffs gave further or a prolongation of time to the drawers, without the consent or knowledge of the endorser, and by which he is discharged, fee.</p> <p>The cause was tried on these pleadings and issues principally, and against Watt alone; Bier & Steever, not being cited, did not appear. There were several bills of exception to the admission and rejection of witnesses and of evidence, which are fully stated in the opinion of the court.</p> <p>There was judgment for the plaintiffs for the sum claimed as due on the bill, and for damages, and interest and costs. The defendant appealed.</p>

Eastern Bis, OB' A ItE-HEAIUKS. Thos. Slidell, for the defendant and appellant, prayed a re->hearing in relation to the point involved, by the offer of the testimony of Harper & Carpenter, the drawers of the bill sued on who are expressly excluded on the score of incompetency by the statute of March 27, 1823.

<p>Where the owner of property places it in the hands of a third person, who makes advances on It by drawing a bill, the drawee and consignee cannot appropriate it to the payment of his debt against the owner, until the advance is paid.</p> <p>Drawees, who are under no obligations to accept a draft, bind themselves to pay it, when they receive the goods or property on which it is drawn.</p> <p>The acceptance of a draft, merely hy the receipt of the bill of lading, and the property on which it is drawn, completes the obligation of the drawee to pay it.</p> <p>Where the owner of property places it in the hands of a third person who makes advances on it by drawing1 a bill, the drawee and consignee cannot appropriate it to the payment of his debt against the owner, until the advance is paid.</p> <p>Drawees, who are under no obligations to accept a draft, hind themselves to pay it, when they receive the goods or property on which it is drawn.</p> <p>* The acceptance of a draft, merely by the receipt of the bill of lading and the property on which it is drawn, completes the obligation of the (drawee to pay it,</p>

Eastern Dis. ON A ItE-HEAItlNG. Grymes, for the defendants, applied for a re-hearing in this case, which was granted. Strawbridge, on the part of the plaintiffs, urged that the decree should be so amended as to allow'interest on the debt sued for, from the protest of the bill. He cited article 1929 of the Louisiana Code, which says, “ interest is the damage due for delay in the performance of an obligation to pay money.

Eastern Du. APPEAL PROM THE COMMERCIAL COURT OP NEW ORLEANS. This is an action on a policy of insurance, to recover $3720, as the value of 62 hogsheads of tobacco, at $60 per hogshead, 58 of which the plaintiffs allege, they shipped at Greensburg, on Green River, in Kentucky, in the flatboat called the Lady Marshall, whereof James Saunders was master; the boat and cargo bei ig co.R igned to Lambeth & Thompson, commission merchants in New Orleans.

<p>Easteem Dis.</p> <p>APPEAL EBOM THE COUET OE THE EIBST JUDICIAL DISTBICT.</p> <p>This case arises on an opposition and injunction obtained by the defendants, against an order of seizure and sale sued out by the plaintiff for the bálance due on certain lots, and on which a mortgage was retained to secure payment of the price. The defence is that there was a large sum due on the lots for paving streets and side walks, which they had to pay but for which the plaintiff was bound.</p> <p>There was judgment sustaining the opposition, perpetuating" the injunction for $27 55; but dissolving it and directing the seizure to go on fox the balance of the debt due. The defen-. dants appealed. •</p>

<p>The adjudication is the completion of a sale, so as to invest the purchaser as owner, and the right to possess the thing sold.</p> <p>So, the adjudication entitles the vendor not only to damages for non-compliance but to an action for the price.</p> <p>The sale is perfect between the parties and the property is acquired to the purchaser on an agreement between them, as to the object sold, and the price, even without delivery.</p> <p>The purchaser may retain the price, when he is in danger of eviction from a previous claim on the property, except where he has been informed of it before the sale. A claim resulting from an act of the legislature, comes within the exception, as ignorance of it cannot be pleaded.</p> <p>A claim of the draining company on land, for its improvement, is not adverse or a disturbance of possession.</p> <p>Purchasers cannot complain of the failure of the vendor to pass an act of sale, when it was caused by their own acts, in directing the notary not to give up their notes.</p> <p>The adjudication is the completion of a sale, so as to invest the púnchasel-as owner, anti the right to possess the thing sold. ,</p> <p>So, the adjudication entitles the vendor not only to damages for non-compliance, but to an action for the Pric8-</p> <p>The sale is Perfeet between the parties and the property is acquired to the purchaser on an twee^them ^as soid^and^tho jjut°ddWMyIlt51"</p> <p>The pnrohas-the price,\vhen he is in danger a^n-evious eiaim except where Se has been infer-med ot it before the sale. A eomesCS1SwUhm the exception, as ignorance of it cannot be</p> <p>Drainin™ pany on land, ment, is no^ad-bance of posses-</p> <p>Purchasers cannot complain of the failure of the vendors to pass an act of sale, when it was caused by their own acts, in directing the notary not to give up their notes.</p>

E^tskst^Dis. AiPEAI. MIOM THE IAMBI! COURT TOR THE IARI8H AKD CITX Or STEW OHLEANS, This is an adion to recover a balance, which the plaintiff alleges is due him by the defendant, as a clerk and crier in his auction establishment, amounting to $8520,83.

<p>Easters- Dis.</p> <p>APPEAX PROM THE COURT OE THE EÍRST JUDICIAL DISTRICT.</p> <p>This case comes up from a judgment which dismisses the opposition of Thomas & Le Carpentier to the appointment of a syndic by the creditors of the insolvents, because it was not sworn to or supported by the oath of the opponents. The opposing creditors appealed and pray a reversal 'of the judgment.</p>

Eastern Did. APPEAL FROM THE COMMERCIAL COURT OF NEW ORLEANS. This is an action to compel a compliance on the part of the defendants, with the sale of 103 bales of cotton to the plaintiff for a certain price, which he alleges was agreed on.

<p>in a possessory action, the civil possession of tlie plaintiff, preceded by an actual and corporal detention of tlie thing, -will suffice, as it allows him the benefit of the previous corporal possession of his author.</p> <p>The court do not recognize the doctrine, that there is but one kind of possession, and that civil possession will suffice in all cases of possessory actions.</p> <p>Possession is acquired by the actual and corporal detention of the property; this is natural, or possession in fact; and it is preserved and maintained by the mere will or intention to possess, and this is civil possession, or possession in right.</p> <p>So where a person is disturbed in his possession, he has the right, within a year, and by virtue of his civil possession, founded on his previous corporal and actual possession, to institute the possessory action'to recover it.</p> <p>The person claiming by possession alone, without showing any title, must show an adverse possession by inclosures, and his claim will not extend beyond.</p> <p>In a possessory action, the civil possession of the plaintiff, preceded by an aetual and corporeal detention of the tiling, will suffice, as it allows him the benefit of the previous corporeal possession of his author.</p> <p>The court do not recognize the doctrine, that there is but one kind of possession, and thaif civil possession will suffice in all cases of pos-sessory actions.</p> <p>Possession is actual and^cor-poreaolf perty; this is natural, or pos■session in fact; sen-ed ” 'and tSe'mere vdll or intention to possess, and this is civil possession, right.SSeSS1°n U1</p> <p>So where a person is disturbed in his possession, he lias the right, within a year, and. by virtue of his civil possession, founded on his previous corporeal and actual possession, to institute the possessory action to recover it.</p> <p>. The person session6 alone, ¡ng'any Stitle, ^Xerse passession hy enclosures, and his claim will not exten beyond‘</p>

Eastern Dis. APP1AI TOOK THE COURT OP THE THIRD 'DISTRICT, POR THE PARISH OP ■ past PDIICIANA, THE JUDGE THEREOP PRESIDING. This is an action in the nature of a petitory one, but also partaking of the character of an action of boundary. As the case has been remanded for a new trial on the merits, it is unnecessary to go into a full Eeport of it now. The opinion of the court fully explains the law points settled in it.

