Volume 2 — Louisiana Reports

On the 8th of December 1821, Jean-Baptiste Berard purchased, thro’ the agency of his son, at the sale of his fathers’ succession, a back concession of land, containing twelve arpents front with the depth of forty, for the sum of $1,600. The land was described in the proces-verbal of sale as lot No. 139, consisting of wood, as sold as uncultivable land.

This suit is brought on an account exhibited by Francois Marc, nephew and heir of his deceased uncle, who was curate of the Roman Catholic Church of St. Martinsville-, against the Church warden’s to recover a sum of money a!--leged to have been advanced by the curate in his life time for the use and benefit of the chufch.

The heirs of L. Guilbeau brought suit against Michel Cornier for settlement and restitution of her half of the community formerly existing between them in her life-time ; she being his first wife.- Agnes Rodrigues, the' second wife of Cornier, intervened and claimed the' amount of property she brought into marriage as paraphernal, with mortgage on all her husband’s property for its restitution.

<p>appeal pkom the court oe the pipth judicial dis= TRICT, THE JUDGE OE THE SEVENTH PRESIDING.</p> <p>This suit was instituted the 2d of April, 1825, by the heirs and widow of Charles Melanqon, deceased, against Pierre Broussard andDr.JohnDuhamel to set aside and declare null and void a judgment of the Supreme Court, rendered in favor of said Broussard against Duhamel, in which Melanpon’s heirs were cited by Duhamel in warranty, which judgment is alleged to have been obtained by fraud and collusion.</p> <p>The present plaintiffs instituted suit May 15, 18~2~2, against Dr. John Duhamel and his security Joseph Latiolais, in the parish of St. Martin, to recover $3,085, it being the second instalment of the price of a tract of land, 5 arpents front with the depth of 40, rpurchased by Duhamel at the sale of Melançon's succession.</p> <p>Five days after the commencement of this suit, Pierre Broussard instituted a suit against Dr. Duhamel for three and a half arpents of this very land, which Duhamel had bought at the sale of Melancon's succession. Duhamel caused the heirs of the succession to be cited in warranty. They appeared-filed an answer-plead the general issue, and prescription of thirty, and ten years.</p> <p>The five arpents' tract, now in dispute, for the second instalment of the purchase money of which Duhamel was also s~ied, had been originally the part of a forty arpents' tract belonging to the succession of one Le Dee, but had been partitioned out among several co-proprietors, among whom was Chas. Melançon, who had purchased of Le Dee's succession. One François Gonsoulin had been employed in 1799 to make this partition and divisicin. He made out an exact plot and survey, marking all the lines between the co-proprietors.</p> <p>Among other parcels of this division, the five arpent's tract, since sold at the sale of Melançon's succession to Dr. Duhamel, was included. This plot of survey contained a proces-verbal of the partition, and complete evidence of all the boundaries and lines of the several tracts into which the original one had been sub-divided. Pierre Broussard, also a co-proprietor of one of the tracts, with all the co-proprietors had assented to this proces-verbal of survey and partition in writing, by affixing their signatures. This book of survey containing complete evidence of all the boundaries between, and assented to by all the co-proprietors, was deposited with Gonsoulin. At thetrial of the cause between Broussard and Duhamel and the present plaintiffs who were caj¡e(j ¡n -warranty, an attempt was made to procure this book of survey to prove the true boundaries between jjjg parties. It could not be had. Gonsoulin was dead— his widow and heirs stated the book had been sent to New-Orleans, but could not recollect to whom. Melangon’s heirs, who were defending for Duhamel, suspecting some fraud and concealment applied twice, but without success. They had to submit to a trial without this book or document, by which alone they could have proved the survey and boundary of the five arpent’s tract, made to their ancestor with Broussard’s consent. They however obtained judgment in the District Court, quieting Duhamel in his possession. But on an appeal to the Supreme Court, the judgment of the District Court was reversed, and Broussard succeeded in evicting Duhamel of three and a half arpens of the land he purchased of Melangon’s succession.</p> <p>The chief ground of reversal was “ that it did not appear that the land of Le Dee (the original tract) was ever regularly and entirely laid out and partitioned amongst all the purchasers” &c. This matter would have been completely explained by the production of the last hook of survey..</p> <p>The petitioners charge Broussard and Duhamel with collusion and fraud, and shew that suit was brought by Brous-sard against Duhamel with the consónt and at the request of the latter, supposed to enable him to resist the payment of the last instalment of the price of the land ; and also that Broussard’s attorney agreed if he would permit the suit to be brought in his name, he would exempt him from the payment of fees and costs. The petitioners further charged fraud and collusion on Duhamel, Broussard and Gonsoulin’s heirs in concealing and suppressing the book of survey.</p> <p>The petitioners pray for the annulment of the judgment qf the Supreme Comí; and for the restitution of the property.</p> <p>Pierre Broussard answered by avering that the three and a half arpens of land were rightfully decreed to him by the Supreme Court denying a11 fraud and collusion. An order of Court was made, requiring the widow or heirs of Gonsoulin to produce the lost book of survey within two days. And soon afterwards, on the 26th. of January 1827, 'Pierre Broussard executed an act of renunciation, in which Tie acknowledged the existence of Gonsoulin’s hook of survey; and that he examined it and found the partition with the lines of the several tracks marked and surveyed; and that he had signed and approved the proces-verhal of survey; and now to put an end to all difficulties, he renounced all advantage arising from the judgment against Duhamel and voluntarily consented that it be [cancelled and annulled.</p> <p>By this time, Duhamel was dead and his estate insolvent-The curator of his vacant succession, in answer to an amended petition of the plaintiffs, setting up the act of renunciation of Pierre Broussard, charged said act as collusive between Broussard and the petitioners, being obtained by threats and pecuniary aid. He also plead that the decree of the Supreme Court between Broussard and Du-hamel was final, in as much as Duhamel was evicted and disposessed of the land.</p> <p>Joseph Latiolais, thes ecurity of Duhamel, in the purchase of the five arpents’ tract, at the sale of Melanqon’s succession, now intervened. He charged collusion and fraud, in making the act of renunciation by Broussard — prayed that the judgment of the Supreme Court, which is attacked in tins suit may stand, and that he be released from his security-ship in consequence thereof.</p> <p>The District Court gave judgment for the plaintiffs annuls ling the judgment of the Supreme Court in favor of Broussard against Duhamel, as having been obtained thro’ fraud and collusion : and also on the ground that Pierre Broussard having renounced “all right and advantage , . „ arising under it”</p> <p>Dumartrait the curator of Duhamel’s vacant estate ap- , 1 pealed*</p> <p>Mr. Brownson submitted the following argument.</p> <p>It is urged, that no action of nullity can be maintained in this case, because the judgment, sought to be annulled, was rendered in the Supreme Court: but that such suits must be brought before the tribunal which pronounced the judgment intended to be annulled — Code of Practice Art. 608. 611 and 611.</p> <p>The present suit was commenced before the Code of Practice had been adopted ; but if it had not, it is conceived that this law does not impair the right to maintain such an action.</p> <p>—Code of Practice, Art. 607.</p> <p>When the nullity is apparent on the record, it can be claimed on appeal. — Ibid. Art. 609.</p> <p>Every judgment of this Court, when given on the merits, is such as the inferior tribunal ought to have rendered.</p> <p>It is in fact considered for all effective purposes as the judgment of the inferior tribunal. It is pronounced on the facts certified by the lower Court, and then sent down to be investigated and executed as one of its own judgments.</p> <p>To annul a judgment of this Court, a suit cannbt be originated here, yet it is believed that one may be instituted in that Court, whose judgment this tribunal is required to pronounce. Let it be observed that the Code of Practice in giving a right to maintain such an action, states affirmatively and in general terms where it may be brought. The Code imposes no limitation upon the exercice of the right itself. On the contrary, it says generally that such an action may be maintained not to avoid or annul judgments of the District Court only, but all judgments fraudulently obtained.</p> <p>In saying that the action of nullity may be demanded from the same court, which rendered the original judgment, it does not say that it may wot be demanded in any casé elsewhere. There is no very obvious reason for applying here the maxim inclusio unius exclusis alterius.</p> <p>To attack a judgment procured by the fraudulent conduct of the party, tho’ formally pronounced by this Court, implies no disrespect of its opinions. No good reason of justice or policy occurs to us for making this honorable tribunal the favored instrument to perpetuate fraud.</p> <p>Under the Spanish law, the reason for commencing such suits in the Court whose judgment was attacked applied as well to Courts of Appellate, as to those of original jurisdiction. The trial in the Appellate Court was had de novo. Feb. Ad. Part 2. Lib. 3. Cap. 1. sec. 13. No. 462. The right to institute such an action, was well understood in Spain. Ibid. No. 491.</p> <p>The three following cases are specified:</p> <p>“ Io. Quando él que fué condenado en ella hallo poste-riormente nuevos instrumentos; pues aunque sea mayar de 25 anos, puede pretender se rescinda par via de restitución, la cuál le compete para la clausula general, si qua mihi alia causa justa isse videbitur y debe diferirse a ella par la igno-rancia y legitimo impedimento que tuvo para no haberles pro-ducido.”</p> <p>“ IOS. Quando el que obtuvo la sentencia confiesa que es injusta, pueslaprescensionde derecho que tenia a su favor usa por su confesión.”</p> <p>11®. Quando se dio pruebas falsas de testigos o instrumen-tos, ynosealegoniconocio de su falsedad, en cuyo caso, el agraviado ha de pedir el mismo juez por via de restitución, que rescinda su sentencia, citando a la parte contraria, lo cuál debe hacerse prueba lafálsedad en lo que forma, y para alegar y probarla, le concede la ley veinte amos y nomos.”— Vide also Cur. Phil. Sent. No. 12.</p> <p>When it is proper to bring the action in the superior tod wjjen jn ;nferior Court, will be seen on reference to the same title, No. 15.</p> <p>jn tjie cage now before the Court, the party obtaining the first judgment, has renounced all the advantages resulting from it and specially consented in writing that it may be annulled.</p> <p>The motive for this renunciation and agreement, is in substance that the judgment was unjustly obtained. We have seen that by the Spanish law such a confession without any express agreement or renunciation, would be sufficient to authorise a claim of nullity. That law can be cited to shew that a party may not renounce a mere private advantage.</p> <p>Has the District Court erred in carrying into effect the express agreement of the parties 1</p> <p>This suit is brought to annul a .judgment rendered by the Supreme Court, which judgment is reported in 3 Mar. N. S. 11.</p> <p>1. The grounds ofnullity are fraud arid collusion between the plaintiff and Duhamel in the original suit/ and the discovery of a document alledged to have been concealed by the parties. It was a principle of the Spanish law that sen-tentia tenet nee rescinditur pretender instrumentorumposteor repertorum. — Greg. Lopez.</p> <p>2. The judgment of this Court, which is sought to be annulled, had reversed the judgment of the lower tribunal; so that the judgment attacked is not the judgment of the District Court, but the' judgment of a Court of appellate jurisdiction.</p> <p>3. The action of nullity cannot be maintained, as it ought to be brought before the same tribunal — the same Court which had rendered it. And as the Supreme Court has no original jurisdiction, there is absolute impossibility of attack-</p> <p>ing its judgments by way of an action of nullity, was so under the Spanish codes, — it is so under our Code. The present suit must be dismissed, and the judgment attacked allowed to have its full force and effect. — Partida 3. Lib. 22. Law 19. — Ley 6 and 8 — tit. 17. Lib. 4. Recopi-lación. — And Ley 4. Tit. 21. Lib. 4. — ibid. Ley 19 and 24. Tit. 9. Lib. 3. Recop. Code of Practice, Art. 608, 610 and 611. The law</p> <p>4. There are only two ways of annulling a judgment.</p> <p>1. By taking an appeal. 2. When no appeal has been taken, by bringing an action of nullity before the same tribunal which has rendered- the judgment sought to be annulled.</p> <p>5, If judgments could be otherwise annulled, there would be no certainty in judgments rendered by this Court. Actions of nullity would be often brought against them, if not with the hope of annulling them, they would be resorted to for the purpose of suspending execution and causing delay,</p>

The plaintiffs Ryan, Taylor and Evans were judgment creditors of one Thomas S. Saul, then cashier of the Branch Bank of Louisiana at Opelousas, to the amount of $ 761 64. for amount of judgments obtained at the November term 1828, of the District Court of the Parish of St. Landry. On thelst. of October 1828, Saul being much indebted conveyed to the defendants W. G. Knox, Robert Rogers, Joseph Andrew, Robert Taylor, Geo.