Easteiut Bis. AIEEAE 131031 THE COURT 03? rltOBATES TOR THE PARISH OS ST. HEIEiTA. This is an action by the widow of Thomas W. Day, deceased, against his father, Win. Day, to recover the amount of her deceased son’s estate, now in his ¡hands, and which she alleges she is entitled to receive as his sole heir ; being hex only child, who died after her husband. The defendant was appointed tutor of his grand-son, and had the administration of his estate.

Eastehit Dis. APPEAL EROK THE COMMERCIAL COURT OP NEW ORLEANS. This is an action by the late owners of the ship Bombay, to recover her from the defendant, who is a third purchaser and owner, after she had been sold as a wreck, and abandoned by the plaintiffs’, her owners, to the underwriters. The facts of the case are so fully stated in the opinion of the court, that it is unnecessary to recapitulate them.

<p>Éastebk Dis.</p> <p>APPEAL FROM THE COURT OP THE 2TRST JUDICIAL DISTRICT*</p> <p>This is an action on a valued policy of insurance on á Cargo of pork in bulk, beans and flour, valued at $3480 ; the voyage commencing at Vicksburg and to continue until the flat-boat in which said cargo was shipped, landed safely, and moored in the port of New Orleans. On her way down she took fire about 10 leagues above the city and burnt nearly to the water’s edge. The bottom however floated down with the pork in a damaged, barbacued condition, which was sold at nearly a total loss, and the plaintiffs, who are the insured, abandoned to the underwriters as for a total loss. They pray judgment for the value, to wit, $3480.</p> <p>The defendants denied that theíe was such a cargo as was represented, but that it was made up with a view to defraud them; and no cargo of the value claimed ever existed, either before or at the time of the alleged loss 'by fire; and that said loss, if any, was occasioned by plaintiffs’ fault and with a view to defraud them. They pray judgment in their favor.</p> <p>On the issues thus made up, and the evidence showing the cargo, the value of which is claimed, to be composed of memorandum articles, and perishable ; there was a verdict and judgement for the defendants, and the plaintiffs appealed»</p>

Kastwrn Dis, aerear from the cohmeroiae court of new oreeaks.

Eastbm Dis. APPEAL EliOM THE COURT OP THE EIRST JUDICIAL DISTRICT. The facts of this case are principally stated in the opinion of the court, and the agreement of counsel, embodied in it. The controversy arose on oppositions made to the- tableau of distribution filed by the syndic.

<p>APPEAL THOM THE COURT OF THE FIFTH DISTRICT FOR THE PARISH OF ST. LANDRY, THE JUDGE OF THE NINTH'PRESIDING;</p> <p>Western Dis;</p> <p>This is a redhibitory action. The plaintiff* alleges that in April, 1835, lie purchased the slave Titus front the defendant for the sum of $650, payable in a promissory note sigrted by James Walsh and endorsed by this petitioner. That shortly after the sale he discovered the slave was afflicted with a severe ¿jsease 0f the kidneys, which must have existed at the time and before the sale; and which rendered him wholly -useless and worthless; being unable to perform any service or labor.</p> <p>The plaintiff further alleges that he informed the defendant of the disease with which the slave was afflicted and tendered him, and requested the defendant to take him back and return the note given for the price, or the money in lieu thereof, but that he refused and still doth refuse. That he has placed said slave in a hospital, where his medical attendance and nursing has cost $300; and he continues to be expensive without being in any manner useful or profitable, as the disease is incurable. He prays that the defendant be required to take back said slave, and return the price, together with $600 for medical attendance, &c.</p> <p>The defendant pleaded a general denial. Upon these pleadings and issues the case was tried.</p> <p>The evidence of two physicians showed that when they were called in, the slave Titus was afflicted with a disease of the bladder, kidneys, and weakness in the loins and general debility, which they pronounced a chronic disease of the kidneys. Doctor Osborne declares, that on the day and year, to wit: the 6th ^.pril, 1835, the negro man Titus was afflicted with a serious disease of the kidneys. It was a bad case, but witness cannot say it was incurable. The disease at the time mentioned appeared to have been of long standing. It appeared he became helpless soon after the sale and delivery to the plaintiff’s agent.</p> <p>The defendant’s witnesses deposed that the slave was healthy, active and athletic up to the time of sale ; and that they discovered no symptoms of disease. His general good health and robust, athletic constitution was proved by two overseers and two other persons who had charge of him, and some of them up to the time of sale ; in other words he was proved to be perfectly sound, in good health, up to the day of sale. No evidence of a tender of the slave to the defendant was pro- , ,. -i.i it duced. There was, however, a verdict and judgment annulling the sale and decreeing the return of the note or price of the slave. The defendant appealed.</p> <p>submitted the case. The defendant in person, presented written points on which he relied for the reversal of the judgment.</p>

<p>The Roman law, in laying doiyn a general pule on the subject of warranty, provides, that the purchaser must be indemnified to the extent of the interest he liad in not being evicted: on this there are some restrictions.</p> <p>In regard to agreements, haying for their object certain quantity or amount, as in sales, leases, &c., the damages were not to exceed the value of the subject matter of the contract.</p> <p>A debtor, engaging to pay damages for the nonrperformance of his obligation, is presumed to intend only the highest damages, within the contemplation of the parties at the time of the contract; and if they are such as could not have been foreseen, they must be reduced toa. reasonable sum.</p> <p>Principles of the Roman law, which never had the force of positive law ip this country; but which are founded in equity and reason, will be adopted as rules, regulating the indemnity, to which a party is liable, on his warranty. So it is improbable, that parties ever contemplated, that the damages in case of eviction should be larger, than the value of the subject matter of the contract.</p> <p>So where the vendee of a female slave, purchased in 1802, was evicted, and the vendor refunded the price; is afterwards evicted of her increase or children, the vendor is only to pay as damages, the value or original price of said slave, and not the value of the young slaves, born of her after the sale, although much greater.</p> <p>\aw’ ln laylntj down a general rule on the subject of warranty, provides, that musttieindem-The Roman resi: had in not being evicted: on this there are some restrictions.</p> <p>In reo-ard to agreements^ia-object certain quantity or amount, as in sales,lcases^&c^ cee'd the 'value of tiie subject .contract.</p> <p>A debtor, engaging to pay damages for the non-perform-anee of his obligation, is pre-suméd to intend only the highest damages,within the contemplation of the parties at the time of the contract; and if they are such as could not have been foreseen, they must be reduced to a reasonable sum.</p> <p>Principles of tlie Roman law, which never had the force of positive law in this country ; but which are founded in equity and reason, will he adopted as rules, regulating the indemnity, to which a party is liable, on his warranty.</p> <p>So it is improbable, that parties ever contemplated, that the damages in case of eviction should be larger than the value of subject matter</p> <p>go vliere tllg maieslave pur" elmed in 1802, the vendor re-jjrieefis atier-ñeTfecréusíor cJiadre,l> the vendor is only to pay as damages, tie value or original price of said slave, and not the value slaves^ borrT of ^ though mucl* greater.</p>

<p>Western Dts,</p> <p>APPEAL PROM TIIE COURT OP TIIE PIPTII DISTRICT, POR THE PARISH OP ST.3rARr, THE JUDGE OP THE SIXTH PRESIDING;</p> <p>This suit commenced by attachment of a judgment in favor of the defendant* against the plaintiff, for $3,175 rendered on a note of hands</p> <p>The plaintiff alleges that the defendant is a resident of Tennessee, and is indebted to him in the sum of $1500, the value of a slave named William, taken by the latter to Tennessee and never returned ; also $000 for payments and offsetts which should have been allowed as credits on the note, on which judgment was rendered, hut were not; and likewise $200 per annum for the services of said slave until he be restored and delivered up. lie prays for judgment accordingly, and that an attachment'issue and be levied on defendant’s Judgment against him.</p> <p>The defendant averred the plaintiff could not maintain hie action, for the claims and demands now set up should have been pleaded in the suit which this defendant instituted against him, the judgment whereof is now attempted to he attached ; that these claims existed when that suit was commenced and should have been set up as a defence ; which not having been done, these matters have become res judicatix ; and he is now barred from claiming them in this action.</p> <p>In answer to the merits the defendant pleads the general issue ; and avers that the note on which judgment was rendered, was given in full settlement of all the accounts and claims between them for which a suit was then pending, and after-wards dismissed. That tñe facts and allegations set forth in the petition are unfounded and Untrue.</p> <p>Upon these pleadings and issues the cause was tried.</p> <p>This suit was instituted the 19th July, 1837, and the answer to the merits filed April 8, 1839.</p> <p>On the trial, April 10, 1840, the plaintiff filed his affidavit for a continuance, in order to obtain the testimony of witnesses in Tennessee, which was refused; the judge being of opinion the grounds were insufficient. A bill of exceptions was taken to the opinion of the court. The affidavit is fully stated in the opinion of this court.</p> <p>There was judgment for the defendant and the plaintiff appealed.</p>

<p>Western Dis,</p> <p>ARPEAD FROM THE COURT OF THE FIFTH DISTRICT FOIL THE PARISH OF ST. MART, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This suit commenced by injunction. J. P. M'Carty having obtained a judgment on a promissory note of the plaintiff for $3175, with ten per cent, interest, issued execution and was proceeding to sell a tract of land, when stopped by injunction. The plaintiff alleges that when suit was pending in which said judgment was rendered, he pleaded several matters and de. mands in reconvention which were rejected, and for which he has instituted a separate suit, against the said defendant, and attached the judgment in question. He further alleges that notwithstanding this, execution issued and lifts been levied on a tract of land, situated on the east side of Bayou Teche, hut the sheriff has advertised a tract of land situated on the west side of said bayou for sale, He prays for injunction to stay all further proceedings in said sale and that he have judgment perpetuating the same with costs.</p> <p>The defendant set out various grounds for the dissolution of the injunction, and prayed that it he dissolved with damages and costs.</p> <p>On hearing the parties, and examining the papers and do-euments relative to the seizure and advertisements, there was judgment dissolving the injunction with ten per cent, interest, and five per cent, damages and costs ; and that the sheriff proceed with the sale as if no injunction had issued.</p> <p>The plaintiff appealed.</p>

<p>Admitting; the plaintiffs are owners of the upper end of a larger tract of land, yet if they show no location by an authorized survey, embracing the locus in quoy they cannot maintain an action, even of trespass, against a possessor, so as to oust or disturb him.</p> <p>Admitting the plaintiffs ar.e Owners of tho upper end of a íanl^yetYfthey show no location by an authorized sur-vey> embracing the locus in quo, maintain an'ací ti-espassjagainst a possessor, so as to oust or disturb him.</p>

<p>"Where a party shows a judgment, execution, sheriff’s return thereon, and deed of sale, it is prima facia evidence of a valid alienation; and the party attacking the sale must show the forms of law have not been fulfilled.</p> <p>If a purchaser at sheriff’s sale does not offer good security, the sheriff must sell again immediately. If he gives any delay, it is at his own risk, and he will he liable in damages to the plaintiff in execution, if any are sustained in consequence of such delay.</p> <p>Where a party shows a judgment, exe-return’ thereon3, it'is/knl /?“« evidence oi a valid alien-ationj and tiie Sie^sale^nus^ onawhave™* been fulfilled,</p> <p>If a purchaser at sheriff’s sale does not offer good security, the sheriff must sell again immediately, if he gives any delay, it is at his own risk, and he will he liable in damages to the plaintiff in execution, if an3r are sustained in consequence of such delay.</p>

<p>Where a judgment, which is enjoined already; bears interest at ten per cent. per annum, no further interest can be allowed on a dissolution of the injunction.</p> <p>Interest On the dissolution of an injunction'may he increased to ten percent.; hut whatever else, that may be allowed against the ‘plaintiff and ’hi's surety'ih injunction, should be given as damage's.</p> <p>Where ajudg-“P'í yj11®]1 ls enjoined airea-t>eai's in-terest at ten per cent, per an-i™teres° can be ¿;ssXtion°n of lIle injunction; Interest on the dissolution of an injunction may be increased to ^laXer^’else against the plaintiff and his surety in injunction, should damafes?11</p>

Westemt Pis. ÍBÍEH PROM THE COURT OR THE FIFTH DISTRICT FOR THE PARISH OF ST. MART, THE JUDGE OF THE SIXTH FRESIDriTO. This is an action on several notes executed to the plaintiffs in liquidation of a large account for advances, supplies and purchases of slaves for Ursin Perret, the defendant.' The plaintiffs allege there is a balance due them, of $55,333, for , , , . . which they pray judgment.

<p>Western- Dis.</p> <p>APPEAL FROM TUB COURT UP THE FIFTH DISTRICT, FOH TBÍE PARISH ÓF ST. LANDRY, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>The rights of the original parties to this suit wére determined by this court in a former appeal. See the casé of Füsélier, f. m. c., vs. Masse e't al., f. p. c., 4 La. Rep., 423.</p> <p>By the decree of this court the plaintiff was entitled to take one-half of the community property of which Magdalaine Masse, f. m. c., died possessed, and the defendants the othei half; and the case was remanded in 'order that a partition be ■made accordingly.</p> <p>The whole matter having been referred to the parish judge to make the partition, he completed the same and retúrn'ed his report into court.</p> <p>The defendants made opposition bn the ground that the report and partition gave to the plaintiffs more than one-half of the property to he divided.</p> <p>The contest turns on the question whether two tracts of land in Prairie Bass, and which sold for $2670, were community-property, or the separate property of Etienne Sam Fuselier % If the latter, the plaintiffs were entitled to the whole, as they ap[ 0f jjjg es);atej through their father, whom he adopted.</p> <p>The district judge from the evidence produced, decided that these two tracts of land belonged to the community, and on bringing their proceeds into the mass with all the other property an equal division was decreed between the parties. The plaintiffs appealed.</p>

Western Dis. APPEAL PROM THE COURT OP THE PIPTH DISTRICT, POR THE PARISH OE ST. MARTIN”, THE JUDGE THEREOP PRESIDING. This is an action of trespass, claiming damages for injury done to the plaintiff’s inclosures and property.

Western Dis. APPEAL PllOM TOE COURT 03? THE PIPTII DISTRICT, POK THE PARISH 01 ST, DANDRY, THE JUDGE OP THE SEVENTH PRESIDING.

Western Dis. APPEAL PROM THE COURT Op THE TOTH DISTRICT TOR THE PARISH OT ST. LANDHT, THE JUDGE OT THE SEVENTH PRESIDING. This is an action to recover two instalments of rent of $500, each, and to annul the lease for the balance of the term. The plaintiffs show that Madame veuve Miramond, now wife of F. Perret, leased a store, adjacent buildings and lot of ground, to Messrs. Follain, Fux & Co., for six years, from the 16th March, 1838, at $1000 per annum.

Western Dig. APpEAI ÍEOM THE COURT OP THE FIFTH DISTRICT POE. THE PARISH OF ST. MART, THE JUDGE OF THE DISTRICT PRESIDING. The plaintiff obtained ah injunction to stay an execution is* sued on a judgment for $1745 78, Which the defendants had obtained against him, and Were proceeding to execute. The only question raised was as to the right of the clerk to endorse on the execution the description of the property mortgaged, when it had been left blank in the petition.