The plaintiff, William Edgar, instituted suit against William and John Simons on a bill of exchange for $922, dated, Opelousas, January 11th., 1827 — drawn by William Simons & Co. (the style of the firm at Opelousas) on John Simons &Co. in New-Orleans. — Both firms embracing the samepersons, viz: Wm. & John Simons. The bill was payable in November, 1827, and February 1828.

LANDRY. This is a suit brought by the petitioner in the Probate Court, who alledges she is the mother of Eleonor O’Dono-gan deceased, late wife of Wm. G. Knox, who died on the 31st day of November 1829 leaving neither descendants nor ascendants, and that she is entitled to the succession of her deceased daughter. The petitioner alledges her daughter died, leaving a large property in community with her husband Wm.

The petitioners John Hagan and Thomas Mellon, merchants of New-Orleans, trading under the firm bf Hagan and Mellon, claim in their petition of the defendant W. L. Brent, $1346. 56 with 10 per cent interest from July 1. 1S~6, until paid. They aUedge that they forwarded to Wm. & 3. Moore of Opelousas, a claim against Miles & Vaughan of St. Martin.

<p>APPEAL PROM THE COURT OP THE FXPTH JUDICIAL DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.</p> <p>This is an action of nullity to annul and set aside a judgment of the District Court, rendered against the present plaintiff, for alledged defects in service of citation and appearance by her husband, and filing answer for her without her consent or authority — and for various other defects and informalities. It commences by injunction against Hathem’s judgment.</p> <p>On the 29 of August 1826, D. K. Markham, attorney at law, and Anne Dugat, widow of the late Mann Martin, of the Parish of Lafayette, signed articles of marriage contract, stipulating that no community of property should exist, and that each one should administer their own effects, separately and independently of each other. The second article provided as follows, viz:</p> <p>`l1he future wife, in consequence of her having reserved to herse]f the sole administration of her property, is to support the entire charges of matrimon~j.</p> <p>The marriage between the contracting spouses was consummated the same day, and they both went to reside on the plantation of the wife in the Parish of Lafayette. In the Summer of 1828, while the crop was in cultivation (the husband Markham superintending the hands and working with them) the negroes rebelled against his authority, and were encouraged and instigated to do so, by the wife's children, who had become exceedingly hostile to Markham. Until then, it ,,appears he had lived in harmony with his wife. But the disafrl'ection in the family soon extended to the wife, and on the 20th of August 1828, Markham was compelled to leave the plantation. He went into the village, commenced boarding with Wm. Ilathern, who kept a tavern, and resumed his profession. The wife ever afterwards refused to live with him. On the 20th April 1829, Markham regularly advertised his domicil in the Parish of St. Landry, and took up his residence in the town of Opelousas; boarded at a public taver~i and rented a small house for a law-ofilce. He made various overtures to his wife, to bring about a reconciliation and invited her to follow him and reside at his new domicil. She declined all.</p> <p>Wm. Hathern instituted suit against Markham and wife, in the parish of St. Landry, at the May term 1829 for the amount of Markham's boarding account and tavern biil, amounting to $305. 5Q, while living with him, and obtained judgment against both for $263.75 with interest and cost. The petition prayed that Markham and wife be both cited to appear and be ¡condemned jointly and severally to pay the amount of the claim. Citation were left at Mark-hams5 new domicil in Opelousas for himself and wife.— Markham appeared and answered in Court to the petition for himself and wife. Both were sued as residents of the Parish of St. Landry, when in fact the wife never left her residence in the Parish of Lafayette. The wife was made liable for the debt of the husband under the clause of the marriage contract, by which she binds herself to support the entire charges of matrimony.</p> <p>A fi fa issued on this Judgment and was levied on the property of Mrs. Markham (Anne Dugat) in the Parish of Lafayette, who on the 5th of September 1829, presented her petition and obtained an injunction against the execution staying any further proceedings thereon.-</p> <p>She alledges that she has never been legally cited and was not bound to appear and answer to the judgment of Hathern; that altho5 her husband had removed to another Parish she was not bound to follow him, because he had not provided a suitable domicil for her. She denies that her husband had any authority to appear and answer for her to the suit of Hathern — that not being legally cited she consequently had no legal notice of the suit, and judgment could not be legally given against her.</p> <p>She further alleges, she is not bound under the 2d clause of the marriage contract, in which she engages to support all the charges of matrimony, to pay all such debts as her husband may contract; but only to an amount not exceeding her annual income from her property; and invokes the protection of the laws against any sum beyond this. She prays that Hathern and Markham be cited, and that the judgment rendered against her and her husband be annulled and set aside, and the decree annulling the same be rendered contradictorily with her husband, who had no authority to • , . , . . appearand answer tor her. She further-prays that the amount she is to pay for the charges of matrimony be definitively fixed, to serve as a rule and guide to her hereafter.</p> <p>Markham and Hathern appeared and filed' separate exceptions to the plaintiff’s petition.</p> <p>D. K. Markham excepts and prays the petition may be abated.</p> <p>1. That there is no law permitting a married woman to bring such an action as this, against her husband.</p> <p>2. That Wm. Hathern is illegally joined with him, which deprives him of Hathem’s testimony, -whose interest is adverse to his.</p> <p>3. The petition and citation do not set forth the domicile of this defendant.</p> <p>4. That plaintiff has falsely set forth her own place of domicil, it being in the Parish of St. Landry and not Lafayette.</p> <p>5. That the plaintiff has not set out a sufficient cause of action.</p> <p>6. The petition does not state the place of residence or where defendant lives.</p> <p>7. The petition does not contain a clear and precise statement of the object of demand, or such demand as a married woman may make judicially upon her husband.</p> <p>Hathern, excepted — 1. That his domicil is in a different parish from the one in which the suit is brought.</p> <p>2. That he is a judgment creditor of plaintiff and she has shown no legal cause to have his judgment annulled.</p> <p>3. That the plaintiff has improperly joined in this suit, causes of action which are separate and distinct, by making her husband his co-defendant in this suit, whose interest is opposed to his.</p> <p>4. That his judgment against the present plaintiff, remains unappealed from, unanswered, and definitive, and forms res judicata.</p> <p>The District Court by its judgment sustained the forego, ing exceptions — dissolved the injunction and gave judgment against the plaintiff for all the costs of suit.</p> <p>The judgment of Hathern ought to be annulled, and the injunction made perpetual.</p> <p>1. Because Markham had no authority to appear and file an answer for his wife.</p> <p>2. There is a stipulation in the marriage contract by which the spouses are to live separated in property — each administering his own: but the wife paying the charges of matrimony. so that Hathern’s claim arises out of the wife’s obligation, and relates to her separate interest over which the husband has no control; it being only necessary to sue him with her to enable her to defend. Code of Prac. Art. 118.</p> <p>3. The right of the husband to appear and defend for the wife, is only given when her property is under his administration. In this case her interest is in direct opposition to his— the act of her husband gave rise to the claim set up against her; in which she has not only to contend against the creditor, but against her husband, and to dispute the act of her husband for which she is sought to be made liable. Code of Prac. Art: 107,</p> <p>4. No judgment having been taken by default, and no legal appearance made by the defendant, she ought not to be bound by it. It should be annulled.</p> <p>The plaintiff’s claim for damages cannot be sustained, because in the suit against Markham and wife, the husband alone had the right to defend. Code of Prac. 106 — 7—8. 118. Louisa. Code 126.</p> <p>2. If the property of the wife be dotal as set forth by her, in that case, her husband alone had the right to appear for her in the suit. La. Code. 2330.</p> <p>3. D. K. Markham being an Attorney at Law, his authority to appear for his wife will be presumed. 8 Mar. N. S.. 232.</p> <p>4. The wife being notified by her husband that he had appeared and answered for her — her silence will be construed as tacitly consenting to it: and the decision of the Court refusing Markham to withdraw the answer, forms res judicata, being unappealed from.</p> <p>5. The prayer for the Court to apportion her revenues and say how far she is to be bound to support the charges of matrimony cannot be enquired into here, the original judgment not being appealed from. .</p> <p>6. The correctness of a judicial decision can only be en-quired into by — 1. Appeal, 2. Direct action of nullity against the judgment creditor. 3. By recision.</p> <p>The judgment is regular — having been obtained against Markham and wife in solido, who were both sued in the Parish to which the husband had changed his domicil according to law. — the domicil of the husband being that of the wife. La. Code. 42, 43, 44, 48, 122. Code of Pr. Art. 162.</p> <p>2. Appearance and pleading to the merits, cure all defects and Waive a plea to the jurisdiction. 1. Mar. N. S. 201. 1 Toul. 88, No. 103. 105.</p> <p>3. The husband is authorised by law, to appear and put in a plea or answer for his wife. La. Code. 2330. Code ofPr. 104. 107.</p> <p>4. As to Hathern the plaintiff cannot maintain this suit, because she and Markham are condemned in solido, each one for the whole debt — and this judgment is in force, unap-pealed from, therefore it forms res judicata, between the parties.</p> <p>5. This suit is neither an appeal from Hathern’s judgment, nor an action of nullity for any of the causes known to the law — consequently it cannot be maintained. Code of Pr. Art. 605.</p>

This is- an injunction suit, instituted by the wife, against the syndic of the creditors of her insolvent husband, B. Mar-til to restrain him from selling the immovable property and slaves of the insolvent, until her claim for property and money brought into marriage is first satisfied by a sale for cash. She backs her claim by a tacit mortgage on the property of her husband.

By order of the Police Jury, the Treasurer of the Parish of St. Landry instituted suit against Benjamin S. Haw, late sheriff of said Parish, and his securities Joseph Andres, Luke Lessassier, Eloi Landry and Alexander Robb, on their bond for the amount of the Parish taxes, due for the year 1827, amounting to $3,190. 69, which it was alleged the sheriff had received and failed to pay over to the Parish Treasurer.

This suit was commenced in the District Court by the plaintiff against the defendant, as her curator ad bona, who is her uncle, and also the parish judge of the parish • of St. Landry, to compel him “ to render an account of. his administration. ” Judge King was appointed curator ad bona to the plaintiff the 8th of October, 1812, by the lion. Geo. Mathews, then one of the judges of the Superior Court of the Ox-leans teritory.

}s an action on a bill of exchange drawn by the firm of Lastrapes Fréreson a commercial house in New-Orleans, trading under the style and firm of Plauché' & Courcelle, in favor of Louis F. Lastrapes who endorsed it, dated, Ope-loussas, 16th September, 1828.