Western Dis. APPÉAl PROM THE COURT or THE PIPTH DISTRICT, TOR THE PARISIÍ OP ST. MARTIR, THE JUDGE OP THE SEVENTH PRESIDING. This suit is on a promissory note for $2000, signed by the defendant, with his marque ordinaire; and payable to the order of one F. Prados, son-in-law of the maker, on demand; ' who endorsed it to the plaintiff. There were various defences set up, which with the material frets and evidence, are fully stated in the opinion of the court.

<p>Western Drs.</p> <p>APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OF ST. MARY, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>This is a possessory action. The plaintiffs, heirs of the late Nathan and Nancy Kemper, claim, a slave, which they allege is in the possession of the defendant. The case has once, already been before the court, vide 16 La. Rep., 44.</p> <p>The .evidence showed that William Kemper, husband of the defendant and son of Nathan, in his life time brought the slave Stephen from Rapides, and put him on his father’s place where they all lived and worked together. After Wm. Kemper’s death, his widow (the defendant) continued to reside in her father-in-law’s family for a length of time, and when she removed, about the 9th of April, 1837, took the slave Stephen with her, as her own property. In November following the plaintiffs instituted this suit to recover the possession of said slave. The evidence concerning the ownership of the slave is recapitulated in the opinion of the court.</p> <p>There was judgment for the defendant and the plaintiffs appealed.</p>

Western Dis. APPEAR FROM THE COXJE-T OP THE PIFTH DISTRICT POR THE PARISH OF ST» MARTIN, THE JUDGE THEREOF PRESIDING.

<p>Western Dis.</p> <p>APPEAR PROM THE COURT OS THE ÍISTH DISTRICT, SOU THE PARISH OP ST. MARTIN, THE JUDGE OP THE SEVENTH PRESIDING.</p> <p>This' is an action on a physician’s bill of $600, for medical attendance of defendant’s wife and daughter. There is no evj¿[ence jn SUpp0It 0f the item of $50, for attendance on the daughter; and it was shown that the plaintiff was called in with other physicians, to attend the wife with a fractured leg, which he unloosed, took off the old bandage and re-dressed, when the patient became better. He made several visits at a distance of 15 miles.</p> <p>After hearing all the evidence, the district judge concluded that the medical services of the plaintiff, were worth $146. From judgment thus rendered the plaintiff appealed.</p>

Western Dis. AÍÍEAX, FROM THE COURT Of TltO BATES TOE THE TARISH OE ST. MARTIN. This is an action by Edouard Broussard, the son, against his father, in the Court of Probates, to reeovei1- his deceased mother’s share of the community, and also the amount of her succession, which he allegés is #3100 ; besides #645 56, which he inherited from his grandmother.

Western Dis. APPEAL pjtOAE THE COURT OP THE PIPTH DISTRICT POR THE PARISH OP ST. MARTIN, THE JUDGE OP THE SEVENTH PRESIDING. This case has several times been before this court in various forms, and between different parties, hut in relation to the same original matter. The last time it appeared in this court it was remaiided for a new trial; on the question of the amount of damages the warrantors were liable to pay. See 16 La. Reports, 151.

WESTERN Dis. AETEAL moat TEE COURT OE THE EIETH DISTRICT, EOR TEE PARISH OE ST. , . .... • . JfA.fl.TIii;, TEE JUDGE OF TEE BISTRICT PRESIDES!}. , : This “is an action to recover a certain slave, named Celeste* 'aftchher two children, in the possession of the defendant.

<p>Wester» Dis.</p> <p>ATTEAI. I3JOM THE CO-OUT OE THE EIETH DISTHICT, E031 THE PABISH OE ST. MAIW, THE JUDGE THEBEOE ERESIDIITG.</p> <p>This is a suit on a promissory note signed by the defendant; who excepted to the petition, because the plaintiffs sue by the style and name of the' “New Orleans Canal and Banking Company,” instead of the “ The President and Director- of the New Orleans Canal and Banking Company at Franklin.” This exception was overruled. The defendant pleaded a general denial; and judgment being for the plaintiffs, he appealed.</p>

Western D.'s. APPEAR FROM THE COURT OF THE FIFTH JUDIOIAI DISTRICT FOR THE PARISH OP ST. IANDRY, THE JUDGE OP TnE SEVENTH PRESIDING.

Western Dis. AEPEAE TROM THE COURT 07? THE FIFTH DISTRICT FOR THE PARISH OP ST. MART, THE JUDGE OP THE SEYENTII PRESIDING. This suit was instituted on a draft drawn by the defendant ■on Bemiss Brashear& Co., in favor of the plaintiff, and protested for non-payment at maturity; hut no notice of protest was given to the defendant or drawer of the bill. This case ■has already been before the court. See 16 La. Rep., 77.

Western Dis. APPEAL Elton THE COURT OE THE EXETH DISTRICT, EOR THE PARISH OE ST. MARX, THE JUDGE OE THE SIXTH PRESIDING. This is an injunction case.

<p>"Western Dis.</p> <p>APPEAR PROM THE COUItT OP THE PIPTH DISTRICT POR THE PARISH OP SÍ. martin, the judge op the seventh presiding,</p> <p>This is an injunction case. The plaintiffs were purchasers of a tract of land from the defendant, described in the notarial act of sale, “as situated in the parish of St. Martin, at Fausse Pointe, at a place called Les Isles;” “having .... ar-pents front; starting from the upper line to .... arpents on the bayou Teche; and from the lower line to .... arpents of said bayou, with the whole depth from the above named limit, and running towards the big woods to which the said land has rights, with all the houses, cabins, and other improvements.” The act of sale retained the usual mortgage and vendor s pri-iii c . . i i .i.. Vilege. A balance of $2,885, remaining due and unpaid of the price, the defendant took out an order of seizure and sale which was enjoined on the following grounds:</p> <p>First — Because A. Mallet pére, the husband of Reiné Benoit, one of the parties to the act of sale and the order of seizure, was not made a party; nor did he authorize and join his said wife in the act of sale.</p> <p>Second — ‘The property seized is not described in the notice of seizure or advertisement,, as it is in the act of sale, nor is the description made with sufficient accuracy and certainty to form the basis of a judicial sale ; not showing any particular quantity of land, or boundaries.</p> <p>Third — From the uncertainty in the quantity and boundaries, no fair estimate could he made of the value of the land seized.</p> <p>Fourth — From the vague and indefinite description given, both in the act of sale and executory proceedings, if the sheriff was to offer the land for' salé, he would not be able to make a title to the purchaser for any specific quantity.</p> <p>Fifth — ‘That said order of seizure and the proceedings thereon are illegal, irregular, and cannot be carried into effect without causing great injury to the petitioners.</p> <p>Sixth-^That the deed of sale conveys to them no specific quantity of land; the quantity in front and in depth is not stated, and that both this and the boundary are left in blank; they acquired no title which they could legally transfer or make use of, and therefore the sale is a nullity.</p> <p>That the defendant has failed and neglected to have said land surveyed, and the quantity and boundaries filled up and made certain, ,as he was requested and bound to do to complete the sale; they pray that said sale be cancelled and annulled, and the price returned to them with damages : and in default of this, that the defendant be decreed to Complete the title by designating the quantity and boundaries, and filling up the blanks in their deed of sale; and that this injunction be perj petuated, till the defendant complies with their demand herein*</p> <p>The defendant admitted the sale of the land as alleged; that the quantity was unknown, but the blanks were to be filled up subsequently, because the parties did not know the exact distance from the Bayou Teche to a certain line which had been previously agreed upon as the front line ; and which were to be filled up at any subsequent time, whenever the plaintiffs should require it, &c. He avers his executory process was regularly sued out, and that the injunction should be dissolved with damages.</p> <p>On the trial, among other testimony introduced by the parties, the defendant offered a- private act of sale which had been executed by the parties describing the land more minutely than the public act afterwards signed by them, in consequence of the blanks left in the latter. This instrument was objected to because nothing was admissible in evidence against an authentic deed. The objections were overruled and the document admitted, and a bill of exceptions taken.</p> <p>There was judgment for the defendant for the balance due on the price of the land sold; and ordering the blanks in the deed of sale to be filled up according to a plat of survey in evidence, and that the land be seized and sold to satisfy the judgment. The plaintiffs appealed.</p> <p>insisted the defendant’s demand should be rejected on two grounds:</p> <p>1st. Because the whole of the proceedings on which the order of seizure and sale is predicated, are defective, as well those preceding as those succeeding the order. The act of sale does not specify any certain object sold, but is in blank as to that; the order of seizure and sale directs no specific object to' be sold, and the advertisement of the sheriff is equally uncertain. One of the plaintiffs being married no notice was «ver served on her husband. 9 La. Rep. 543.</p> <p>2d. Because the sale in question is null, and can have no effect against any of the parties. In a sale, the law requires that the thing- sold should he certain and determinate, without which, the contract would not be valid and binding. This sale does not give the description of the boundaries, nor the quantity of land sold ; it is left in blank. The defendant has endeavored to cure the defect by parol evidence, but parol evidence is inadmissible to complete the sale. The sale was not signed by all the parties; Antoine Mallet, the husband, did not authorize his wife. Troplong No. 48-9; 9 Touillier No. 460; 5 La. Rep, 460,</p>

Westers- Dis. APPEAL Prom the court op the fifth district for the parish of ST. MARY, THE JUDGE OF THE DISTRICT PRESIDING. This is an action against the defendant as surety in a curator’s bond. The plaintiffs allege, the late Win. S. Barr was indebted to them $604, for the amount of his promissory note, executed and payable the 31st March, 1833, with 5 per cent, per annum interest thereon until paid.

Western Dis. APPEAL PROM THE COVIIT OP THE FIFTH JUDICIAL.DISTRICT POR THE PARISH OP LAFAYETTE^ THE JUDGE THEREOF PRESIDING, This is an action by Carmelite E. Benoit, wife of T. Brous-. sard ; and formerly the wife of Arvillien Broussard, a deceased son of the defendant, to recover the amount alleged by her to, be due from the estate o.f her late husband, which she inherited •from her deceased son, born of that marriage.

Western Dis. •APPEAL FROM THE COURT OP THE FIFTH DISTRICT, FOR THE TARISH OF ST. MARTIN, THE JUDGE THEREOF FRESIDING. This is an action on several promissory notes of the defendant claiming a balance as due thereon of #2367 24, with ten per cent, interest.

<p>Westers- Dis.</p> <p>ÁÍMAI HIOM THE COURT 03? THE PIPTH DISTRICT TOR. THE PARISH OP ST. MARTIN, THE JUDGE OP THE SEVENTH PRESIDING.</p> <p>This case grew out of a partnership in a small steamboat and joint ownership in a tract of land. The plaintiff .and defendant being partners, a serious misunderstanding arose between them, and this suit was instituted to settle and dissolve the partnership affairs, and to recover any balance that may be found due the plaintiff.</p> <p>The defendant pleaded the general issue, and claimed a large balance dne to him.</p> <p>When the cause was at issue it was sent before auditors who reported a balance for plaintiff, when after making deductions in favor of the defendant, there was a judgment for the plain» tiff of $340, with interest, &c. The defendant appealed.</p>

Western Dis. APPEAL EROM THE COUBT OE THE EIETH DISTRICT* EOB THE PARISH OE ST. MART, THE JUDGE OE THE SEVENTH PRESIDING. This is an appeal taken by the principal in an injunction bond. In the case of McMillen vs. Carlin, curator, &c., there was judgment in the court below, dissolving the injunction, with damages, interest, &¡c., against the principal and his surety.

Western Dis- APPEAL EROM THE COURT OE THE EIETH DISTRICT, EOR THE PARISH OE ST, LANDRY, TIIE JUDGE OE THE SEVENTH PRESIDING. This is an. action of trespass claiming damages from the defendant, for cutting cypress and making Pieux on plaintiff’s land.

Wesíejust Dis. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. JIART, THE JUDGE OF THE DISTRICT PRESIDING. This is an action on a curator’s bond, against the surety. The plaintiffs, W. F. Hyde and E. D. Hyde, sue as the surviving partners of the late firm of W. F. & E. D. Hyde & Co.; claiming the sum. of $543 63, due their said firm by-the estate of R. S. Barr, deceased.

<p>The representatives of the deceased partner must he joined, or authority from the Court of Probates obtained, in a suit by the surviving partners, due the partnership.</p>

Westers' Dis. APPEAL FROM THE COURT OF THE FIFTH DISTRICT tfoR THE PARISH OF ST. LANDRY, THE JUDGE OF THE SEVENTHPRESIDING. This is a suit for a separation of property, instituted by the wife against her husband. She alleges, that during her marriage, among other property of hers, received by her husband, was a negro woman named Rose, which her husband received from her mother, who was owing her $750.

Western Dis. AEPEAE EEOM THE COURT OE THE PIETS DISTRICT, POR THE PARISH !oP ST. MARY, THE JUDGE OP THE SEVENTH PRESIDING.

Westeuit Dis, AÍPEAE TBOM THE COTJBT OP THE BOTH DISTBICT, BOB THE PABISH OP ST, MABTIN, THE JUDGE OP THE SEVENTH BBESIDING. This is an action on a mechanic’s account for the sum of $427 50, for work done on defendant’s house, according to a detailed account annexed. The defendant admitted, the plaintiff had done work on his house as a carpenter, but denied he was entitled to the amount he claimed ; and that he had heen more than fully paid.

WESTERN DlS. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT FOR THE PARISH OE ST. LANDRY, THE JUDGE THEREOF PRESIDING. This is an action against the defendant and wife foi damages occasioned the plaintiff by shooting at and wounding him.

Western bis. AFPEAE FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. MARTIN, THE .ITJDOE OF THE SEVENTH PRESIDING. This is a redhibitory action, to recover back the notes or price of a negress, which the defendants caused to he sold at public auction, and was purchased by the plaintiff, at the price bf $600.

Westbiin Dis. APPEAR PROM THE COURT' OE THE PIPTH DISTRICT POR THE PARISH OP LAFAYETTE, TJIE JUDGE THEREOF PRESIDING.

Westemt Di». XPPEAX FROM THE COURT OF PROBATES FOR THE PARISH OF ST. MARY. ■ This case comes up on an opposition filed by the plaintiff to 'sundry items in the account of the curator of John Lemel, deceased.

<p>Aftei- a judgment “by default, and answer to the merits, an exception denying the defendant’s capacity to be sued as administratrix, is not admissible.</p> <p>Where a case comes up on a judgment of non-suit in which there was no trial on the merits, or hill of exception taken, this court oannot go into the merits.</p> <p>mentby delimit and. answer to the merits, exception de-fendfnt’s "capa-a?3"administra-missii)lV10t ad"</p> <p>Where a ease judgment °n0f non-suit, in which there was no trial on hill of ex’cep-coür^cannótgo mto the merits,</p>

Westeen Dis. APPEA! FEOM THE COUET OF THE FIFTH JIISTEICT FOE THE PAEISII OF ST This is an action to recover $575, the amount of a promissory note signed by the defendant, with 10 per cent, interest; and also $829 95, advanced to the defendant with other funds, to purchase slaves.

WesterN Bis. APPEAL FROM THE CQU31T OF THE FIFTH DISTRICT FOR THE PARISH OF ST* MART, THE JUDGE OF THE SEVENTH PRESIDING* This is an action to recover the value of the services of five slaves, alleged to have been in the possession of the defendants under mortgage for the space of seven years. Their services are alleged to be worth fifteen dollars per month each, independent of their clothing and other expenses.