This suit is brought by the curator of the vacant succession of James Keith deceased, against William Hathern to ■ compelí him to explain and settle a certain partnership transaction which had existed between them in the life time of Keith, and to require Hathern to pay over to the sue-eessor such balance as due and owing on account of said . partnership.

This is an action on a promissory note, executed by Alis Demaret, Tutrix, &c. of the minors of Jefferson Caffery, deceased, and W. Stirling, as joint makers,, and Donelson Caffery as endorser, for $640,25, dated, Opelousas, 26th June, 1828, and discounted at the Branch Bank of the State of Louisiana, at Opelousas. The note reads “Ipro-mise to pay to the order of Donelson Caffery &c.” but is ' signed by two persons as drawers, already named.

A judgment was obtained at the fall term 1829 of the District Court of St. Martin by Elizabeth M. Dangerfield, Executrix of H. Dangerfield, and against the heirs of Charles M. Thruston for $1838 78, with interest and costs. There were two heirs Alfred and Edmund Thruston. The petitioner was the wife of Alfred now deceased, and as such became his representative and heir.

<p>APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.</p> <p>This is a suit brought to recover</p> <p>from the defendant Russell, the amount of two security bonds, with interest, damages and cost, which the plaintiff had to pay for Russell in the state of Alabama.</p> <p>In the Court below, the jury found two verdicts — one for $3,515 19, interests and costs, the amount of one bond;— the other for $1,621 with like interests and costs-, being the amount of the second bond. On the two sums thus found, .the Court gave judgment.</p> <p>The defendant had set up a claim for certain property on Dog river, near Mobile Point, which he had conveyed to the plaintiff for $4000. This the plaintiff contends was intended to indemnify him against other securities and responsibilities he was under for the defendant, and which he had paid. It is shewn by the evidence in the cause.</p> <p>The Dog river property was conveyed to the plaintiff to secure him against all his liabilities for the defendant. It was valuable and abundantly sufficient for this purpose, and has never been accounted for by Montgomery.</p> <p>1. The defendant has the right to enquire into the validity of the judgments on the security bonds in Alabama, upon which the verdict and judgments are based in this Court. The original security bond should have been produced on the trial here, as the best evidence, and not a transcript copy. La. Code, art. 3005.</p> <p>2. The security bond in the second case was originally given in Alabama for the hire of African slaves, and was illegal and void, because given-for the hire of property illicitly brought into the country. The principal being absent at the time a recovery was had on it, Montgomery the security was remiss in not preventing such recovery. The validity of such judgment was a subject of proper enquiry here, and the verdict and judgment rendered on it illegal.. La.' Code, 3005. 6 Toullier 191, 183.</p>

AFPEAIr FROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE FIFTH PRESIDING. The plaintiff Thomas C. Scott claims 300 acres of land on Bayou Rapides adjoining himself above and the defendant Calvit below. It was confirmed to one Kilgour by virtue of a Spanish grant. After several conveyances, it came into the possession of Wm.

Dennis Carlin executed his note to Dr. Stewart on the 13th of May 1829, for §227 — payable on demand with ten per cent interest until paid. The note was given for medical services. The defendant alledges that there was an understanding between him and the plaintiff that payment was not to be demanded until the ensuing year: and that notes and accounts on other persons were to be taken in payment.

, Carlin instituted suit to recover damages of Stewart for calling him “ a perjured villian” and laid the damages at .$5000. Dr. Stewart had given medical attendance to a negro woman, a nurse, belonging to the estate of Curtis’, but who lived in Carlin’s family at the time. His bill amounted to $56. He called on Carlin, whom he believed was cognizable to all the facts, and would prove his account to the administrator of Curtis’s estate.

<p>APPEAL FROM THE COÜRT OF THE SEVENTH JUDICIAL DISTRICT, THE JUDGE OF THE DISTRICT PRESIDING,</p> <p>The note sued on was dated, February 19th., 1825, and , , . , . . ... had been given on a settlement between the parties tor the balance due for the purchase of 8 slaves by the defendants from the plaintiff. The note was given for $2,103 78 with interest at 10 per cent, until paid. It was given after several renewals of previous notes, in which it clearly appeared from the record, that coventional interest had been faithfully and correctly computed.</p> <p>The defendants set up in defence, a redhibitory defect in one of the slaves, which was wholly unsupported by testimony. — Also, that the plaintiff gave a written act of sale, which was without date and thereby incomplete, and prayed for its completion before they should be compelled to make payment. Finally, exception was taken to the plaintiff’s answer to interrogatories as evasive and not categorical.</p> <p>A motion for a'new trial was made and overruled.</p>

The plaintiff and George Hamilton, one of the defendants intermarried the 4th of June 1814. On the day of marriage, previous to its celebration, articles of marriage contract were entered into between the parties, in which the wife is made to bring into the marriage 17 negroes, specified by name, estimated at $5,000 — subject to an incum-brance of $2,500, which she owed on them : and also 500 dollars in other property.

Richard W. Kay owed the estate of Jag. H. Gordon, deceased, $765, for which he executed his three notes for $255 each, dated January 15, 1820, payable in 1, 2 and 3 years from the date, with ten per cent interest from the date until paid. The notes were drawn payable to Maria C. Gordon, widow and a(lmlmstratrix of her husband's estate. Kay also gave a mortgage on a lot of ground iü Alexandria, to secure the payment of these notes, it being the lot sold to Kay by Gordon.

moved to dismiss the appeal in this°case — 1. Because the appeal bond not having been given for the amount ordered by the judge 5 6 j j o aquo. There being no statement of facts made out according to law.

<p>This was an application to the Supreme Judge for a mandamus to compel a Parish Judge, acting as auctioneer, to adjudicate to the applicant, a certain piece of property, for which he alledges he was the last and highest bidder.</p> <p>the Parish Judge of Rapides, to adjudicate to him and make a good title to a tract of land appraised to 900 dollars. The petitioner alledges that at the sale of the estate of Tabitha Jett, deceased, he became the last and highest bidder for a tract of 225 arpens of land, and that he bid the appraised value thereof, and no one bidding any more, he demanded of the Judge, who refused to adjudicate the land to him and make him a title accordingly. He avers he made atender of the sum of 900 dollars which the Judge dispensed with, and refused to receive.</p> <p>The petitioner prays for a writ of mandamus commanding the Parish Judge to adjudicate the land to him and make him a legal title thereto.</p>

Benjamin & Jemima Harrison (the husband and wife) executed their joint promissory note to Ailes & Morris, or order, for $ 482. 16, dated January I, 1827, payable the 1st. of May following. The note was given for merchandize sold, principally for the use of the wife and on her credit. Ailes and Morris sold or exchanged the note with the plaintiff by parol agreement; the latter taking it without recourse on the payees (Ailes and Morris).

The present plaintiffs were sued and evicted from their possession of 240 arpens of land by Arpiñes’ heirs. They omitted in their defence to claim the value of the improvements they had put on the land, and which had not been allowed in the judgment and eviction. Arpiñes’ heirs sold the land and improvements by them recovered, to the defendants, who dispossessed Harrison and wife without paying them for their improvements.

The petitioner Grayson hired two negro boys from Bow-den, one of the defendants, to continue from January 1829, to January 1830. On the 15th of October 1829, James A, Wooldridge one of the defendants, came to thejplaintiff’s plantation & took forcible possession of the two slaves, claiming them as his own. It appears he had purchased them of Bow-den, the other defendant but a few days before, and with a knowledge of their being hired to the plaintiff.

APPEAL PROM THE COÜRT OP THE SEVENTH JUDICIAL DISTRICT, THE JUDGE OP THE SIXTH PRESIDING. Rife claims of Henson $250 as the price of improvements made on certain Congress lands, according to an agreement with Henson. Henson denies owing any thing — and says he purchased out all Rife’s interest in the improvements in the year 1823.

■: On the 33d of June 1826, the defendant Wm. Wooldridge and J. J. Bowie, executed their joint note to Viney Faulk for $600 — for the purchase of two tracts of land containing 440 arpens.

On the 15th of April 1828, F. Morgan obtained an injunction against an execution in favor of ,H. Pargoud, which had been levied on several bales of cotton estimated at $■400, the property of E. K. Ross ; Morgan claimed the property as a creditor of Ross, who is alleged to be in insolvent circumstances. The property was released by the sheriff to Morgan on his executing an injunction bond, with E. K. Wilson his security.

The plaintiff sold to the defendant a lot of ground, opposite to the town of Alexandria, on the river, for $350, with interest. A note was executed, dated March 17, 1819, for 350 dollars. At the time of the sale, a bridge was about to be built across Red River, which would have connected the two sides, and rendered the lot purchased very valuable. The scheme of building the bridge, was soon afterwards abandoned, and the property became comparatively worthless.

John B. Madry purchased the negro Jack, nowin suit between the plaintiff and defendant, of one Henry Hunter, in January 1828, for 475 dollars ; Hunter had bought him of one Robert Dawson. Previous to these transactions, and in November 1825, John G. Young, the defendant, purchased the same negro of Jos. Young, who had purchased him at the probate sale of a succession.

This was an attachment against the schooner Elizabeth for supplies furnished. The petition stated that John Boyd & Andrew Armstrong composed the firm of John Boyd & Co. — That they were owners of the vessel, and that Junelot was master, who was also made party to the suit. The latter in his answer disclaimed any interest in the vessel, and Boyd & Co. pleaded the general issue.

The opposing creditor claimed to be placed on the tableau of the insolvent Dorsey, in preference to the creditors of Morgan, Dorsey & Co. by virtue of a promissory note which he held, upon which… Held: upon which Dorsey was endorser. — The note was dated 27th May, 1825 — endorsed the same day— payable one year after date, and protested at maturity. There was judgment for the opposing creditor, and the syn-dics of Morgan, Dorsey & Co. appealed. 1.

<p>An agreement made in New York to be executed there, must be governed by the laws of that state — if such contract is usurious and void by the laws of New York it will be considered so here, because this court must decide the cause here as it would be decided there. The statute of the state of New York prohibits taking more than seven per cent for the loan of money, and by the terms of the statute the prohibition is extended to war es, merchandise, or any thing else.</p> <p>If in the exchange of notes between A and B, more than seven per cent per annum as interest be taken, the contract is tainted with usury, and void according to the decisions of the courts of New-York on that statute.</p> <p>Those courts have established the maxim that by no shift or device can more interest be taken, or profit made, than that which the law permits on the loan of money.</p> <p>When A agrees with B to exchange their respective notes bearing interest at the rate of six per cent, per annum, and in consideration thereof to insure with B the lives of different individuals, and to consign his sugar crop in Louisiana to B, for sale in New York on commission, this agreement is null and void under the aforesaid statute of New York against usury.</p> <p>An agreement made in ÑewYork to be executed there, must he governed by the laws of that state —if such contract is usurious and void by the law» of the state of N. York it will be considered so here because this court must decide th° cause here as it would be decided there. The statute of the state of N. taking*'morocha» seven per cent for the loan of money, and by the tute the prohibi-tares^^menfoan-dises>" ?r, *ny -thing whatsoever.</p> <p>If in the exchange of notes batween A and B, more than seven per cent per an-num be taken, the contract is tainted with usury, and void according to the decisions of the courts of New York on that statute.</p> <p>Those courts have established th e maxim that by no shift or device can more interest be taken, or profit made, than that which the law permits on the loan of money.</p> <p>Where A agreed with B to exchange their re-spetive notes hearing interest at the rate of six per cent per annum and in consideration thereof to insure with B the lives of different individuals, fy to consign his sugar crop in Louisiana to B for sale in New York on commission, this agreement is null and void under the aforesaid statute of N York.</p>

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>This cause was subrhittted upon a statement of facts which are given in the opinion of the court.</p>

AFPEAL FROM THE COURT OF THE FIRST DISTRICT, Suit upon a promissory note to which the defendant plead the general issue and set up a claim in reconvention. A judgment was rendered for the plaintiffs in the court below, and the defendant appealed after having failed in his motion for a new trial. — On the appeal the appellees opposed to the claim in reconvention the plea of prescription, -

This was an action to rescind the sale of certain slaves, made to the defendants by one Kimball. It appeared from the testimony, that the plaintiff sold the slaves to Kimball in the State of Mississippi, on the 8th of September, 1828. Kimball paid a part of the price, and gave a draft for the remainder which was protested.

This action was first instituted in the Parish Court, and after cession of goods by the defendant Warfield, was transferred to the District Court, wherein proceedings had been instituted by the insolvent. The object of the suit in the first instance 'was to dissolve a partnership which existed between the plaintiff and defendant in relation to their business as Innkeepers, and to obtain a settlement of their accounts.

<p>' APPEAL FROM THE COURT OF THE PARISH OF THE CITV OF NEW-ORLEANS.</p> <p>The plaintiff, owner of the schooner Mayflower, brought this suit to recover from the defendants the sum of $1025,' being the excess of tonnage fees imposed upon the vessel. It appeared, from the evidence, that the schooner was of twelve tons, and had been rated by the defendants at eigh- , teen, and at that rate paid by the plaintiff He obtained a judgment for the excess, and the defendants appealed.</p>

A supplemental petition was filed in this case, to which the defendant did not answer. The cause was submitted to . a jury who found a verdict for the plaintiff, and the defendant appealed. 1. The judgment was rendered without issue, being joined^ no answer having been filed to the amended petition of plaintiff. 2 Martin, N. S. P. 256 ; 8 Martin, N. S. P. 297. 1.

APFEAl FROM THE COURT OF THE FIRST DISTRICT. In this case a witness had been subphoened by the defendant, and the return of the sheriff showed that he could not be found.

The plaintiffs set forth in their petition, that certain slaves upon which they had a mortgage, had come by purchase or otherwise, into the hands of the defendant, who claimed them as owner an.d third possessor.

This was an action by the heirs to compel the vendee of a co-heir to contribute to the payment of a debt for which . ... .... , . . the estate in ins possession had been mortgaged by the ancestor. Their was judgment for the defendant and the plaintiffs •appealed.

The plaintiff obtained a judgment against Mary Cobb, one of the defendants, for a slave, and having failed in his efforts to get possession, brought this suit to recover the value and hire. The answer set up the following grounds of defence: 1. That the judgment was null and void for want of the reasons upon which it was rendered. 3. That she had a good and legal defence, which would have been made but for the fraudulent representations of the plaintiff’s attorney.

The executor appealed from a decree of the Court of Probates, which directed him to pay to the defendants, the money in his hands, belonging to the estate of their ancestor. Pending this appeal the defendants took a rule on him, to show cause why the money should not be deposited in the hands of the Register of Wills. The rule was made absolute, and its performance enforced by a writ of distringas.

APPEAL PROM TRE COURT OF TXXE TXfiRD DISTRICT, TUE JUDGE OF TUE E~IITU PREsIDING. This suit was brought in the name of the heirs of Doyle' assisted and represented by Chisoim, their under tutor, to recover two slaves in the possession of the defendant, which the latter had caused to be seized and sold, to satisfy a judgment he had obtained against the mother and tutrix, in her individual capacity. There was also a prayer for damages.

<p>APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF EAST BATON ROUGE.</p> <p>The plaintiffs were testamentary heirs of Joseph Mar-chand, who died in 1815, and of whom the defendant was executor. -</p> <p>They instituted suit in 1829, to compel the defendant to render an account. The defendant pleaded and exhibited a discharge, by the Probate Court, from his office of executor, in 1828. .</p> <p>The plaintiffs offered the petition and probate records, to shew that the discharge was an ex parte proceeding, and that the plaintiffs were minors unrepresented. The court rejected this evidence on the ground, that the order of discharge was a judgment or decree of the court, which was binding on all persons, until reversed by an appeal, or nullified by an action of nullity, and non-suited the plaintiffs, from which judgment this appeal was taken.</p> <p>1. That the judge erred, in rejecting the evidence to show that the plaintiffs were minors without tutors, &c. and were not parties when the defendant obtained his order of discharge as executor.</p> <p>2. An order of discharge of an executor, by a court of probates, on an ex-.parte liquidation of his accounts, constitutes no bar to an action to compel an account.</p> <p>3. Such an order is a nullity in itself, its nullity may be shewn when it is set up, and requires no appeal or previous action of nullity to neutralise it. It has no effect as to perSons not parties.</p>

This suit was brought to recover from the defendant the amount of a judgment which he had collected as attorney for the plaintiff. The defendant denied that the plaintiff had placed the claim in his hands, but averred that it was handed to him by Reuben Kemper (a brother of the plaintiff) with directions, when collected, to be placed to the credit of said Reuben, who was indebted to the respondent, and that it was so applied.

<p>APPEAL PROM THE COURT OP PROBATES OP EAST BATON ROUGE.</p>

<p>The plaintiff may interrogate the defendant as to the truth of the facts al-jeged in the petition; but the latter may except to an interrogatory which-from a blank being left therein, or other circumstances, is rendered unintelligible.</p>

APPEAL PRO1~ THE COURT OP THE EIGHTH DISTRICT, THiS JUDGE OP TUE POURTH PRESIDING. This was an action for the recoveryof a slave. On the trial of the cause, the plaintiff offered paroi evidence of the law of Mississippi, in relation to the mode of transferring slaves. To the introduction of this testimony, the defendant objected, unless it was firsf shown,that there existed no statute law on the same subject.

This was an action of nullity to set aside the proceedings in the case of Kirkland against his creditors, upon various grounds, which are given in the opinion of the court. To the plaintiff’s right of action, the defendant urged the following peremptory exception, to wit: That the plaintiff was put upon the Bilan in the insolvent proceedings complained of by him, and that he opposed the homologation of the tableau of distribution.

On the first day of January, 1827, the plaintiff leased a house to Hudson for one year, at one hundred dollars per month. The lease contained this clause: “It is likewise agreed that should Hudson require it, he will have the privi-ledge of remaining in the said house for the space of seven years longer, being from the first day of January, 1828, to the first day of January, 1835, he paying the same rent, say one hundred dollars per month.

<p>_ APPEAL PROM THE COURT OP THE PARISH AND CITY OF NEW-ORLEARS.</p>

<p>APPEAL PROM THE COURT OP THE POURTH DISTRICT, THE JUDGE THEREOP PRESIDING.</p> <p>This was an action for work- and labour, in which the plaintiff had a verdict, and the defendant appealed.</p> <p>On the trial of the cause, certain receipts were produced> which did not come up with the record. The clerk certified that the evidence was taken down in writing in open court, and that the record contained a true and faithful transcript of all the proceedings, as well as of the documents filed in the suit. This was followed by the certificate of the judge that the record contained all the evidence adduced on the trial.</p> <p>X. The merits cannot be gone into, as the appeal is not properly certified. C. P. art. 586, 896 — 8 Martin N. S' 303.</p> <p>2. The record does not contain all the evidence; three receipts are mentioned as produced, and they do not appear.</p> <p>3. The clerk has not certified to any evidence, but that which was taken from the mouth of the witnesses, and they do not prove the amount, but only the signature to . the receipts.</p> <p>4. It is a case where the judge cannot certify — he can only certify in those cases where the record contains all; but where the record itself shows that it has not all, then the certificate cannot avail.</p> <p>1. The appeal is properly certified. The testimony was taken in writing in open court,, as appeal’s from the certificate of the clerk, therefore no statement of facts was necessary and the judge could certify as he has done — C. P. art. 585, 586.</p> <p>2. The judge, it may fairly be presumed, was not called upon to certify, without an attempt, first having been made, to obtain an agreed statement of facts, and that he did not certify until convinced that his duty and the law required it.</p> <p>3. The case cited by plaintiffs from 8th Martin, N. S. does not apply; because there the evidence had not been taken in writing in open court. The decision is grounded upon arts. 602 and 603 of the Code of Practice, and those articles provide for the case, “ where the depositions of witnesses have not been taken in writing in the inferior court.”</p> <p>4. The verdict of the jury is entirely unsupported by the evidence, and the motion for a new trial ought to have prevailed. Weathersby vs. Latham ; 7 Martin, N. S. 310, Belden et al vs. Rose; 8 Martin, N. S. 167.</p>

This suit was brought to recover from the defendant, a slave, to which the latter set up title, under the will of his brother Joseph Thomas. On the trial of the cause, the defendant offered witnesses to prove, that they had seen and witnessed an instrument of writing, purporting to be the last will and testament of Joseph Thomas, deceased, and that they were sworn by the judge of probates, to prove the signature of the deceased, when the will was offered for probate.

By the 4th section of an act passed on the 25th March; 1828, it is provided, “ That in all cases where attachments, arrests and sequestrations, are demandable, the plaintiff,' his agent or attorney, having made affidavit, and given bond in conformity to law, and having filed the same in court, it shall be the duty of the clerk to issue, forthwith, the process required, without any petition being then presented; but that the usual petition shall be filed on the succeeding…

APPEAL PROIti THE COURT OP THE THIRD DISTRICT, THE JUDGE THEREOF PRESIDING. On appeal, the plaintiff’s title to the land in controversy was established, and the cause remanded, in order to ascertain the value of the improvements made by the defendant, while in good faith. The court below, decided that the . __ , „ defendants held possession m good faith, np to the 29th ot September, 1823, and permitted them to prove the value of the improvements up to that period.

The plaintiffs claimed the value of thirty-eight bales of cotton, which they had placed in the hands of the defendant, a commission merchant, for sale. The answer admitted the receipt and sate of eight bales-nett proceeds one hundred and ninety three dollars and thirty seven c~nts-but denied being responsible for the remainder, as it had been, without any fault of the respondent, consumed by fire.

This suit was brought to recover the value of materials furnished by the plaintiff to Passement, and employed by him in the construction of a building he had undertaken for Norwood. The plaintiff prayed for judgment against Pas-sement, and that Norwood be condemned to satisfy the same out of the amount due by her to Passement for the erection of the building. Norwood plead the general issue, and Passement admitted the correctness of the plaintiff’s claim.

The plaintiff obtained an injunction against the execution of a judgment which the defendant had recovered against him, and prayed that it might be declared null, for the following grounds’: 1. That on the trial of the cause, the defendant denied, on oath, certain fasts, which the plaintiff was now able to establish by the books of the defendant, and other competent evidence. 2.

This was an action by the creditors of an estate charging the curator with fraud and collusion; and praying that certain doings, which had operated to their injury, might be de-dared null and void. The defendant put in a plea to the jurisdiction of the court, which being sustained, the plaintiff appealed. contended: 1. That the petition showed an action against the defendant for fraudulent conduct in the administration of an estate,by which tile plaintiffs were enjoined. 2.

<p>APPEAL PROM THE COURT OE PROBATES EOR THE PARISH OF WEST FELICIANA.</p>

1TJD~E THEREOF PRESIDING. This suit was brought to recover the amount of a protested draft, which the defendant, Cash, as executor of Kirkland, had made and delivered to the plaintilTh. The petition concluded with a prayer for judgment against the defendant in his capacity of executor — that it might be satisfied out of the ¡funds of the estate, and for general relief.