Western Dis, APPEAR FROM TEE COURT t)F PROBATES POR TEE PARISH OF lAFATETTR; This is an action by the plaintiff against her late tutor; claiming the sum. of $929, balance due on account of the tutorship, part of which is evidenced by a noté df $562, bearing fen per cent interest, exeóuted by the defendant the 31st July, 1834, payablé twelve months after date to her husband, Elize Messonier. She prays judgment foi‘ the said sum of $929.

<p>An appeal will not Re dismissed, for want of citation of appeal, When it was caused by the fault of the appellee.</p> <p>It is no ground for a continuance that a witness is insane, and time is aáked^ that he may recover, and his deposition be taken; especially when it is not shown he would be able to testify in a reasonable time.</p> <p>When the answer sets up no speciál contract, a continuance need not be allowed for the party to procure the testimony of a witness, as it is Unimportant to the defence to prove one.</p> <p>Where a petson has treated with a minor, he cannot plead the nullity of the agreement, when sought to be enforced after the disability has ceased.</p> <p>Where a claim against an estate is unliquidated, or the eurator objects and refuses to approve it, the party may Sue on it in the Court of Prohatesbut he cannot have execution immediately, as it must be paid concurrently with other creditors.</p> <p>Claims against estates in the course of administration, bear legal interest from the time they are due and payable, although unliquidated.</p> <p>An appeal misled4 *for 'wimt oi cltat>on oi appeal, when it caused by the fault of the appellee.</p> <p>T. . ground for a that a witness tim^is^askeif, 11(5 cover, and his deposition he it *youldSbeWabie *° time.</p> <p>Where the answer sets up no special contract, a continu-beCallow®d for procurelty the ívitúess” as°ft is unimportant to the defence to prove one¡</p> <p>Where a person has treated with a no^plead °the nullity of the ai?r<3 e ml q n t when sought to te ^^disabi-litylms ceased,</p> <p>Where a claim against liquidated'5 "or jectse'a'nd°refu" ses to approve It, the party may sue on it pi-ohate™111 but execution mediately, as it must be paid concurrently dítors?tlier °re</p> <p>against estates in tiie course of administration, bear legal the time they payaMe ? althcR unliquidated.</p>

Western Die. This is an action against the endorser of two promissory-notes, amounting to $2,325, discounted in Bank. The defendant pleaded a general denial. There was judgment for the plaintiffs, and the defendant appealed.

<p>The certificate of the notary must he recorded and attested by two witnesses, to be admissible as evidence of notice.</p>

Western- Dis. ÍEÍEAE EH05I THE COURT OE THE TEETH DISTRICT, TOR THE DARISH 01 CADDO, JUDGE CAMBBEBE PBESIBIEG. This is an action on tbe following note against one of the makers only; McLeod, the other, being dead. “ Shreveport, July 1st, 1839.” “ $2,459. — One day after date, we promise to pay to the order of James G. Jones, the sum of twenty-four hundred and fifty-nine dollars, for value received.” “J. C. McLeod.” “W. Jenkiss.” The defendant Jenkins alone is sued.

<p>Western Dis.</p> <p>APPEAL PROM THE COURT OP THE SEVENTH DISTRICT, POR THE PARISH OF OUACHITA, THE JUDGE OF THE SIXTH PRESIDING.</p> <p>This is an action on a promissory note against the makers, who all sign as joint obligors.</p> <p>The defendants severed in their answers. Garrett admitted the note was given for his debt and sole benefit, and set up a payment of about $1323 for the price of certain cotton, sent by him to the plaintiffs.</p> <p>The two other defendants pleaded the general issue, and averred the note and debt were paid and extinguished by the principal debtor and their co-defendant. They aver, they are only sureties of Garrett, and plead the benefit of discussion.</p> <p>It was fully shown, the two last defendants (Pinnell & Peck) were the sureties of Garrett, and that he had made payments.</p> <p>The district judge however considered all the parties as joint obligors, and'each only bound for his share. That Garrett, the principal debtor, (and who had absconded,) was entitled to the credit of $1323, which extinguished his share of $833 33, with a reserve over of $490. Judgment was given in his favor and against the two sureties each for $833 33. They' alone have appealed.</p>

Western Dis. arpead from the court of the sixth district for the parish of NATCHITOCHES, THE JUDGE THEREOF PRESIDING. This is an action against the endorser of a promissory note., dated the 15th February, 1837, payable twelve months after date, to the order of the defendant, and by him and others endorsed.

Western Uis*. AMIA! FItOM THE COUHT OF THE SEVENTH DISTRICT FOR THE PARISH OF CATAHOULA, THE LODGE OF THE SIXTH PRESIDING. This is an action against the endorser of a promissory note, for the balance due thereon of $635, and interest. The defendant pleaded the general issue, and denied specially his liability as endorser, or that he was in any way indebted. On the trial the note and protest were offered in evidence.

Western Dis. APPEAR PROM THE COURT OP THE SIXTH DISTRICT, FOR THE PARISH OP RAPIDES, THE JUDGE OP THE DISTRICT PRESIDING. This is an action against the curatrix of the estate of Wrn. Gunning, deceased, and two of her sureties on her bond, to render them personally liable in solido, for failing to pay over the amount of the plaintiff’s claim, which is allowed and he is placed on the tableau of distribution among the creditors of. said estate.

<p>The guarantor of anote is a competent -witness on the part of the maker, in a suit by the endorsee against the latter; for it is the interest of the witness, that the plaintiff should recover, and he is called upon to testify against his own interest.</p> <p>■So where plaintiffs received the note sued on after maturity, the defendant may produce in evidence the letter of the payees and original holders, to show, that the suit was premature, and that a certain time had been allowed for payment.</p> <p>’The guarantor of a note is a competent witness on the part of the maker, in a suit by the en-dorsee against the latter; for it is the interest of the witness, thai the plaintiff should recover, and he is called upon to testify against his own interest.</p> <p>So "where ceived^the note ^afurity defendant may produce in evi-denee the letter and e original thauhesuttwas ¡!re,mature> an.<1 that a certain bad beep allowed for-payment.</p>

Westem- Dis. •Ieceae rnoM the cOúiít oé the seventh bisthIct, eoh the taM'sh oé ' OUACHITA, THE JUDGE OÉ THE SIXTH EB-ESlnlNG. This is án action against thé principal and his surety on & ’note of $810, given for the price of a slave, purchased by Copley at the probate sale of S. D. Brown’s estate. , The defendants admitted the execution of the note and' iis consideration.

Western Dis„ APPEAL PROM THE COURT Op THE TENTH DISTRICT, TOR THE PARISH OF NATCHITOCHES, JUDGE CAMPEELE OP THE DISTRICT PRESIDING. This is a redhibitory action. The plaintiff alleges, he purchased a slave named George from Mrs. Sarah E. Fisher, for $ 10.0,Q, That he is subject to redhibitory defects and vices, which entitle him to a rescission of the sale. He avers, he has tendered bach said slave to the agent of the defendant, who peremptorily refused to receive him.

WESTERN Dis. APPEAL PROM TUB • COURT OP THE TENTE DISTRICT POR THE PARISH OP-CLAIBORNE, JUDGE CAMPBELL PRESIDING. This is an action of mortgage. The plaintiff alleges he is, the assignee and transferree of a mortgage on two half-quarter sections of land, executed by one R. Stiles to Canfield & Drake to secure them against their endorsements on two notes of his and that said mortgage was given to secure the payment of said notes.