<p>The decree of the Supreme Court remanding a suit against a firm, one of whom is insolvent, virtually cumulates the suit with the other proceedings in concurso.</p> <p>The payment of partnership debts by a solvent partner, ought not to delay the payment to the syndic, of moneys which he was otherwise entitled to receive.</p> <p>On the insolvency of a partner, his syndic has a concurrent, hut no exclusive right to the liquidation of the affairs.</p> <p>The decree of remSng 6a" suit against a firm, one of whom i« solvent virtually cumu-tte other proceedings in concurso.</p> <p>The payment of partnership debts by a solvent partner, ought not to delay the payment to the syndic, of moneys which he was otherwise entitled to reeeive.</p> <p>On the insolvency of a partner his syndic has a concurrent,but no exclusive right to the liquidation of the affairs.</p>

<p>APPEAL PROM THE COURT OP THE PARISH AND CITY OP NEW-ORLEANS.</p>

The defendant, testamentary executor of his deceased wife, having sold a slave which his testatrix had bequeathed to Rouquette, was sued by the plaintiffs (heirs of the legatee) to recover the proceeds of the sale. The defendant pleaded that the legatee, previous to her death, had released and abandoned to him, all right and title to the slave bequeathed to her by the testatrix. The court below gave judgment for the plaintiffs, and the defendant appealed. 1.

■ The brig Mississippi, on a voyage from Bordeaux to New-Orleans, encountered a gale of wind which broke both her masts, and while along side, attached by the rigging, they were cut away to save the ship, which afterwards put into Bilboa to refit. On her arrival in New-Orleans, a general average was made up, and this suit brought by the owner to compel the defendant, who had shipped on board a quantity of goods, to contribute his proportion of the loss amounting to $ 483 18.

The plaintiffs effected insurance upon their vessel chartered to the defendant for a voyage from New-Orleans to St. Jago Yeraguas, and from thence back to the port a quo. The petition charged, that the voyage was deviated from and the vessel lost, by which breach of contract, the plaintiffs had lost their recourse upon the Insurance Company, and the defendant had become liable to pay the value of the ves. sel.

After the cession of the insolvent’s property had been accepted by the Court of the First District, on the 30th of July, 1830; and all proceedings against his person and property stayed, a steam-boat which had been surrendered, was seized by Nicholson, Marshall of the United States District Court, at the suit of Victor David, a citizen of the State of Louisiana, and who had been placed on the bilan of the insolvent.

<p>A creditor of an insolvent who files his opposition to the homologation of the tableau, cannot afterwards urge any irregularities against the proceedings which might have been embraced in his first opposition.</p> <p>. ... A creditor or-an insolvent who files opposition to the homologation of notaftowardsurge any irregularities against the proceedings which might have been embraced in his first 0PP03ltl0n ■</p>

The defendant sued upon his promissory note, pleaded the general issue, and afterwards moved to file- an amended answer, setting, up a want of consideration. The court a quo overruled the motion, there was judgment for the plaintiff, and the defendant appealed. The judge erred in refusing an amendment to the defendant’s answer. prayed a confirmation of the judg-. ment with damages for a frivolous appeal. ■

Judgment was rendered against the defendant as endorser of a promissory note, from which he appealed. The record was brought up by the clerk of the lower court and the appellee cited, who prayed affirmation of the judgment, with damages, for a frivolous appeal. This was opposed on the ground, that the record should have been filed by the appellant, or brought up by the appellee.

This was a petitory action, in which both parties set up title to the land in controversy. Held: until 1817, when he was interrupted. That the defendants were in possession without title, against whom he prayed a decree for the land, and damages for its detention. On the record appeared a supplemental petition, in which the plaintiff set forth, that Trahan and wife, under whom he claimed, derived title from Zadock Brashears.

<p>APPEAL PROM THE COURT OP THE PIRST niSTRXCT,.</p> <p>By an ordinance of the City Council, of the‘24th August, 1829, the sale oí oysters is restricted to certain designated stands within the city and fauxbourgs, and the sale of them elsewhere, expressly prohibited under pain of a certain penalty.</p> <p>The plaintiff having violated this ordinance, by the sale of-oysters on property which he had leased for that purpose, was sued by the defendants, and judgment rendered against, him. He brought this suit to recover damages for the alleged wrongful interference of the defendants, and prayed they might be perpetually enjoined from disturbing him in the sale of wholesome oysters on the property which he had leased for that purpose. On the trial of the cause, the court a quo charged the juiy, that the city corporation had a right to assign places for the sale of oysters, and to prohibit their being sold elsewhere; and, further, that the plaintiff had no cause of action.</p> <p>To this eharge the plaintiff took his bill of exceptions.</p> <p>There was a verdict and judgment for the defendants, and the plaintiff appealed.</p> <p>1. The District Judge charged the jury erroneously in saying, that the corporation of New-Orleans had a right to prevent the plaintiff from selling oysters on his private property.</p> <p>2. The corporation of New-Orleans have no power granted by their charter, to pass an ordinance to that effect.</p>

<p>APPEAL PROM TRE ~O1JJtT OP PIlE T}11~ID ~ISTR!CT~ TEE JUDGE TUEREOE ~flESIDCNG.</p>

The defendants, residing in different districts, were made parties to this suit, the object of which was to obtain the cancelling of a note which the firm of W. & D. Flower had executed to Hagan & Co., and which Jones was attempting to off-sett against a judgment rendered against him at the suit of the Messrs. Flowers, in the parish of St. Tammany.

This suit was brought to recover the possession of two slaves, of which the plaintiff, alleged he had been fraudulently dispossessed by the defendant. It appealed from the evi-deuce, that the defendant had sent the slaves to the plaintiff, and at the same time received from the latter three others. The slaves remained with the plaintiff about two months, when they were ordered back by the defendant, to whom they returned.

This was a suit to recover as for a total loss, under a policy of insurance upon the schooner Rebecca and Eliza, on a voyage from New-Orleans to Tampico. The policy contained the following clause : “Warranted by the assured free from any charge, damage, or loss which may arise- in consequence of having been engaged in illicit or prohibited trade at any time whatsoever.” The defendants resisted the claim upon the following grounds: 1.

On a partition of the succession of Janathan Kemp, í claim to 1280 acres of land, appraised at $ 2400 in the inventory of the succession, was adjudicated to his widow at its appraised value. This claim had been entered in the office of the land commissioners, as two claims ; one in the name of the deceased, and the other an the name of his son, Caleb Kemp.

The plaintiff, residing in Buenos Ayres, at the request of the defendant,- purchased and shipped to the house of Z. Atkins, at Matanzas, of which the defendant -was a partner, five hundred quintals of jerked beef. In the letter authorizing the purchase, the plaintiff was directed to draw for payment on Delaplaine and Co. of New York,with an assurance from the defendant, that his drafts would be honored.

This suit was brought by the administrator of Franche-bois’ estate, and to his right of action, the defendant filed the' following exceptions: 1st, that all the heirs (of whom the defendant was one) being present and represented in the state, an administrator could hot be appointed : 2d, that all the property of the succession having been legally disposed of, there was no object upon which to administer: 3d, that the appointment of plaintiff as administrator, if ever made…

<p>APPEAL PROM THE COURT OP THE THIRD DISTRICT, THE JUDGE OF THE SECOND PRESIDING.</p> <p>The plaintiff constituted one Nettles his agent, to sell or exchange a slave, who made a verbal contract with the defendant, by which the latter received the plaintiff’s slave, and undertook to sell him to the best advantage. Nettles, át the same time, received from the defendant, a slave at the price of $ 600, which was delivered to the plaintiff, and which was to be paid for out of the proceeds of the plaintiff’s slave. On the 18th of February, 1829, the defendant executed to the plaintiff a bill of sale for the slave, which was received without any objection. The plaintiff’s slave was subsequently sold by the defendant for $ 640, twenty-five of which were paid over to the plaintiff. The slave received from the defendant,jhaving ran away and died, this suit was brought to recover damages, which were laid at $ 800, the alleged value of the slave delivered to Nettles.</p> <p>The points raised by the plaintiff were: 1st, that the agent exceeded his authority — he was limited to sell or exchange, and did neither: 2d, the defendant had no authority to sell the plaintiff’s slave: 3d, the plaintiff is not responsible for the slave of the defendant, and the measure of damages is the value of plaintiff’s slave. There was a verdict and judgment for the defendant, and the plaintiff appealed.</p>

<p>Where the case turns entirely upon a question of fact, the Supreme Court will not disturb the verdict of the jury.</p> <p>Where the ease turns entirely upon a question of fact, the supreme court will not disturb the verdict of the jury.</p>

The plaintiff was a partner of the defendant’s testator, in a plantation and slaves, situate in the parish of West Baton Rouge, wherein the deceased was domiciliated, and where his succession was opened. The defendant, a resident of the State of Mississippi, was appointed his executor, and, in concurrence with the plaintiff, caused the partnership property to be sold, under an order of the Court of Probates.

<p>The Court of Probates has exclusive jurisdiction to decide on claims for money which are brought against successions administered by testamentary executors.</p> <p>The Court of Probates has exclusive juriSdictiorL to decide on claims for money which are brought against su'cessjons administered by testa-mentory executors</p>

<p>APPEAL FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING.</p> <p>The facts are fully stated in the opinion of the court, delivered by</p>

In May 1829, the plaintiff obtained an injunction and prayed that the sheriff, and plaintiff in execution, who resided in another parish, might be cited to answer the petition. Service was made upon the sheriff, who put in an answer, but no steps were taken to bring the original plaintiff into court.

<p>APPEAL PROM THE COURT OE THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING.</p> <p>This case turned entirely upon the testimony, which is fully stated in the opinion of the court delivered by-</p>

Suit by the indorsee, against the maker of a promissory note, who pleaded a want of consideration, and that the plaintiff had no interest in the note. In support of the defence, interrogations were put to the plaintiff, who answered: that he was not the real owner of u > the note, but that it belonged to the trustees of the college 0f Bardstown, for whose interest, and by whose orders the suit was instituted.

The plaintiff’s property was seized to satisfy a judgment, which the defendant had obtained against him, and at the sale, the plaintiff became the purchaser. He afterwards brought an action of nullity to set aside the judgment. The court a quo, dismissed the action, and the plaintiff appealed.

On the refusal of the judge of probates to deliver to Jackson’s curator, the notes arising from the sale of certain slaves belonging to the succession, the'latter applied for a mandamus nisi; in answer to which, and as grounds for his refusal, the judge alleged: 1. That the curator had been ordered to render an account of his administration, and had failed to do so: 2.

In this suit the wife was included as a partner in the commercial firm existing between her husband and father. The court below dismissed the suit as to the wife, and gave judgment against the other defendants. The plaintiffs appealed.

<p>On the division of a parish the former Court of Probates retains its jurisdiction of successions theretofore opened.</p> <p>On the division of a parish the former court of probates retains its jurisdiction of successions thereto opened.</p>

<p>APPEAL rgoiu THE COURT op THE FOURTH DISTRICT THE JIJI)GE THEREOF PRESIDING.</p>

<p>APPEAL PROM THE COURT OP PROBATES OP THE PARISH OP ST. HELENA,</p>

A number of individuals subscribed a sum of money for the construction of a road, and appointed five commissioners to contract for the work. They employed Lamb, and transferred to him the subscription paper. Lamb collected from the subscribers large sums, and died before the completion of the work. The petition stated that one of the commissioners was dead, and this action was brought by the surviving four, to recover damages from the curator of Lamb.

The plaintiff’s testator, with the defendant, and eight others, became the sureties of one Gibbes, for the faithfull performance of his duties as paymaster to the 1st Regiment of Infantry of the United States’ army. Gibbes being in arrears to the government, suit was instituted against him and his sureties, upon their bond; and judgment obtained, which was wholly satisfied out of the estate of the plaintiff’s testator.