<p>Western DiS.</p> <p>AEEEAD EROM THE COURT OE THE SEVENTH JUDICIAL DISTRICT TOR THE PARISH OE OUACHITA, TIIE JUDGE OE THE EIFTH PRESIDING.</p> <p>This is an action to recover $350, the balance due on a note 'given for the sale and purchase of plaintiff’s improvement oh 'United States land. The act of sale was passed in August* 1839, and expresses on its face, that the plaintiff sells a certain improvement on government land, for the sum of $1,675. He prays judgment for the balance due.</p> <p>The defendant pleaded the general issue; avers he is ■'entitled to a credit on his note of $1,335, and by a special agreement is not to pay interest. He further avers that the plaintiff is indebted to him in the sum of $300, for 300 barrels of corn, which he gathered from the plantation, and which is now pleaded in compensation.</p> <p>The plaintiff had judgment on the evidence adduced. His witnesses proved that the plaintiff.did not sell the corn, then on the' land; and on their cross-examination defendant’s counsel ascertained there was no other contract between the parties but the written one, or act of sale, and that the evidence was illegal, and should he stricken out, hut which was refused, ■and he took his bill of exceptions. The defendant appealed.</p> <p>insisted that parol evidence was admissible in this case. There was no real estate •sold ; only improvements, &c. 4 La. Rep. 23; 16 Idem 232.</p> <p>urged that his motion to strike ‘out the parol evidence on the cross-examination was in time, and the motion should have been sustained. The illegality of 'the testimony could not he discovered until on the cross-exa-taination, it was clear the witnesses were testifying as to the construction of a written contract. It was not too late then to strike it out; .and this principle is supported by Phillips on evidence.</p>

Western Dis. APPEAL PROM THE COURT Ofc THE SIXTH, NOW TENTH DISTRICT, POR THE, PARISH OP &ATCHITÚCHE8, TRE JUDGE OP THE SEVENTH PRESIDING. This is a possessory action, instituted, in April, 1838, and citation was served on the defendant the 10th May following.

<p>YV ESTERS' Dlsk</p> <p>APPEAR EROM THE COÜHT OP THE NINTH DISTRICT POll THE PARISH OP 3IADIS0IT, JUDGE THUNT PRESIDING.</p> <p>This suit commenced by an order of seizure and sale, which the plaintiff’s obtained on their vendor’s privilege and mortgage against a certain plantation and slaves in the possession, of R. G. Dunlap, their vendee.</p> <p>The defendant took an appeal from this order to. the Supreme Court. See the case in 16 La. Rep., 163.</p> <p>The cause was remanded for new proceedings. In the meantime, on the 18th April, 1839, two days after granting the order of seizure and sale, and after an appeal was taken, therefrom, Hugh W. Dunlap, the now defendant, purchased, out the interest of his brother. After the return of the cause-to the District Court, and when the mandate of the Supreme-Court was about being executed, to wit: on the 16th February, 1841, the present defendant in the original suit, applied for and obtained an injunction against the order of seizure, without giving security. He set up various grounds and defects in the title, but none of the causes- authorizing an opposition and injunction to an order of seizure and sale without giving security were enumerated.</p> <p>The plaintiffs whose proceedings were enjoined moved to dissolve the injunction on various grounds; among which were that the act of sale contained the clause ox pact de non alienan-do, and that the present defendant and purchaser could not avail himself of this mode of proceeding, which was only accorded to the original debtor, &c.</p> <p>There was a mass of evidence taken, on the issues made up. between the parties, respecting the title to a portion of the land embraced in the original purchase and sale. The question turned entirely in this court on the right of the defendant to maintain his injunction without having given security.</p> <p>There was judgment dissolving the injunction with ten per cent, damages and ten per cent, interest on.$22,500, which had then become due of the price of the plantation and slaves, instead of $15^363, the sum due and actually enjoined at the suing out of the injunction. The defendant appealed.</p>

<p>Sureties in Ronds taken in judicial proceeding's are bound ih solido; being entitled to neither division nor discussion; so several sureties in a 12 months bond are each bound for the whole sum.</p> <p>Where the creditor does not suspend his execution so as to put it out of his power, or the surety (if he should pay,) to pursue the debtor, it is no prolongation of the time of payment.</p> <p>When it appears in the progress of the trial, that a payment has been made ' of part of the debt; although the injunction may have to be dissolved for want of an allegation of payment, yet a new one for this amount should be granted and perpetuated.</p> <p>Where the party is entitled to a new injunction instanter for a part of the debt on the dissolution of the first, he will not he mulct in damages.</p> <p>bonds'fe&en in judicial pro-ceedmgjs are b'o.und itnoMo-being entitled to neither divi-áon^so^seyei ^al JSgr'e^lt]in bon'd ai-e each bound fpf th* -whole sum,</p> <p>Where the creditor does not suspend his execution so as hh^'powcíf or should'payf to pursue the debtor, it is no prolongation of paymenfc10 °</p> <p>When it ap-peara m the progress ot the trial,, that a ibeen^made of although10 **'the liave to°be 'dhf solved fot-want of an allegation of.payment, yet this°1V amount granted and perpetuated,</p> <p>Where the party is entitled to a new inter°fora^rto£ ^f he will notbe*mulct in* damages.</p>

Western Dis. APPEAL PROM THE COURT OI’ THE NINTH DISTRICT, POR THE PARISH of- ' ' CARROLL, JUDGE TBNNX PRESIDING.

Wíistebjí Dis. os’ a be-heabing- isr pabt. In this case a re-hearing was granted “ so far as relates to the plaintiff’s claim to the children horn of the slaves during the time they were in possession of the defendant. The sole question to he decided here is, do the children or fruits of slaves in a Write d remiré, born or accrued during the time they are in possession of the vendee, belong to the vendor on the redemption, or to the vendee ?

Wistliw Dis. APPEAD PROM THE COURT OF THE SEVENTH DISTRICT, TOR THE PARISH OF OUACHITA, THE JUDGE OF THE SIXTH PRESIDING. This is an action to rescind the sale of certain floats or rights to a quarter section of land-.

Westekn .Dis. ON AN APPLICATION PON A Ill-HEARING. applied for a re-hearing. He urged upon the court to change the judgment from one of non-suit, and allow the case to he remanded for a new trial.

<p>Where a commission is charged for accepting, none can he claimed, or a like commission charged for advancing', on the same sum or transaction.</p> <p>A promise hy defendant to send plaintiffs his crop, or in default, to allow lliem. a commission on its amount, having no other consideration than the accept-, anee of a draft, for whicha commission is already charged and allowed, is a nudum pactum, and will not he enforced.</p> <p>Who* atom* mission is charged for ac-ean^be’claimed mission charged for, advancing, on the same sum or temsaetion,</p> <p>A promise by defendant to send plaintiffs his crop, or in default, to allow them a commission on its amount, having no other consideration than the acceptance of a ’ draft, for which a commission is already charged and allowed, is a nudum pac-tum, and will not be enforced.</p>

Westeri Drs. APPEAL FROM THE COURT OF THE NINTn DISTRICT, FOR THE PAIIIHH OF CONCORDIA, THE JUDGE THEREOF PRESIDING.

Western Dis. APPEAL PROM THE COURT OP THE NINTH DISTRICT POR THE PARISH OP CONCORDIA, THE JUDGp THEREOP PRESIDING. This is an action on a judgment obtained in Mississippi against the defendant and others for $1828 93, with 8 per cent, interest from the 17th May, 1838. This suit is by attachment against certain slaves, sent by Lewis Campbell to the parish of Concordia.

Western Dis. ATOEAX FROM THE COURT OF TUB SEVENTH DISTRICT, TOR THE PARISH OF CATAIIOUXA, THE JUDGE OF THE FIFTH PRESIDING. This is an action by the surviving wife to recover from the collateral heirs of her deceased husband, all the property of his estate and of which he died possessed.