This case is in all respects similar to that just decided between the same plaintiffs and that of Ramsay, and must receive a similar decision.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p>

APPEAL PROM THE COÜRT OP THE FOURTH DISTRICT, THE JUDGE OP THE THIRD PRESIDING. The defendant excepted to the plaintiff’s right to sue as syndic of an insolvent, on the ground, that previous to the institution of the suit, he had filed a tableau of distribution, which had been homologated. The court sustained the exception, and the plaintiff appealed.

<p>APPEAL FROM THE COÜRT OF THE THIRD DISTRICT, THE JUDGE OF THE SECOND PRESIDING. '</p> <p>The facts are fully stated in the opinion of the court delivered by</p>

The plaintiff stated, that he was the legal owner and possessor of a tract of land, upon which the defendant had illegally entered and committed various- trespasses. The petition concluded with a prayer for damages, and a decree quieting the plaintiff in his title to and possession of the land.

On the 28th of June, auditors were appointed to examine the partnership accounts and to make their report on the second Monday in September. On the 8th of.

The plaintiff, as natural tutor of his infant child, claimed an inheritance in right of its deceased mother, which had descended to the latter as surviving heir of a deceased child by a former marriage. The claim was resisted on the following grounds : 1. That the deceased mother never accepted the succession of her deceased child. 2.

ArPEAU FROM THE COURT OF THE FOURTH DISTRICT, THE JUDGE OF THE THIRD PRESIDING. This suit was instituted on the 8th April, 1830. At the ensuing June term, it was continued by the defendant, who obtained an order to take the testimony of a witness residing in the State of Mississippi. On the 13th November, lite filed his interrogatories, and on the 17th, caused them to be served on the plaintiffs, with notice that on the 28th he would take the testimony of the witness.

On the 24th of October, 1828, Watkins sold to Crawford a {lot of ground, and received in part payment, the note of the latter, secured by mortgage. The note was endorsed to the plaintiff, duly protested, and legal notice given. On the 21st August, 1829, the lot was sold to pay the state and parish taxes, and Gordon became the purchaser.

The defendant, clerk of a court, charged for copies of the petition and citation, although they were made out, printed and furnished to him, by the plaintiff, at the expense of the latter. A charge was also made for certificate and seal to each copy of petition and citation; and a further charge for entering up judgment of non-suit against each defendant, notwithstanding it was recorded in a single entry.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p>

The opposing creditor was placed on the schedule of the insolvent for $ 525. Three other creditors were placed thereon, as having, in 1821, claims against the insolvent and his former partner, amounting ira all to $ 2700, the payment of which was assumed by his partner, upon a dissolution of the firm; but whether paid or not, the insolvent did not know. He exhibited credits and property to the value of $346, and stated that he had sustained losses to the amount of $ 250.

This was an action against the maker of a promissory note, made payable at the counting-house of Wm. Kenner and Co., • in New Orleans. • At the time the note became due, Kenner and Co. had a counting-house in New-Orleans; but it had ceased to exist at the inception of the suit. The plaintiffs failing to prove a demand, there was judgment of nonsuit, from which they appealed.

APPEAL PROM THE COTRT 01? THE FIRST DISTRICT. The plaintiff, in an order of seizure, took a rule upon the plaintiff in injunction, to show cause why it should not be dissolved, on the ground that the allegations in the petition were not true. Upon hearing, the injunction was dissolved, and the plaintiff appealed.

<p>If the appellant does not comply with the condition upon which the appeal has been granted by giving bond to prosecute the appeal, and suffers a year to elapse, the judgment becomes res judicata, and he cannot he relieved either by the District or Supreme Court.</p> <p>If the appellant does not comply with the condition upon which the grimted, by giving theappeai andsu? fers a year to elapse the judgment becomes res ‘cannofbe relieved •ither by the Du-trict or Supreme Court.</p>

This suit was brought to recover the sum of three hundred and sixteen dollars ninety-two cents, which the plaintiff alleged had been improperly charged to him in an account current, rendered by the defendant in 1828. The defence set up was, that in 1812, the commercial house of De la Teja, of which the defendant was a partner, had paid the amount claimed to satisfy a judgment which one Serna had recovered against the plaintiff.

The heirs of Elliot brought suit' to recover a lot of ground which belonged to their ancestor at the time of his death, and of which they alleged the defendants were in possession under an invalid title. It appeared that the ancestor died in New-Orleans in 1811, leaving a widow and minor heirs residing in South-Carolina.

<p>If a slave Re bought as a runaway, and is afterwards employed on a steam boat without permission from the owner, from which he absconds, the own-, cr can only recover the price paid for the slave.</p> <p>If a slave be bought as a runaway and is after-wards employed on a steam boat without permission from the owner, from which he absconds, the owner can only recover the price paid for the slave.</p>

<p>A proprietor may cancel at pleasure the contract with an undertaker to build ; but in the exercise of this right, the use of it must be considered as putting an end to the contract in all its parts and relations, and authorizes a valuation of the. expense and labour incurred by the undertaker, by other evidence than that of the written contract itself.</p> <p>The amount stipulated in a contract thus avoided, may be correctly used as a means to ascertain the just value of the work performed, but ought not to be considered in exclusion of all other testimony.</p> <p>Where architects and undertakers are called upon^to estimate the value of work and materials, and differ in their opinions, the lowest estimate will be taken.</p> <p>unless there be a contrary stipulation in a contract for building, the materials of an old house removed are, by custom, considered as belonging to' the undertaker, as are equivalent for his expense and labour, in removing them.</p> <p>A proprietor may ■cancel at pleasure the contract with an undertaker to build — but in the exercise of this right the use of it must he considered as putting an end to the contract in all its parts and relatinns, and au-thorises a valuation of the expense and labor incurred by the undertaker, by other evidence than that of the written contract itself.</p> <p>tract, thus avoided, may he correc-tiyusedasameans The amount sti-puláted in a con--°st vahfeTf a® work performed-hut ought not to he considered in therTes°tiinony. °</p> <p>Where;archiiccts arecalleíuponto e®timale th? val“c of work and mate-«ais,an(1 differ in lowest estimate Wlil he taken‘</p> <p>Unless there be a contrary stipulation in a contract for building, the materials of an old house removed are by custom considered as belonging to the undertaker, as an equivalant for his expense and labor in removing them.</p>

This was an action to recover from the defendant certain slaves, and the facts are substantially as follow: On the 20th April, 1811, Ephraim Dismukes, father of , the plaintiff’s, made a deed of sale, to Champness Terry, of the slaves in controversy. On the 5th November, 1811, Terry made a counter letter, by which he agreed to hold said slaves, in trust, for the plaintiffs, (then minor children of Ephraim Dismukes) until they became of age or were married.

The plaintiffs contracted with the defendants, to insure the freight of the brig Naiad, valued at 5000 dollars, at and from New-Orleans to Mobile, and at and from Mobile to Liverpool. The vessel, then under contract of charter party to load at Mobile, proceeded on the voyage and was wrecked before her arrival. At the time the insurance was effected, the defendants were not apprized that the vessel was under charter party; nor did they make any inquiry as to the fact.

The defendants objected to the swearing of the jury, on the ground that they were inhabitants of the city of New-Orleans, and members of the corporation. The court a quo, sustained the objection, and the plaintiffs appealed.

A creditor of the insolvent, took a rule upon the syndic, to shew cause, why he should not, within a given time, file a tableau of distribution, or be condemned to pay the amount of the claim. Service of the rule was made upon the syndic, who not answering, the rule was made absolute for the payment of the claim; and the syndic appealed.

On a motion to enter up judgment against the defendant’s bail, the latter filed an answer and prayed a trial by jury. The court a quo refused to receive the answer, and gave-judgment for the plaintiff, from which the bail appealed. 1. The proceedings against bail are to be tried summarily and without the intervention of a jury. — C. P. art. 235. The bail was entitled to a jury.

The cessio bonorum of the insolvents was accepted on the 11th December, 1829. At a meeting of the creditors, legally convoked, on the 19th January following, syndics were appointed; the proceedings before the Notary returned into court, and homologated on the 29th January, 1830.

<p>The deliberations of creditors need not be homologated.</p> <p>The charge of fraud against an insolvent must be made on the written depositions of a creditor, stating specially the acts of fraud.</p> <p>If the creditors refuse a discharge, the judge cannot grant one</p> <p>The deliberations of creditors need not be homo-logated.</p> <p>The charge of fraud against an insolvent must be made on the written depositioms of a creditor stoting specially the acts iof fraud.</p> <p>If the creditors refuse a discharge the judge cannot grant one.</p>

The defendant, at a public sale made by the plaintiff, as city marshal of New-Orleans, became the purchaser of a slave, and refused to pay the price or redeliver the property. This suit was brought to recover the price, or compel the defendant to restore the slave. T'he defendant set up the following grounds of defence: 1. That the marshal was without authority, to sell, as the City Court had no jurisdiction or right to issue process against real estate or slaves. 2.

APP~A~ PJIOM THE COURT OP THE PARISH AND CITY OP iEVi-ORLEANS. Opposition was made to the homologation of the tableau of distribution for this: That there was no account therein of certain notes which were deposited with John Hagan & Co. by the insolvent, and which formed part of the property ceded by the latter to his creditors.

<p>By the laws of Spain prescription ran against a married woman during coverture, for her pharaphernal rights.</p> <p>By the laws of Spáin prescription ran against a married woman during coverture for her phavapheinal rights</p>

<p>APPBAX, FROM THE COURT OF THE PARISH AMD CITY OF NEW-OREEANS.</p>

APPEAL PROM THE COURT OP THE FIRST DISTRICT, The plaintiff was a broker, and in that capacity received from one Franklin, a note, to be discounted. He refused, when called on, to deliver up the note; but. offered, in discharge of it, other notes which he held of Franklin.

The defendant was sued as the only heir of one Cooksey, who died indebted to the plaintiff in the sum of $425.

The homologation of the tableau filed by the syndics was opposed by certain creditors of the insolvent, because the Bank of the United States, and certain other banks, were placed on the tableau as creditors for the full amount of their debts, alleged to have been due them by the insolvent at the time of his failure, when said institutions had since received from the estates of Morgan, Dorsey & Co. and of William Kenner & Co. (who were debtors for the same debts to said…

The petition was filed on the 12th August, 1828 — to which the defendants opposed a general denial; the plea of prescription; and, further, they alleged that, by reason of the unskilful manner in which the plaintiff had constructed, for the steam-boat Pair Star, a certain engine, they had sustained damages to a large amount; which, together with moneys advanced to the plaintiff, they claimed in reconvention.

<p>If a claim be barred by prescription, it still may be offered by way of exception.</p> <p>a be barred by'prescrip-offereOy way of exception.</p>

This suit was brought to recover from the defendant a note of the plaintiff’s which the latter had intrusted to Chau-veau, a broker, to get discounted. It appeared from the evidence that Chauveau died suddenly, with the note in his possession, which was afterwards delivered to the defendant by Chauveau’s widow.

<p>APPEAL PROM THE COURT OP THE PIRST DISTRICT.</p> <p>The facts are stated in the opinion of the court, delivered by</p>

Suit was instituted in the Court of the First District against the rector and church wardens of Christ Church, the object of which was, to obtain the property on which the corporation had erected a church. When the cause came on for trial, the judge recused himself on the ground that, being the owner of a pew in the church, in his own right, he was. directly interested in the event of the suit.

The defendant was sued on his promissory note, and also for a year’s rent due to the plaintiff.

<p>If the damages assessed by a jury appear to be enormous and unsupported by the testimony, the judgment will be reversed.</p> <p>If the damages assessed by a jury appear tp he enormous and unsupported by the tes-timoney,the judgment will be reversed.</p>

Upon the application of the trustees of the College of Louisiana, a mandamus was served upon the defendant, requiring him to show cause why he should not pay to the applicants a sum of money to which they conceived them. selves entitled, under an act of the legislature. Upon hearing, the rule was discharged, and the trustees appealed.

This was an action on a breach of contract, wherein the jury found a verdict of $ 1000 for the plaintiff. On appeal, the Supreme Court not deeming the evidence conclusive, the cause was remanded for a new trial.

By an act of the Legislature of 1828, Henry Lainhart was authorized to raise, by means of a lottery, the sum of six thousand dollars; provided that a bond, with sufficient security, to the Governor be given, conditioned for the faithful drawing of the same, and for the expending so much of the sum raised under the authority of the act as may be necessary for the construction, and the application to the use, of a steam-engine made according to his new mode of generating steam…

This action was brought to recover the amount of a policy of insurance upon the schooner Volant, “trading between New Orleans and any port in the West Indies, United States or Gulf of Mexico, except Rio Grande, or Brasos of St. Jago.” It was admitted that the schooner sailed from New Orleans to Matanzas, where she arrived, and proceeded from thence to Savannah, on which voyage she was lost by one of the perils insured against, and within the period compri-zed in the policy.

APPEAL PROM THE COURT OP THE PARISH AND CITY OP 3VEW-OR1EANS. The defendant was the last and highest bidder, for a lot of ground offered by the plaintiff at auction, on a credit of six and twelve months, for a note satisfactorily endorsed. The defendant, on the day of sale, named to the auctioneer his endorser, who was approved of by the plaintiff.

<p>APPEAL FROM THE COURT OF THE FIRST DISTRICT.</p> <p>The plaintiff had leased to the defendant a lot of ground, and afterwards caused the lease to be annulled by a judgment to that effect, rendered. against the defendant. Notwithstanding this judgment, the defendant retained possession of the lot, and the present suit was brought to recover the rent, at the rate of thirty dollars per month, being the price agreed upon when the lot was first leased. The defendant pleaded in avoidance the judgment by which the lease was annulled, and denied having rented the lot since the rendition of the judgment. The plaintiff introduced parol proof to show that thirty dollars per month was the price ~it which the lot was first leased; that it was well worth that sum, and that the defendant had occupied the lot since the rendition of the judgment annulling the lease. To the introduction of this testimony, the defendant objected, on the ground that it was illegal and irrelevant to the pleadings. The objection was overrulled and the defendant excepted. The court a qua gave judgment in favor of the plaintifl for the amount of the rent due-and further decreed, that the defendant pay rent at the rate of thirty dollars per month, until he delivered possession of the lot to the plaintiff. The defendant appealed.</p>

The defendant and two others executed their joint and several note, payable to the plaintiff or order, at the counting-house of M. White, in the city of New-Orleans. Sometime after the note fell due, it was handed by White to an attorney for collection, who' instituted suit against the defendant.

This suit was brought to rescind the sale of aslave who, it was alleged, was in the habit of running away. The evidence showed that the slave run away once, while owned by the defendant, but was apprehended in a few days and committed to jail. The sale to the plaintiff was effected through a broker, who represented the slave as a good subject.

<p>The general received opinion of the words to abscond, is the act of a person who leaves any particular place clandestinely, or of one who conceals or hides himself.</p>

These actions were instituted by the plaintiff, as syndic under a forced surrender, of certain creditors of J. G. John-stone, to constrain the defendants to yield up, for the benefit of all the creditors, the proceeds of certain drafts, bills , of exchange, &c. transferred to them by the insolvent, to the fraud of the creditors generally by such illegal preference.

This was an action upon a contract of agency, to obtain an indemnity from the agents, for a loss arising from their negligence. The negligence charged, was the omission to give to the endorsers due notice of the dishonour of a note. The evidence adduced on the trial is correctly stated in the opinion of the court delivered by

APPEAL prom this district court for the first JUDICIAL DISTRICT. The plaintiff, in this case, attached 250 coils of bale rope, alleging it the property of J. C. Buckles, a non-resident. L. H. Gale, the consignee of the rope, intervened, alleging a lien on it for balances, no liquidation of accounts was shewn, leaving a balance in favour of Gale, at the time of the attachment. There was judgment for the plaintiff, and the intervening party appealed. 1.

This suit was brought on a promissory noté, in the following words: — “Three months after date, we promise to pay William Bennett and Hugh Grant, or order, four hundred and twenty-one dollars and sixty-six cents. Value received.” Signed “Allison & Rowe.” Suit had been previously brought against Thomas Roe, one of the drawers, and judgment rendered in favor of the same plaintiffs for the amount of the note; Allison having obtained a stay of proceedings and respite.

In October, 1826, the defendant sued out an attachment against the property of Joshua Cox, a nonresident, which - was levied on certain incorporeal rights and credits, in the hands of Carleton & Lockett, attorneys of Joshua Cox, by giving them notice of the attachment. They appeared as counsel for the absent debtor, against whom judgment was rendered, and executiou levied on the same rights and credits, in April, 1830.

The defendant, Gomez, being sued on an account, offered in compensation an obligation, transferred to him by Cajegal, a former partner of the plaintiff. This document, which was signed by the plaintiff and other partners, certified that Cajegal had a share or interest to .the value of $ 402, in a certain bakery, its utensils and management. The plaintiff had judgment for the amount claimed, and the defendant appealed.

The .plaintiff was farmer of the taxes on drays, carts, and other vehicles, imposed by an ordinance of the city council, promulgated in French only. As farmer he prosecuted various delinquents, and failed. He instituted this suit for indemnification. There was judgment for the defendants, and the plaintiff appealed. No law is binding on the public unless it be published both in the English and French languages.

The object of this suit was to compel the defendant to refund money, which the plaintiff alleged he had paid him at an usurious rate of interest. The defendant excepted to the petition, on several grounds which are stated in the opinion of the court. The court below sustained one of the exceptions, and the plaintiff appealed.

<p>APPEAL PROM THE COURT OF THE FIRST DISTRICT.</p> <p>The facts are fully stated in the opinion of the court, delivered by</p>

The plaintiff alleged he purchased from the defendant a quantity of tobacco, which the latter refused to deliver; and the present suit was brought to recover the property, or its' value, which was alleged to be $800, and damages. The court a quo gave judgment for the property, and in case it was not or could not be delivered, he assessed the plaintiff’s damages at $192 76.

The plaintiffs attached certain merchandise as the property of the defendants, in the hands of Reynolds, Byrne & Co. who intervened and set up a lien 6n the goods seized, as factors of the defendants. It appeared that the goods were purchased by the defendants, on the faith of a letter of credit given to them by the intervening parties, and it was admitted that the latter had paid for the goods.

APPEAL PROM THE .CQURT'.qP .THE- FIRST' DISTRICT. On the X6th July, 1825, She plaintiff convéyed to Antoine Abat a tract of land,\situated in thfe parish of Plaquemine, containing about forty-twd arpents front, with forty in depth, with condition that he should sell the same before the first day of February, then next ensuing, by public or private sale, for the best price he could get, and apply the proceeds, first, to the payment of the costs of the deed of sale and…

Thea defendants, N. & B. Hart, sued on a promissory note by the plaintiff, the payee, alleged it formed part of the consideration in a purchase of slaves, which the plaintiff guarantied should not abscond or prove sickly. The notarial act showing no such condition as that contended for. The defendants offered H. M. Shiff to shew that such was the condition. To his admission the plaintiff objected, which being sustained, the defendant excepted.

The insolvent and the defendant were partners in the construction and navigation of steam-boats; the latter acting for several years as master and clerk. During thii mutual advances and disbursements were made, present action was brought to recover from the deft balance which the plaintiff alleged to be due hi: defendant pleaded the general issue ; prayed for a se: of accounts, and judgment for such balance.as sb found to result in his favour.

The plaintiff claimed from the defendant a certain sum for the rent of a house and lot. The latter pleaded,, first, that he was not indebted in any sum whatever; second, that the plaintiff was not the owner of the premises at the institution of the suit; and thirdly, compensation for repairs. The plaintiff produced no title to the premises, except a former occupancy by himself, which was continued by others in his right for some years.

, The defendant purchased a lot of ground for the price of $6000, for which he executed four notes, secured by mortgage on the property. Two of those notes, amounting to $2000, were transferred to the plaintiffs, who obtained an order of seizure, under which the property was sold for $4005.

Bertrand Gravier became insolvent in France in 1783, and entered into a concordat with his creditors, by which, on ’ certain conditions, he obtained an indefinite respite for the payment of their claims.

This suit was brought to recover from the defendant certain articles of plate and jewellery which had been deposited with him by the insolvent previous to his failure, and which formed part of the property surrendered to his creditors. The defendant admitted the receipt of the articles, but alleged they were pawned to him by the insolvent as security for a debt. It appeared from the evidence that the articles were not pawned, but delivered to the defendant for safekeeping.

The plaintiff, Jean Joseph, instituted this suit to compel the defendant Moreno to the performance of a promise given the plaintiff, to convey to him one-half of a tract of land, situate in the parish of Plaquemines, of three-and-a-half ar-pents front, and also to be declared part owner of a slave in possession of defendant. , The plaintiff adduced a written promise from Moreno to convey him one-and-a-half arpents of the above-mentioned tract.

When this cause was called for trial, a continuance was prayed for on the affidavit of defendant’s counsel, setting forth that a material witness, by whom he expected to prove certain facts, was absent; and that his knowledge of what this witness was expected to prove, was derived from his client, who was absent from the state. The court a quo refused to continue.

The plaintiff claimed from the defendant $ 408, for medical services rendered to the deceased and his family. The court a quo was of opinion, from the testimony, that the claim was just, and gave judgment against the curator, from which he appealed.

The object of this suit, on the part of the wife, was to obtain the possession and control of her paraphernal estate, in which she succeeded, but was condemned to the payment of costs. A practising lawyer was appointed curator ad hoc to represent the absent defendant, residing in France, who took a rule on the plantiff, to show cause why she should not pay him a fee of $500, for services rendered in the suit. The court a quo made the rule absolute, and the plaintiff appealed.

On the 25th of November, 1830, the plaintiffs, under an order of the Court of Probates, exposed to sale at public auction two slaves (the mother and daughter), which were struck off to the defendant, as the last and highest bidder for the price of $1160, payable in two equal instalments, for notes satisfactorily-endorsed with mortgage. This suit was brought to compel the defendant to comply with the terms and conditions of the sale.

■ The syndics of the estate of Spencer instituted suit against the defendants, to make them disgorge various moneys and property, which they obtained from the insolvent when in failing circumstances, to the fraud of other creditors. The plaintiffs offered one Frost, to prove that the defendants had admitted, in his presence, their knowledge of the insolvency at the time the moneys and property were received.

<p>A purchaser of town lots in the city of New-Orleans from the United States is exempt from taxation for five years after their alienation.</p> <p>A purchaser of town lots in the city of New-Orleans from the TJ. States is exempt from taxation for five years after their alienation.</p>

The plaintiffs obtained judgment against Paxton & Co.’ in the court of the United States, on the 23d January, 1830, for $4709, which was signed on the 3d February following’ and on the same day ajl. fa. issued. In part satisfaction of said judgment, Paxton & Co. transferred to plaintiffs by no-torial act, a judgment in their favour in the parish court, for the parish of Orleans, against C. C. Hofner and brig General Morales, for the sum of $1455.