<p>Western Dis.</p> <p>APPEAL PROM THE COURT OP THE NINTH DISTRICT POR THE PARISH OP CONCORDIA, THE JUDGE THEREOF PRESIDING.</p> <p>This suit commenced by injunction. The plaintiff' alleges,, that on the 19th February, 1801, the Marquis de Casa Calvo,, then governor general of the province of Louisiana, granted to one Thomas Thompson, then a resident of Concordia, the perpetual privilege of keeping a ferry across the Mississippi river' at the post of Concordia, as a privilege attached to hie plantation ; and on condition that he would clear and open a certain, public road or highway from the post of Concordia to the bayoui Crocodile, in the district of Concordia.</p> <p>The plaintiff further alleges, that Thompson fully performed the condition of his grant by making said road, and enjoyed all the privileges and emoluments of said ferry until'the 16th Oct., 1803, when he sold and transferred1 them to J. Yidal, for $4000, when the whole would not have been worth $800 without said ferry and the privileges thereto attached. That Yidal continued to own, possess and enjoy said ferry with its privileges and the plantation, until in the year 1817 they were sold and transferred to this petitioner, who has continued to own and possess them. He expressly alleges, that he has the exclusive right to keep a ferry across the Mississippi, according to the usages and laws of the Spanish government, for one league above and below the post of Concordia, which is also secured to him by the said grant to Thompson. He alleges, that the Police Jury of the parish of Concordia claim to exercise the right to sell or lease out said ferry in violation of his rights and grant; and that in April, 1839, they passed an ordinance to take possession, lease and sell out to the highest bidder all the privileges and rights to keep a public ferry at the place specified in his grant, and in violation thereof. He prays, that the Police Jury he enjoined from proceeding any further in said matter ; that their ordinance be declared null, and that his interest in the same greatly exceeds $300 ; he prays for general relief, and that his rights, privileges and grant to said ferry be confirmed to him.</p> <p>The defendants admitted their proceedings to take possession and sell out the ferry in question, for the benefit of the parish. They deny 'the exclusive right or privilege of the plaintiff to ,, - , . . said terry. That it any grant was ever made, it is inoperative and null, because its terms and conditions were never complied with by the granteeand neither the plaintiff or grantee ever exercised the rights and privileges now claimed, or kept up a ferry, therefore, if they ever had any such rights or privileges, they are forfeited by non-user. They aver, their ordinance is legal and valid; that the Police Jury possess the right and authority to pass it and use said ferry for the benefit of the parish. They pray, that the injunction be dissolved with $1000 damages, and that they be quieted in their rights and authority •to lease out and sell the same for the parish of Concordia.</p> <p>Upon these pleadings and issues the case was tried.</p> <p>The plaintiff founds his pretensions on the following documents :</p> <p>“ Mr. CoiifMANDANT OF THE POST OF CoÑCORDIA.</p> <p>“ Thomas Thompson with due respect represents and sayeth: 'that as there are are no more than 5 inhabitants now established here, we cannot incur the expenses of a road, unless the King pays us our work ; and whereas his excellency the Governor has granted to Don Juan Heverard the ferry of Black River, 'for making a road at his expense from said river to the Bayou Cocodrillo: the petitioner proposes, that from the Post to Bayou Cocodrillo he will likewise make the road of 30 or 40 feet wide, at his expense, with the condition, that he may be granted to hold the ferry from his plantation to the landing of Natchez, as a privilege attached to his plantation; to which effect he promises to keep fiats and other necessary boats to the purpose. This favor he expects to receive from you.</p> <p>“ Thomas Thompson.”</p> <p>“ Concordia, 27th January, 1801.”</p> <p>■“ Hxs Excellency the Governor.</p> <p>•“The proposition made by the petitioner is similar to that you were pleased to grant to Don Juan Heverard. The small number of inhabitants residing at this post, does not permit, that they employ themselves in an undertaking so costly, unless ke comp¡>nsated, as I have exposed to your excellency on. this subject: considering the advantages which will result, I recommend to your excellency to grant the prayer of the pe-tjtioner, who is a person capable of fulfilling what he proposes : Providing, it may please your excellency to grant the privilege which-he solicits.</p> <p>“ Jh. Vidal.”</p> <p>“Concordia, 31st'January, 1801.”</p> <p>“ New Orleans, 19th February, 1801.</p> <p>“ Thomas Thompson conforming himself to make the road which he proposes, at his expense, under the inspection of the Commandant of the Post of Concordia, I grant him the privilege he prays for, to he attached to the plantation he possesses, in order that from that place, with the exclusive privilege, he may carry on the ferry of the river; demanding and receiving only the prices most equitable and customary which may he established by knowledge of said commandant.</p> <p>“ El Marquis de Casa Calvo.”</p> <p>“ Whereas Thomas Thompson has complied with the conditions which he offered in his memorial; and that he has executed under my inspection what was prescribed to him by his excellency the governor in his anterior decree, I deliver these unto him, that he may make them valuable, and possess himself of the exclusive privilege granted to him of the ferry from this Post to the landing of Natchez.</p> <p>“Jh. Vidal.”</p> <p>“ Concordia, 16th February, 1803.”</p> <p>This privilege or grant, so far as it attached to the plantation, was transferred from Thompson, through Vidal himself, to the plaintiff.</p> <p>On the trial the defendant’s counsel offered a witness to prove, that Thomas Thompson never did cut out the road to the Bayou Crocodile from the Post of Concordia, as he' proposed to do in his petition to the Marquis de Casa Calvo, for 'the privilege of keeping a ferry from bis plantation to Natcbez, which testimony was objected to on the ground, that -it contradicted the certificate of Vidal, the commandant, that he had done so ; that the road had been cut by said Thompson as he proposed and was required to do. The court sustained the ‘objections, and the defendant’s counsel excepted to the opinion of the court.</p> <p>There was judgment for the defendants, dissolving the injunction, and that they recover $400 from the plaintiff for the use of the parish ; the plaintiff appealed.</p>

Western Dis. APPEAL mOJt THE COURT OP THE SEVENTH JUDICIAL DISTRICT POR THE _ PARISH OP OUACHITA, THE JUDGE OP THE FIFTH PRESIDING, This suit commenced by attachment.

W ESTHIÍ V DlS. AETEAI. I'Roll THE COURT OF THE SEVENTH DISTRICT, FOR THE PARISH OF OUACHITA, THE JUDGE OF THE FIFTH PRESIDING. This is an appeal from a judgment on a recognizance or bail bond. The defendant being committed on a criminal charge gave bail for his appearance at court at the April term, 1841, for the parish of Ouachita.

Western Dis. APPEAL ÍRONC THE COURT OP THE SIXTH DISTRICT POR THE PARÍSH O? RAPIDES, THE JUDGE THEREOF PRESIDING*. This is an action on a promissory note, signed by the defendant the 3d February, 1830, for $1655 95, payable to the order of Stephen Tippett, and by him and others endorsed. On the 11th April, 1837, the note was transferred to the plaintiff and before it was due, by the Tippetts, subrogating him to all their rights against the maker.

Westers Bis, APPEAR FROM THE COURT OF THE 2ÍIKTH DISTRICT, FOR THE PARISH OF CONCORDIA,, THE JUDGE THEREOF PRESIDING. This is an action by the wife against the husband for a separation from, bed and hoard, and also for a separation and partition of property. , The plaintiff alleges, that in the spring of 1834, being on a visit to the city of Troy, in New York, where her daughter by a former marriage was then at school, she intermarried with.

Western tilg. AFFBAL FROM THE COURT OF THE TENTH DISTRICT, FOR THE PARISH OF NATCHITOCHES, THE JUDGE THEREOF PRESIDING. This is an action by one endorser against his two previous endorsers, on a note for $3000, dated the 6th April, 1838, payable to the order of P. Petrovic, 34 months after date, and which, was discounted in bank; protested for non-payment# and taken up by the plaintiff Under protest.

Western Dis. AÍPIAE FROM THE COURT OP THE TENTH DISTRICT POR THE PARISH OP NATCHITOCHES, THE JUDGE THEREOF PEESIDINO. This is a revocatory action, to set aside a sale of his estate made by F. Rouquer, the father to J. B. O. Rouquer, his son, on the ground of undue preference given to some creditors over the plaintiffs, who are complainining creditors.