The plaintiff, as surviving partner of Reymond & Peyta-yin, instituted suit in 18~7, on a note of the defendant given to the late firm, the 13th September, 1806, for $974 37, pay. able one year after date. The defendant pleaded the general issue, admitted his signature to the note, but in an amended answer alleged payment. There was a verdict and judgment for the defendant.

The plaintiffs entered into bond with the city treasurer as sureties for the faithful discharge of his duties towards the corporation. The defendants caused this bond tobe recorded in the office of the recorder of mortgages, who certified it as an incumbrance on the property of the sureties. This suit was brought to obtain the cancelling of the record of the bond, and a decree to that effect having been rendered in the court below, the defendants appealed.

<p>APPEAL PROM THE COURT OP THE FIRST DISTRICT.</p> <p>The facts are fully stated in the opinion of the court.</p>

The plaintiff alleges he has applied to the defendant, who is recorder of mortgages for the city and parish of New Orleans, for a certificate to shew there is no privilege or mortgage on a house and lot belonging to him-, on the corner of New Levee and Julia streets, except one in favor of the Bank of the United States, and the recorder refuses to grant the certificate, in the form he requires it.

The plaintiff and defendant entered into a written contract, by which the former undertook to construct a building agreeably to a plan furnished at the time. It was afterwards found necessary, in consequence of the form of the lot, to deviate from the original plan. This alteration was communicated to the defendant, who acquiesced in the change, and observed to the plaintiff he should risk nothing by it.

<p>The supreme court will not proceed to the examination of a case in which it is not evident that the whole record is before them.</p> <p>The supreme court wilt not proceed to an examination of a case in which it is ~ot evident that the whole record ii before them</p>

The plaintiff attached certain moneys in the hands of Prieur, mayor of the city, which was claimed by the intervening parties, (attorneys at law) under the following assigRment from the defendant: D. Prieur, Esq, Mayor of the city of New-Orleans; Please deliver to Messrs.

This suit was brought to compel the defendant to retro-cede to the plaintiff, a tract of land, which the former had purchased at a sale by the treasurer of the state for taxes. It appeared from the evidence, that the agent of the plaintiff had demanded of the defendant a retrocession of the land, at the same time making him a tender of the purchase money, costs, and fifty per cent interest.

Agenor Bosque, under whom the plaintiffs claim, purchased a plantationin the parish of Plaquemines, at the sale of the succession of Margurite Troxler, wife of Paturel, containing eleven and two-third arpents front, by the depth of forty; and described in the act of adjudication by certain metes and bounds. On actual measurement, made according to the boundaries described in the act of sale and adjudication, if was found to contain thirteen arpents and twenty~two toi-ses.

The defendant was imprisoned on a ca. sa. by the plaintiff and made a surrender of his property before a notary, at which his creditors failed to attend. The proceedings were returned into court,- and at the expiration of ten days were homologated, without opposition, and the defendant discharged out of custody, without any formal order of court.

<p>By the English courts it was considered a breach of faith, on the part of the vender, to employ bidders or puffers at auction. If the owner wished to prevent a sale under a certain price, lje must proclaim the lowest bid he would take in putting up his goods.</p> <p>Th<- purchaser could avoid a sale at auction, made by the aid of puffers or private bidders, on the ground that his assent had been obtained by fraudulent practices, on the part of the vender, or his agent.</p> <p>A purchase made at auction, is similar to a private contract. In both assent is necessary in each party. And an offer to sell at auction, to the highest bidder, is not binding, unless the auctioneer assent to the bid that is made.</p> <p>So where property is put up at auction, and the plaintiff becomes the highest bidder, the auctioneer may reject his bid, and withdraw the property, unless he will bid a certain sum more.</p> <p>By the English courts it was considered a breach of faith on the part of (he vender to employ bidders or puSers at auction. If the owner wished to prevent aa sale under a certain price, he must; proclaim the lowest bid he would take in putting-up, his goods.</p> <p>The purchaser could avoid a sale at auction made by the aid of puffers or private bidders on the ground that his assent had been obtained by fraudulent practices on the part of the Vender or his agent.</p> <p>A purchase made at auction is similar to a private contract: in both assent is necessary in each party. And an offer to sell at action to the highest bidder, is no.t binding unless the auctioneer assent to the bid that is made.</p> <p>perty is put up "at becomes the highest bidder the auctioneer may reject his bid, proper*'unless^e wilIbld a certain</p>

<p>APPEAL PROM THE COURT ■ OP THE PARISH AND CITY OP NEW-ORLEANS.</p> <p>The facts are stated in the opinion of the court, delivered by</p>

This was a rule on the judge of the sixth judicial district,, presiding at the seventh, to shew cause why a mandamus, should not issue to him to grant an appeal from a judgment, rendered by him, overruling certain exceptions to an attachment sued out in the parish o.f Concordia, by L. Millaudon vs. P. M. Lapice. In answer to the rule, the judge replied that the judgment ¡was not final — but interlocutory, and no appeal would lie from such.

This suit has been of long standing, and embraces a variety of money transactions, which cannot be explained in detail; nor would it afford any useful information to do, so All the facts necessary to a full understanding of the case, are stated in the opinion of the court.

The plaintiffs sued out a writ of attachment against the propei ty of the defendant, a nonresident, and obtained judgment. The interveners opposed the sale of a quantity of hats, which had been attached, and which were sold by them to the defendant.

<p>APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW ORLEANS.</p> <p>The facts are fully stated in the opinion of the court delivered by</p>

<p>APPEAR FROM THE COURT OP THE PARISH AND CITY OF NEW-ORLEANS.</p> <p>The facts are stated in the opinion of the courtdeliveredby</p>

In the year 1814, and for some years before, the defendant owned jointly with his uncle, Edward Pearse, a plantation and slaves in the parish of Plaquemines; the share of the defendant being considerably greater than that of his uncle,, who was indebted to the former for advances to nearly, or quite, the amount of his interest in said property.

This was an action upon an account current,in which there was an item of three thousand and nine hundred dollars, as an advance to the defendant’s brother in New York, by authority of defendant’s letter of credit of 18th July, 1826, directing the plaintiff to open a credit to his brother, F. Ro-mage, for five thousand dollars, to be drawn as might be wanted. The defendant pleaded the general issue, and reconvened for $161 67.

The defendant, who owned a lot adjoining he plaintiff’s, proceeded to erect a wall on the dividing line, placing six inches of it on the plaintiff’s lot. The plaintiff prayed that the defendant be decreed to demolish the wall; that he pay $600 damages, and be enjoined from further proceedings, &c. The evidence shewed that the lot of the plaintiff was first built upon, but that an open space, remained between his building and the dividing line.

This action was brought to recover of the defendants the value of the schooner Constitution and her cargo, insured by them hence to Yera Cruz, with a warranty by the assured, that the cargo and vessel were American, and that the latter should not force the blockade.- The defendants pleaded non-compliance with the warranty.

At the instance of the mother and tutrix, a meeting of the family and friends of her minor children was convoked to deliberate on the propriety of accepting from her a special mortgage, in lieu of the general mortgage bearing on the whole of her property — part of the members, including the under tutor, were of opinion that the .security offered was .sufficient to secure the rights of the minors, and-that the special moi’tgage ought to be accepted.

A former suit by the plaintiff against the defendant, for the same object for which this is brought, had been discontinued. In this suit, the defendant sought to avail himself of his answers to interrogatories which had been propounded to him in the first. The judge a quo decided that the answers could not be read in evidence, and the defendant took a bill of exceptions. There was judgment for the plaintiff in the court below, and the defendant appealed.

<p>A donationpro~pter nuptias cannot be made to the prejudice of creditorø.</p> <p>. , .. 4 donation prop-ierb¡upíias cannot be made to prejudice of credi-tots’</p>

The circumstances of this case are these. In 1812, De Gray,, a planter, became insolvent and filed his petition and schedule in the superior court for the first judicial district— amongst the property surrendered was a tract of land at Ba-rataría, which the syndics having in vain offered for sale, prayed the court to homologate the tableau of distribution as it stood.

<p>m ♦ ■ The third possessor of property subject to'several mortgagees and who has purchased from his vender a right to the first mortgage, when (he property is sold by the sheriff on the application of subsequent mortgages, is entitled to he first paid out of the proceeds, although he becomes the purchaser himself.</p> <p>A mortgage in favor of an absent person, executed and registered by the mortgager, although not accepted by the mortgagee, takes precedence of a p0Sterior mortgage duly accepted and registered.</p> <p>The third possessor ofproperty subject to several mort 'gagees and who lias purchased from his vender a right to the first mortgage, when the property is sold by the sheriff on the application of subsequent mortgages is entitled to be first paid out of the proceeds, although he becomes the purchaser himself.</p> <p>A mortgage in favor of an absent person, executed and registered by the mortgager, although not accepted by the mortgagee, takes precedence of a posteri- or mortgage duly accepted and regis tered.</p>

In April 1826, Margaret Decoux, wife of J. B. Bernard Hiliare Decoux, and Julia Decoux, widow of Louis Pel-lerin, deceased, legal heirs and representatives of Charlotte Julia Labbé, deceased,… Held: 3. Because it purports to be an hypothecary action for the exercise of a right the petitioner’s ancestor had to some property, which they allege to have been sold by the husband, and do not state the amount, or specify the property against which this action is to be exercised: 4.

APPEAL ÍSOM THE COURT OP THE FIFTH DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING. On the 28th of February, 1828, Magdelaine Borel, sold to the defendant, F. Fusililer, several slaves for 3,500 dollars.

This suit was instituted to recover of the defendant the two first instalments of the purchase money of seven slaves, sold by the plaintiff to the defendant for three thousand five hundred dollars, on the 28th February, 1828.

LANDRY. This case arose on the opposition of several creditors to the homologation of the tableau of distribution of the estate of M. Collins, deceased. On the 20th of October, 1828, William Moore, administrator of M. Collins’ estate, filed his tableau in the court of probates, and prayed for its homologation.

This is an action of slander, for slanderous words spoken of and concerning the plaintiff, by the defendant.

This is an anomalous action, institutéd in a civil form, to punish a criminal offence.

This suit is commenced to compel the defendants to pay damages for intervening in a former suit, and procuring the dissolution of an attachment sued out, and the alleged illegal dismissal of the plaintiff’s suit. The petitioners allege they commenced a suit against one James M’Clelland, in March, 1829, to recover a note of If 190 given for a partnership debt, in the purchase of cattle.

The petitioner alleges she was married to one Francois Richard in 1823, and in 1824 Louis Richard obtained judgment against her husband for a sum of money, and in 1826, finding her husband much embarrassed, she obtained final judgment of separation of property, for the sum of $1884 77, the amount she brought into marriage; that before her judgment was satisfied, the heirs of Louis Thichard, now cteceas-~d, had issued execution against her husband, and seized his property, to…

This suit is brought by the plaintiff as heir of John Mug-;,ih, to recover from the defendant a negro boy, which is al-iged to have been purchased by John Muggah in New Orleans, who took the.act of sale in his own name and right. The defendant took possession of the boy and holds him on the ground that Muggah purchased the negro with the defendant’s money.

APPEAL PllOM THE COURT OF THE FIFTH DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING. This suit commenced by injunction. The plaintiffs, about the beginning of the year 1829, put sundry notes, debts, and accounts into the hands of Luke Lesassier, an attorney at’ law, to collect, for their benefit and use. These claims had been transferred to the plaintiffs, to indemnify them on account of a suretyship to William and John Simons.